R v Martin & Ors
[2009] VSCA 142
•18 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 836 of 2007 |
| v | |
| TERRY MARTIN | |
| and | |
| THE QUEEN | No 878 of 2007 |
| v | |
| JOHN EDWARD LEES | |
| and | |
| THE QUEEN | No 881 of 2007 |
| v | |
| WAYNE HOMERSHAM | |
| and | |
| THE QUEEN | No 706 of 2008 |
| v | |
| NIGEL PRETTY |
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JUDGES: | VINCENT and NETTLE JJA and VICKERY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 April 2009 | |
DATE OF JUDGMENT: | 18 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 142 | |
JUDGMENT APPEALED FROM: | R v Martin & Ors (Unreported, County Court of Victoria, Judge Gullaci, 1 October 2007) | |
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CRIMINAL LAW – Sentence – Aggravated burglary – Armed robbery – Causing serious injury intentionally – Common assault – Possession of a drug of dependence – Theft – Home invasion – Sanctity of home and domestic security – Prospects of rehabilitation – Whether moral culpability reduced by applicant’s limited intellectual ability – Whether sentences manifestly excessive – Whether there was double punishment – Homersham’s application refused – Lee’s application refused – Martin’s application refused – Pretty’s application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C T Ryan S C | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant (Martin) | Mr C G Mandy | Andrew George Solicitors |
| For the Applicant (Lees) | Mr T Kassimatis | Victoria Legal Aid |
| For the Applicant (Homersham) | Mr L C Carter | Robert Stary Lawyers |
| For the Applicant (Pretty) | Mr T E Wraight | Pica Criminal Lawyers |
VINCENT JA:
The applicants, Homersham, Lees and Pretty pleaded guilty in the County Court on 14 May 2007 to two counts of aggravated burglary (counts 1 and 6), two of armed robbery (counts 2 and 3), one of causing serious injury intentionally (count 4) and one of common assault (count 5), (Presentment C0504755.2).
In addition to those counts, Martin also pleaded guilty to the possession of a drug of dependence (count 7) and a count of theft, (Presentment, C0504755.1).
Homersham had 19 prior convictions arising out of seven court appearances. He was aged 42 years at the time of the offences. Lees had 58 such convictions arising out of ten court appearances and was aged 38. Martin had 14 prior convictions arising out of eight court appearances. He was aged 42 years while Pretty had 36 prior convictions arising out of nine court appearances and was aged 25 years.
The Circumstances
The judge, summarised the circumstances relating to the offences in his sentencing remarks:
Joanne Martin was [the applicant] Martin’s sister-in-law. She was the estranged wife of Martin’s brother. Gebus was Joanne’s partner at the time. On Presentment No. C0504755.1 Mr Martin you are charged that you, on 8 July 2005, you broke into Joanne’s car and stole a necklace and mobile phone.
On Presentment No. C0504755.2, I have set out what each of you have pleaded guilty to. The circumstances in so far as that presentment is concerned are as follows: On Saturday, 20 August 2005, you Mr Martin met Homersham and Mr Pretty at their boarding house at 69 Heights Street, Footscray. You discussed with them, threatening or harming a person, being a reference to Mr Gebus. Neither you, Mr Homersham, or Mr Pretty know Gebus or Joanne Martin. Mr Martin, you promised to give them drugs if they did so. Gloves and balaclavas were handed around at this meeting.
At about 8:30pm you, Mr Martin, Mr Homersham and Mr Pretty collected Lees, Mr Lees, at his home in Altona Meadows. Mr Lees was informed of the plan. Mr Martin, you gave Mr Lees an axe/pick handle and, at this time, you, Mr Homersham were armed with a knife. You, Mr Pretty were armed with two meat cleavers. In addition to the axe/pick handle, you, Mr Lees further armed yourself with a shortened gold club and a pair of socks containing two billiard balls.
At about 10:00pm, you, Mr Martin, drove the other accused to Sydney Crescent Lalor. You made enquiries or carried out surveillance and you were able to point out No. 20 where Mr Gebus resided with his elderly parents. You informed the other accused that Gebus would be in the bungalow at the rear of the premises. You remained in your car and the other accused put on gloves and balaclavas, climbed over the fence to get to the back of the premises and burst into the bungalow.
At that time, Mr Gebus and Joanne Martin were in bed watching television. You, Mr Homersham, went to the side of the bed where Joanne Martin was and held her down and in your other hand you held the knife. You Mr Pretty, jumped on the bed and threatened Gebus with two meat cleavers that you were wielding. Mr Gebus put his hands up to protect himself and grabbed hold of one of the meat cleavers resulting in a cut to his right hand. Mr Gebus struggled with you, Mr Pretty.
In the course of that struggle, Mr Homersham, you stabbed Mr Gebus in the left leg. You Mr Lees, stood over the top of Pretty and tried to strike Gebus with a golf club. You struck Gebus on the left wrist and with the axe handle. Mr Homersham, you then stabbed Mr Gebus to the right leg and then to the right upper chest. Mr Gebus struggled with the group of you and he managed to push you off the bed.
You then demanded cash, drugs, jewellery and credit cards. Mr Gebus handed over his necklace to you, Mr Pretty and his watch to you Mr Lees. Joanne Martin picked up some jewellery from the bedside table and threw it at the attackers. The jewellery included a watch a gold coloured bracelet with some crystals and a ring with some diamonds. There was (sic) further items of jewellery and the accused took those items.
Mr Gebus informed you that he had nothing in the bungalow and that whatever he had was in the house and that his elderly parents were in the house. You, Mr Pretty and Mr Lees, armed, walked Mr Gebus from the bungalow to the house. You, Mr Homersham, remained in the bungalow with Joanne Martin.
In the house, Mr Gebus emptied Joanne Martin’s handbag. You, Mr Lees, took the purse from the handbag. You said to Gebus ‘Where’s your fucking parents? Go and get them. I want all their fucking jewellery. I want everything they’ve got’. Mr Gebus informed you that his parents were 70 and 80 years old, on a pension and had nothing. He offered you a DVD player. You, Mr Lees, took the DVD player and you then left the property by the back fence. You tried to make your way back to Mr Martin’s car but could not find it.
You, Mr Pretty and Mr Lees, as you were moving to the back door of the house, Mr Gebus’ mother opened her bedroom door. She asked what was going on, and Mr Gebus yelled out to his parents to go back to bed. He managed to convey to his mother that she should call the police.
You, Mr Pretty, returned to the bungalow with Mr Gebus in the bungalow. There was further screaming and yelling. Mr Gebus screamed at the two for you to leave and told you to take the video recorder that was in the bungalow. Before leaving, you, Mr Homersham, demanded Joanne Martin’s mobile phone. She gave it to you. You then left the property by climbing over a side fence. The time was about 10:15. Mr Gebus and Joanne Martin went into the house while the police were contacted and, ultimately, an ambulance attended. You, Mr Homerhsam and Mr Pretty made your way back to Martin’s car. You then drove off. You, Mr Lees, were arrested about 75m away from the premises at about 10:20pm. At that time, you were in possession of Joanne Martin’s purse, watch, bracelet and Mr Gebus’ watch and you were also located with a balaclava and gloves.
As a result of the attack on the victims, Mr Gebus was admitted to the Royal Melbourne Hospital and discharged after two days. He suffered the following injuries: (1) a superficial laceration to his right hand; superficial stab wound on his left shin; a two centimetre stab wound on his right calf and a two centimetre stab wound to his chest that punctured the top of his lung causing blood to drain into the lung.
Joanne Martin, as a result of the assault, suffered scratches and abrasions to her chest and neck area …
Homersham and Lees were each sentenced to imprisonment as follows:
Count 1 – 5 years
Count 2 – 3 years
Count 3 – 3 years
Count 4 – 4 years
Count 5 – 12 months
Count 6 – 4 years
12 months of the sentence on count 4, 6 months of that imposed on each of counts 2, 3 and 6 and 3 months of that imposed on count 5 to be served cumulatively upon the sentence on count 1 and each other creating a total effective sentence of 7 years and 9 months in respect of which a non-parole period of 5 years and 9 months was fixed.
Pretty was sentenced to the following terms of imprisonment:
Count 1 – 4 years and 6 months
Count 2 – 2 years and 6 months
Count 3 – 2 years and 6 months
Count 4 – 4 years and 6 months
Count 5 – 9 months
Count 6 – 3 years and six months
9 months of the sentence on count 4, 6 months of that imposed on each of counts 2, 3 and 6 and 2 months of that imposed on count 5 to be served cumulatively upon the sentence imposed on count 1 and each other, making a total effective sentence of 6 years and 6 months with a non-parole period of 4 years and 5 months.
Martin was sentenced on Presentment C0504755.2 to the following terms:
Count 1 – 5 years
Count 2 – 3 years
Count 3 – 3 years
Count 4 – 4 years
Count 5 – 12 months
Count 7 – 6 months
12 months of the sentence on count 4, 6 months of that imposed on each of counts 2 and 3 and 3 months of that imposed on each of counts 5 and 7 to be served cumulatively upon the sentence imposed on count 1 and each other, making a total effective sentence in his case of 7 years and 6 months.
On Presentment C0504755.1, he was sentenced to:
Count 1 – 6 months
3 months of which was to be served cumulatively upon the total effective sentence of 7 years and 6 months imposed on presentment C00504755.2. A non-parole period for the offences in both presentments of 5 years and 7 months was fixed in his case.
All four have applied for leave to appeal against the sentences imposed upon them.
The Applications for Leave to Appeal Against Sentence
In his sentencing remarks, before addressing their specific situations the judge stated (inter alia) –
I have considered the submissions of each counsel that this offending is not at the higher end of this type of offending to come before these courts and have determined that the offences of aggravated burglary, armed robbery and intentionally cause serious injury are at the higher end of these types of offences to come before these courts for the following reasons: (1) This was a well planned and executed home invasion; (2) each of the offenders were wearing disguises being balaclavas and wore gloves in order to prevent identification and/or scientific evidence being left behind such as fingerprints or DNA; (3) Each accused was armed, one with a knife, one with two meat cleavers and the other with a pick or axe handle and a golf club and some billiard balls in socks. (4) Once inside the premises the invaders attacked Mr Gebus whilst he was lying on the bed. (5) You, Mr Homersham, stabbed Mr Gebus a number of times including one stab wound to the chest whilst he was under attack from two other offenders and lying on the bed; (6) The invasion occurred at night in frightening circumstances and was followed by a second invasion of the house where Mr Gebus' elderly parents were living. This occurred, when the offenders were not satisfied with the property or goods obtained from the occupants of the bungalow. (7) The armed robberies occurred in the above circumstances on soft targets in their own homes. (8) The injuries inflicted on Mr Gebus were serious and were potentially life threatening. (9) The impact on the two victims, especially Mr Gebus has been severe and is likely to continue for the foreseeable future.
…
During the plea hearings I indicated to defence counsel that I was proposing to request the Crown to make submissions as to the range of appropriate sentencing in respect of each of the accused. Each counsel including the Crown prosecutor referred the court to the sentencing snapshots of the Sentence Advisory Counsel in respect to aggravated burglary, intentionally causing serious injury and armed robbery. Although the statistical analysis provided some guidance, I sought specific assistance from counsel as to an appropriate range in the specific circumstances of the offending of each accused. I did so pursuant to R v. S [2006] VSCA 134. There the Court of Appeal indicated that as follows: ‘The prosecutor should be ready to make submissions about the sentencing range applicable to the offence for which the person is to be sentenced.’ [1]
…
I have considered all counsel's general submissions to the range applicable to the current offending and have concluded as follows: (1) the statistical snapshots are of limited value as the mix or range of offences vary greatly and the circumstances of the offending reflected in those snapshots are difficult to ascertain. (2) The personal circumstances and prior convictions of the accused sentenced are not available to the court in any detail. (3) I have determined that each case needs to be considered in light of the circumstances of the accused, the offences that he has pleaded guilty to, and other aspects of the sentencing process that the court is required to engage in, in order to determine an appropriate and just sentence.
I turn to the issue of parity. I have considered the submissions of counsel and have concluded that subject to the comments and conclusions I have arrived, in respect to Mr Pretty, that each of the accused are ultimately to be sentenced in a similar, or, in fact, the exact manner.
In my view, when one takes into account all circumstances of each accused, it is clear, and I am satisfied beyond reasonable doubt, that each of you understood that you were party to what occurred, in respect to the invasion of the bungalow, and that there are good reasons as set out in respect to each of the accused in my sentencing remarks, why each accused should be treated in a same, or similar, manner.
I turn to the question of double punishment. In determining the appropriate sentences to be imposed in respect to each of the accused I have firmly kept in mind that the offences occurred over a short period of time and in the one course of criminal conduct. I have concluded that Count 1, the aggravated burglary on the bungalow, is a serious example of that type of offence. I have moderated the sentences imposed in respect of the offences that occurred inside the bungalow to ensure that I avoided double punishment in respect of each accused. [2]
[1]Sentence 184-185.
[2]Sentence 185-186.
These remarks are significant and have been included not only for the statements of principle contained in them and the facts found by his Honour, but because they demonstrate the considerable care with which he approached his task.
The Application for Leave to Appeal by Homersham
This applicant has contended that –
1.The Judge erred in finding that the Applicant had limited prospects of rehabilitation.
2.The Judge erred in failing to take into account that the moral culpability of the Applicant was reduced by his limited intellectual ability.
3. The Judge erred in failing to give any weight to the circumstance that incarceration would be more onerous on the Applicant due to his vulnerability to panic attacks and anxiety.
4. In all the circumstances;
a) the total effective sentence; and
b) the non-parole period
are manifestly excessive.
Ground 1
In support of this ground, counsel for Homersham argued that the factors upon which his Honour relied in his assessment that that applicant’s prospects were ‘limited’, were incapable of supporting this conclusion when regard was had to the extensive period (from the age of 25) during which his contact with the Courts was relevantly minimal, and, bearing in mind that he had never served a period of incarceration at any stage.
What his Honour said on this aspect was –
I have considered all the material available to me and I do not accept Miss Lechner's[3] conclusion that you do not pose a threat to the community or that the risk of you re-offending is minimal for the following reasons: (1) You have had convictions for violence in the past. (2) You have demonstrated a capacity for significant violent conduct in the current offending. (3) You are still using drugs and there is an ever present prospect that you will re-offend in a similar manner in the future whilst you are under the influence of drugs. (6) She concluded that you reported symptoms of depression in the past. (7) that you would benefit from inpatient drug rehabilitation. Mr Simons,[4] Exhibit H2, concluded inter alia; (1) That you had a history of anxiety and panic disorder; (2) That you are a person of limited intellectual functioning; (3) That your limited intellectual function would prevent you from seeing the potential outcome of your actions. (4) That you require significant treatment in respect of your drug abuse, and (5) That you reported a history of depressive symptoms.[5]
…
I have considered and determined that you have limited prospects of rehabilitation. You have an unresolved lifelong drug problem. You have little or no support structure in the community and your long term partner has her own difficulties including alcohol abuse. However, you have managed to stay out of trouble for many years and this must be taken into account in your favour.[6]
[3]Ms Lechner is a forensic psychologist whose report on the applicant was tendered by his counsel.
[4]Mr Simons is also a psychologist whose report was before the Court.
[5]Sentence 187.
[6]Sentence 189.
His Honour was entitled to make these findings of fact and it is understandable, given the nature of the offending and the other matters to which he adverted, that he possessed some reservations concerning the applicant’s capacity to keep himself out of trouble in the future. Nevertheless, as his Honour also pointed out, and notwithstanding his disabilities and underlying problems, the applicant had managed to do so relatively well over many years and this had to be, and obviously was, taken into account.
We are unpersuaded that error has been demonstrated and this ground fails.
Ground 2
There is no substance in this complaint. His Honour accepted the submission of counsel that –
… your low intellect reduces your moral culpability and requires that both specific and general deterrence be sensibly moderated,[7]
stating
I have considered and determined that your low intellectual function is to be taken into account by the court and that it should, to some extent, reduce the impact of both specific and general deterrence. However, in my view, both are still significant matters for the court to take into account in determining the appropriate disposition.[8]
[7]Sentence 188.
[8]Sentence 188.
Although the ground asserts that the judge did not have any regard to the applicant’s level of intellectual functioning, he obviously did. Accordingly, the matter has been approached as a complaint that inadequate weight was attributed to this consideration. The judge’s sentencing remarks do not contain any indication of error either by way of commission or omission and the complaint effectively constitutes a particular of the claim of manifest excess and will be addressed in that fashion.
Ground 3
His Honour did advert to and indicate acceptance of the unchallenged evidence and submission of the applicant’s counsel that imprisonment would be more onerous for his client by reason of his underlying anxiety and vulnerability to panic attacks. Although he did not specifically so state, there is no reason to suspect that he may not have taken the evidence into account. This ground lacks merit, but again whether adequate weight was attributed to this consideration is a matter that we have taken into account when considering the claim of manifest excess.
Ground 4
It was stated by Winneke P in remarks with which Brooking JA agreed in DPP v Jovicic[9] that ‘crimes such as these – strike directly at the heart of people’s domestic security and their capacity to feel safe in their own homes.’ The reasons for adoption of this approach to offending of the kind under consideration hardly require explanation or elaboration. They reflect the gravity with which the violation of one’s home is reasonably viewed in our community. Indeed, it would be very seldom, if ever, that the perpetrator of behaviour of this kind with which we are concerned would not be required to serve a substantial period of incarceration. The real question which arises in the present matter can be expressed simply – are any of the individual sentences the total effective sentence or the non-parole period excessive in the circumstances, that is, were those sentences available in the proper exercise of discretion.
[9](2001) 121 A Crim R 497, 507 (Winneke P).
Acknowledging that those handed down in the applicant’s case could be fairly described as stern we consider that the answer to the question must be - no. As the observations of the judge set out earlier in this judgment make clear, there is nothing in the motivations of any of those involved that could be seen to operate in mitigation. Martin went to exact some form of revenge against his brother’s estranged wife and her new partner, while the others agreed to participate in a violent enterprise for drugs or money. With regard to the applicant’s part, it is important to remember that he participated in a well planned and executed home invasion, while disguised and armed with a knife with which he repeatedly stabbed one of the victims in the chest. The wounds that he inflicted were potentially life threatening. Giving full weight to the matters militating in favour of mitigation, the imposition of a substantial term of imprisonment was required. The individual terms, the orders for cumulation, and the total effective term handed down were all available to his Honour in the proper exercise of sentencing discretion. Finally, the non-parole period fixed does not suggest error.
Further Ground
Leave was granted to the applicant’s counsel to argue the further ground that the sentences handed down by his Honour involved an element of double punishment. The argument rested on two limbs. First, it was submitted that the sentence of five years’ imprisonment for the aggravated burglary in count 1 must, by virtue of its length, have incorporated punishment for the events that took place in the house and the other offending then committed for which separate sentences were imposed. Second, the conduct encompassed by counts 3 and 5 was, for practical purposes, identical and could not have properly been the subject of both an assault and an armed robbery count.
There can be no doubt that the judge was aware of the need to avoid double punishment as he said so, and indicated the manner in which he had addressed this risk.
I turn to the question of double punishment. In determining the appropriate sentences to be imposed in respect to each of the accused I have firmly kept in mind that the offences occurred over a short period of time and in the one course of criminal conduct. I have concluded that Count 1, the aggravated burglary on the bungalow, is a serious example of that type of offence. I have moderated the sentences imposed in respect of the offences that occurred inside the bungalow to ensure that I avoided double punishment in respect of each accused.[10]
[10]Sentence 186.
He also made clear that he was careful to distinguish the offences and their elements when dealing with the bases for his orders for cumulation.
I have considered how the sentences to be imposed relate to each other and have determined that there should be some cumulation for the following reasons. (1) The offences are discrete. (2) The offences of aggravated burglary are committed on separate premises. (3) The offences of aggravated burglary, armed robbery and intention of causing serious injury are serious examples of such offending. (4) Some of the offending relates to different victims.
In determining the level of cumulation, I have kept firmly in mind as I set out above, the need to apply the principle of totality, proportionality and to ensure that double punishment does not impact on the sentences to be imposed.[11]
[11]Sentence 190.
The offence of aggravated burglary was committed at the time that the four appellants entered the house, armed and with the intention to attack the occupants. As the sentencing judge noted, there were a number of aggravating features of that inherently serious conduct, and we earlier pointed out, it merited the imposition of a substantial term of imprisonment if nothing else had taken place. However, once inside, the applicant participated in a number of quite separate criminal acts which could not be properly regarded as subsumed by the aggravated burglary count. There was, of course, an overlap in the criminality involved in the various offences arising from the fact and motivation for the unlawful entry of which the judge was well aware as his remarks indicate. The sentences themselves do not bespeak error in this regard.
With respect to the second limb. Count 3 related to the taking of jewellery, a purse and mobile phone from Joanne Martin after the assault, the subject of count 5, had been made upon her. As we understand the position, that assault was not carried out in order to effect the offence in count 3 or in the course of its commission, although it undoubtedly provided a background against which the demand for valuables was made and added to the fear and force of the demand. It was appropriate for the judge to impose separate sentences for those offences. Each was serious but their relationship in time and circumstance had to be taken into account. His honour understood his obligations in this regard and imposed individual sentences that were, in our view, available in the proper exercise of sentencing discretion and then made orders creating a substantial measure of concurrency.
Neither of these complaints has been made out.
The application for leave to appeal by Homersham is refused.
The Application for Leave to Appeal by lees
…
2. The learned sentencing judge erred:[12]
[12]Two further grounds, Ground 1 and 3 were not pursued and need not be addressed.
(a)by finding that there was a real prospect that the applicant would re-offend in a similar manner in the future and;
(b)in the manner in which the learned judge sought to justify the impugned finding of the subject of 2(a).
…
4A. In all the circumstances:
(a) the individual sentence imposed;
(b) the total effective sentence; and in particular,
(c) the non-parole period
are manifestly excessive.
4B. Further and alternatively to Ground 4A, the learned sentencing judge erred by not imposing a shorter non-parole period and availing the applicant of a longer period on parole.
Leave was also sought and granted to the applicant to argue that –
The judge fell into error in that double punishment was imposed on counts 3 and 5.
Ground 2
In his sentencing remarks, the judge said when addressing this applicant –
I have considered and determined that you have some prospect of rehabilitation, however, there is a real prospect that you will re-offend in a similar manner in the future for the following reasons: (1) I am not persuaded on the balance of probabilities that you are, in fact, drug-free. (2) You have no support structure in the community and you have deteriorated to living in crisis accommodation. (3) You were not alcohol or drug affected, according to your counsel, when you participated in the current offending for previously in sentences by the courts have not deterred you from re-offending.[13]
[13]Sentence 194.
Counsel argued that these comments were equivalent to a finding that his client was likely to offend in a similar manner in the future and that there was no adequate basis for any such conclusion. The central difficulty with this submission is that his Honour did not express the view attributed to him, but rather did little more than indicate that he considered that the real risk that he might so offend could not be ignored. His reasons for this assessment can be seen in his further statement that:
In my view, specific deterrence and general deterrence are significant matters for the courts in the determination of an appropriate and just sentence. You, as I have just stated, Mr Lees, were not affected by alcohol or drugs. You decided to participate in what is colloquially known as a ‘run-through’ by a group of armed men. You were motivated by the prospect of obtaining money and/or drugs. The plan was executed ruthlessly and with significant violence. Not being satisfied with the meagre spoils from the victims in the bungalow, you were party to a further aggravated burglary on the house of Mr Gebus's elderly parents.
After being apprehended by police you made considerable efforts in my view, as did other accused, to minimise your role as can be seen in the Record of Interview, and even as your plea hearing was in progress, you still maintained that you personally did not attack Mr Gebus. That you merely - your role was to stand by the door.[14]
[14]Sentence 194.
Given his Honour’s findings of fact concerning this applicant, his assessment of the situation with respect to possible future offending was reasonable. The applicant, it must be remembered, had a long history of drug abuse and had, as earlier mentioned appeared before courts on ten occasions over the period from April 1985, to December 2001 for a range of offences which relevantly included theft, receiving and handling stolen goods, imposition, going equipped to steal, unlawful assault (December 1996), two charges of unlawful assault, two of causing wilful damage and one of breaching a suspended sentence (June 1998). Indeed, it would have been surprising if the judge had not had such reservations in the circumstances.
The further argument advanced under this ground, and ground 4B, that, in any event, his Honour’s findings ought to have led to a shorter non-parole period, or, alternatively, serves to underscore the asserted error just considered, also fails for the same reasons. There would seem to be no reasonable foundation to doubt that the judge directed attention to all relevant factual circumstances and sentencing principles with regard to the non-parole period which can be described as unremarkable in the circumstances and does not itself bespeak error.
Ground 4A
This ground fails for the reasons set out earlier with regard to the complaint of manifest excess by Homersham and taking into account the matters advanced in mitigation on the applicant’s behalf before us and the court below.
Secondly, certainly, the judge regarded the aggravated burglary and the intentional infliction of serious injury upon Gebus as the more serious offence committed at the time. He was correct to do so but that does not mean that the separate armed robbery offences should be regarded as overwhelmed by them so as merely incidental. They were serious examples of a crime requiring the imposition of sentence that reflected both the nature of the offending and the circumstances under which they were committed.
There being no substance to any of the grounds of application by Lees, it is dismissed.
The Application for Leave to Appeal by Martin
The Grounds
1.The individual sentences, the head sentence and the non-parole period are manifestly excessive.
2.The Learned Sentencing Judge erred at law in that he did not give sufficient regard to ‘double punishment’ and the principle of totality.
3. The Learned Sentencing Judge erred at law in that he failed to give any, or sufficient, weight to the Appellant’s remorse.
Ground 1
The argument presented on behalf of the applicant on this ground rested essentially on three propositions: first, the judge incorporated into the sentence on the aggravated burglary count (count 1) behaviours covered by other counts and for which quite substantial sentences were imposed in any event; second, that the individual terms handed down on counts 1 and 4 were at ‘the high end of the range of appropriate sentences’ although it was not asserted that they were manifestly excessive. However, counsel argued those imposed on the two armed robbery counts were outside the range available in the proper exercise of discretion, the offences involved being incidental to and overwhelmed by the actions underlying counts 1 and 4. The orders for cumulation then made, created a total effective period of incarceration which was manifestly excessive, it was said. Third, counsel submitted, the sentence imposed upon his client was manifestly excess when regard was had to the circumstances of the offences and the offender concerned.
We do not accept any of these claims.
With respect to the first of them, as we have earlier indicated when dealing with other applicants, the judge was careful to ensure that he did not fall into the errors attributed to him and specifically, that he did not impose double punishment or breach the principal of totality. He stated when addressing the applicant:
All the general sentencing remarks I have made in respect of Mr Homersham and in general apply to you.
The remarks to which he referred included his expression of intention to apply the principles concerning double punishment and totality. There is nothing in his finding of fact or the dispositions at which he arrived that could reasonably give rise to any concern that, notwithstanding his attention to this aspect, he may inadvertently have fallen into error.
Thirdly, against the background of his Honour’s finding concerning the role played by this applicant, his motivation for becoming involved, and his subsequent endeavours to minimize his part in the enterprise, his Honour accepted that the applicant experienced some remorse but reasonably regarded it as limited. This finding was clearly open in the circumstances.
This application is also refused.
The Application for Leave to Appeal by Pretty –
1.The Learned Sentencing Judge erred in finding that the Applicant’s moral culpability was not reduced on account of his mental illness.
There was evidence, which the judge obviously accepted, that this applicant suffered from advanced paranoid schizophrenia and other mental health issues. Against that background, he referred to the decisions of this Court in R v Tsiaris[15] and R v Verdins & Ors,[16] making clear his intention to apply the principles there set out.
[15][1996] 1 VR 398.
[16][2007] 16 VR 269; [2007] VSCA 102.
He then stated:
I have considered these authorities and have concluded that both specific and general deterrence need to be sensibly moderated in the circumstances that pertain to you. I am satisfied, beyond reasonable doubt, that your mental illness did not obscure the mental element to commit the crimes that you have pleaded guilty to. In my view, there is no evidence before the court that you committed these offences in a state of psychosis or other impaired mental function. As I referred to above, Dr Rigby concludes at p.4 of his report ‘I could not declare that his psychiatric condition directly caused him to commit the offences.’
In my view, the appropriate approach in your case is that as set out by Batt J in the R v. Yaldez, 1998 VSCA 376 ‘General deterrence is not eliminated but still operates sensibly moderated in the case of an offender suffering from a mental disorder, or severe intellectual handicap.’
In your case, I am satisfied beyond reasonable doubt that because of your mental illness and your repeated non-compliance with medication that you are a danger to the community and there is a need to protect the community from you. As Callaway JA observed in R v. Izard 2003 VSCA 480 pp 483-4 ‘Mental illness is not solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion is also a greater danger to the community.’
Your counsel conceded that your continued non-compliance with medication and drug use up to the current time requires the court to consider the protection of the community. (9) Your mental illness will mean that any term of imprisonment to be immediately served by you will be more onerous than other members of the community. (10) The court should make a conscious allowance for the potential improvement in your mental illness from supervised treatment and medication whilst you are in custody and that that should be demonstrated in the non-parole period to be fixed in your case.[17]
[17]Sentence, 196-197.
The argument advanced in this Court is that his Honour appears to have confined his consideration of the applicant’s moral culpability to only the existence of a direct link between his mental illness and the offence and not to have looked at the position more broadly. We do not accept that submission.
His Honour was well aware that he was imposing sentence upon a man with significant mental health problems. Accordingly, he directed his mind to the relevant authorities and principles. He then had regard to the possible contribution that his mental health problems may have made to the commission of the offences. He concluded that, on the basis of the material before him, there was not only nothing to suggest that they had, but that he was satisfied beyond reasonable doubt that the applicant’s illness ‘did not obscure the mental element to commit the crimes’. He then considered the other ways in which mental illness could assume relevance in the determination of an appropriate sentence as the authorities required. He did take them into account. We do not think that error has been demonstrated in his approach or could reasonably be inferred from the sentences imposed.
The Added Ground of Double Punishment
This ground has not been made out for the reasons previously given with respect to the similar complaint by Homersham.
None of the applicant’s complaints possessing force, this application therefore is refused.
NETTLE JA:
I agree with Vincent JA.
VICKERY AJA
I agree with Vincent JA.
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