R v McDonald
[2003] VSCA 137
•12 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 53 of 2002
| THE QUEEN |
| v. |
| DEAN ANTHONY McDONALD |
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JUDGES: | CHARLES, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 August 2003 | |
DATE OF JUDGMENT: | 12 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 137 | |
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CRIMINAL LAW – Sentencing – Multiple offences of armed robbery, attempted armed robbery and theft – Sentence of 16 years with non-parole period of 12 years imposed – Pleas of guilty, assistance to police, remorse and rehabilitation – Whether sentence manifestly excessive – Proportionality – Totality – Sentence of 14 years with non-parole period of 9½ years substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person |
CHARLES, J.A.:
The applicant pleaded guilty in the County Court at Melbourne on 28 November 2001 to a presentment alleging 24 counts of armed robbery, four counts of attempted armed robbery, one count of conspiring to commit an armed robbery, two counts of false imprisonment and 21 counts of theft. After lengthy pleas were conducted on behalf of the applicant and a co-offender, Craig Shane, the judge sentenced the applicant on 1 March 2002 to sentences which led to a total effective sentence of 16 years, and his Honour directed the applicant to serve a non-parole period of 12 years. The 21 counts of theft all related to motor vehicles, for which the judge sentenced the applicant to individual terms of imprisonment ranging between six and nine months’ imprisonment. The base sentence of three years was imposed in respect of the conspiracy to commit armed robbery. On the various counts of armed robbery, the judge sentenced the applicant to periods of imprisonment ranging between two years and two years and nine months. On the four counts of attempted armed robbery, he was sentenced to periods ranging from 15 months to two years’ imprisonment. On each of the two counts of false imprisonment the judge imposed a sentence of 12 months.
The applicant admitted some prior convictions, which the judge regarded as of limited significance. On 31 May 1999 he had been convicted at the Magistrates’ Court at Dandenong on three charges of burglary, 15 charges of theft and two charges of handling stolen goods. He was released on a community based order for a period of 24 months, but on 16 June 2000 was brought up for breach of this order and was sentenced to a term of imprisonment of seven days. Then on 3 August 2001 he was convicted at the Magistrates’ Court at Ringwood on two counts of obtaining property by deception and three counts of obtaining a financial advantage by deception and sentenced to two months’ imprisonment wholly suspended for 12 months.
The facts giving rise to these offences were set out in detail in the sentencing judge’s very thorough and comprehensive reasons. Notwithstanding their extraordinary number, they may here be comparatively shortly stated, since they followed a somewhat similar pattern. They occurred over a period of some six months between August 2000 and February 2001. The motor vehicles which were stolen were frequently used in the later armed robberies. In most of these armed robberies, mainly of “soft” targets such as service stations, milk bars, video stores and taxis, a disguise was used, and the weapon was usually a knife. Many of the armed robberies took place in company with Craig Shane, and some five of them with a second co-offender, Stephen Gottliebsen. On two occasions a victim was held hostage. The conspiracy to which the applicant pleaded guilty related to a plan to rob an Armaguard van, the plan failing when the van did not arrive at the expected time. The robberies were all to some degree planned and invariably would have been extremely frightening to their victims. A number of victim impact statements were before the sentencing judge demonstrating that a substantial number of the victims have suffered lasting effects. The robberies were usually committed in the middle of the night or early in the morning. The sums stolen were comparatively small. I shall give three examples of these armed robberies.
Counts 20 and 21 related to the following set of circumstances. At 10.10 p.m. on 3 December 2000 the applicant and Shane drove in Shane’s vehicle to the Dromana Drive-in Theatre. They parked off the main road. Shane stayed in the vehicle. The applicant waited in some bushes to check that no more cars were coming in. He then walked up to the ticket box, having a stocking over his face and carrying a knife. The manager of the Drive-in, John Walker, was in the office watching the movie. The applicant entered, took hold of Mr Walker and stood him out of his chair. He asked for money, and Mr Walker handed him $1500. The applicant then told Mr Walker that they would walk together up towards the house. He grabbed the manager’s jumper. They walked up a laneway towards the house and the applicant struck the manager in the stomach with his hand. The manager then ran off and went back to the ticket office where he rang the police. The taking of the manager by the applicant from the ticket box to the house was the subject of a count of false imprisonment. The applicant then went back to Shane at the car and they drove off, dividing $1500 between them equally. The manager’s victim impact statement shows that he suffered considerable emotional trauma for which he had been seeing a psychiatrist. He is now unable to work by himself.
Count 48 related to the offence of conspiracy to commit an armed robbery. Shane and Stephen Gottliebsen were also party to this conspiracy. The three of them conspired to rob an Armaguard van under threat of a sawn-off shotgun when the van was expected to go to the Hampton Park Tavern on the morning of 29 January 2001. The robbery did not occur, as I have said, because the van did not arrive at the expected time. The shotgun came from Gottliebsen, the barrel and stock having been cut down. The offence was very serious being, as the judge said, “a serious well-planned criminal conspiracy the object of which was to rob at gunpoint an Armaguard van, a vehicle that could be expected to contain a very large amount of cash”. The applicant said he believed the shotgun was unloaded, and the judge was not prepared to find the contrary.
Count 49 referred to a further armed robbery carried out by the applicant and Gottliebsen at The Top Video Store, in Dandenong North. The applicant entered the store with a stocking over his head, carrying the sawn-off shotgun. He pointed the gun at the person behind the counter and told him to open the till. Cash totalling seven hundred dollars was taken from the till and divided equally with Gottliebsen.
When the applicant was arrested by police, he co-operated fully with their investigations. He said he committed the armed robberies for money, and chose to commit them at night because there were less people around. He said the proceeds went on general living expenses, such as rent, petrol and “pokies”. He said he gambled some of the money and drank a lot of alcohol.
The circumstances of the applicant, as related by the sentencing judge, included that he was aged 25 when most of the offending occurred and was then 26. The judge accepted that he had a close relationship with his parents who remained supportive of him. The applicant agreed that he had let his parents down by his offending. After beginning a small lawn-mowing business after school and at weekends, he completed Years 11 and 12 and then at first in 1995 attended an engineering course at the Caulfield campus of Monash University. However, he has not completed any university course. The applicant worked as a delivery driver and courier and in other fields. He then began working for a blind company and set up his own small business, making up and installing blinds. This appeared at first to be successful but the applicant had difficulty keeping up and was unable to run the business properly. Financial difficulties set in and he began drinking and gambling. He began using cannabis and also on occasions used amphetamines. His financial difficulties led to an incident on 5 December 2000 when three males entered his premises and he was attacked with baseball bats and hospitalised for some days.
At the plea a number of testimonials were tendered on behalf of the applicant. He had carried out an amount of voluntary work and his sporting activities included coaching baseball and volley ball with the Salvation Army. Whilst in custody he had taken the opportunity to undertake a variety of courses and the sentencing judge commended him for his efforts in that regard.
A report from a forensic psychologist, Mr Ian Joblin, was before the Court. Mr Joblin’s report included the following paragraph –
“The symptoms therefore of the above including his inability to respond appropriately to difficulties, are the diagnostic criteria of a personality disorder. This is particularly seen in 1999 and 2000 when his business was faltering because he simply could not attend to the work. McDonald acknowledges, when questioned that he could have and should have sought assistance. It is apparent the business was potentially viable and potentially successful. However, it destructed because of this man’s incapacity to deal with what he saw as a work overload. It is also the case that he has by personality, an inability to cope with such stressors and under those conditions, unfortunately it was almost predictable that he sought to answer such problems with negative factors rather than positive factors. I do not consider the alcohol abuse, drug abuse or gambling to be a specific issue that needs addressing as what needs addressing is this man’s quite obvious personality disorder.
Because of this man’s presentation of reasonable intelligence and a degree of manipulative personality, he would be a very difficult man to engage in any therapeutic endeavour. McDonald needs to be challenged and any treating Mental Health Personnel need to be very aware of his capacity for manipulation. It is the case however, that he needs such treatment. He has quite obvious potential, he has constantly over his life wanted to come up to the expectation he believes his parents had for him but acknowledges he has always felt he has always fallen short of this.
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As indicated, in my opinion, this man does have considerable potential. It is simply the case that that has not been available to him because of the dysfunctional aspects of his personality disorder which have to do with his inability to cope with stressors and the negative response he has to such stressors. This is what needs to be addressed. It is not simply a matter of addressing alcohol, drugs or gambling, it is a matter of addressing the dysfunctional aspects of his personality disorder. This needs to be done by experienced and appropriately qualified mental health personnel and when that is complete the potential this man has would be available to him and the community. This will not occur in custody.”
After quoting at some length from Mr Joblin’s report, the sentencing judge mentioned the applicant’s early plea of guilty as an indication of remorse, and said that there were other indications of genuine remorse on his part. His Honour took the early plea as an acceptance of responsibility by him for the offences he had committed. Also noted was the fact that for some of the offences (I believe seven) to which he pleaded guilty, there was no other evidence of those offences apart from his admissions and plea. The judge accepted that his plea indicated a willingness to facilitate the course of justice and that thereby a lengthy trial had been avoided. The judge said that the applicant’s plea of guilty and its circumstances including his remorse “are given substantial weight in mitigation by the Court and entitle [him] to a high sentencing discount”.
The judge then noted the co-operation, assistance and admissions to the police made by the applicant. His Honour said that this co-operation was given when the applicant was not aware of what Craig Shane had told the police, and said that the applicant had also volunteered information in relation to the involvement of Gottliebsen. He had also participated in a field interview, where the offences were re-enacted and video-taped. He had volunteered information that he had a shotgun, which information had not been known to the police at the time and assisted in recovery of the weapon. He told the police and the judge apparently accepted that he got rid of the shotgun “because he did not want to have any temptation with it”. His Honour continued that –
“With respect to the admissions, that he has provided to the police as to his involvement, they are substantial. He provided substantial assistance against himself and this is a matter that the Court gives considerable weight to in mitigation and entitles him to a considerable sentencing discount.
As I have indicated, he also provided some information as to the involvement of Stephen Gottliebsen, which assisted the police, and that is a matter that the Court gives weight to in mitigation in his favour and entitles him to an additional sentencing discount.”
The judge in turning to impose sentence said the following –
“the Court takes into account his personal circumstances, background character and the mitigating factors. The Court takes into account his rehabilitation. He is a young man and the Court accepts Mr Joblin’s assessment that he has potential but it will not be easy for that potential to be achieved, but it needs to be facilitated. His rehabilitation can best be facilitated through the parole system. He clearly has support from his family which is important.”
The applicant now seeks leave to appeal on some nine grounds, having been refused leave on 20 September 2002 in an application under s.582 of the Crimes Act. The first of these grounds is that the sentence was manifestly excessive. The remainder include complaints that the judge failed to give sufficient weight to the principles of totality and proportionality and failed to give sufficient weight to a variety of matters such as the applicant’s plea of guilty, admissions, co-operation with police and rehabilitation. In effect, these are really all particulars of the first ground and I shall treat them accordingly.
In this Court, the applicant represented himself. He referred to the various matters that had been accepted by the sentencing judge in his reasons, and submitted that not only had he pleaded guilty at an early stage and co-operated with the police and made admissions and assisted in re-enactments, but had also shown considerable remorse. He submitted that his admissions had resulted in convictions on at least seven counts in circumstances where the prosecution would not have been able to establish convictions in the absence of his own evidence. He submitted that the sentence imposed could not have involved any discount of substance, and provided no incentive for offenders to make admissions in the future or indeed to plead guilty. He said that he himself had been prepared to give evidence against Gottliebsen, a matter acknowledged by the judge. In his rehabilitation he was now undergoing many courses while in custody, and not wasting his time in gaol, but indeed doing a business degree with Monash University. He was having fortnightly sessions with a psychiatrist and was now on anti-depression medication and a mood stabiliser. He submitted that he had seen where he had made his errors and where he wanted to go in the future. He argued, with considerable persuasiveness, that the community has a real interest in the rehabilitation of young offenders and that the sentence imposed showed that the judge had given insufficient weight to the principles of proportionality and totality and that the judge had failed in doing so to consider proportionately either his criminality or his potential for rehabilitation.
In support of his submissions the applicant relied on the decision of this Court in R. v. Nguyen and Okobagerish[1]. In that case Okobagerish either alone or with co-offenders committed some 18 armed robberies and four attempted armed robberies in suburban Melbourne on convenience stores, night garages and newsagents. The weapon used in each case was a knife, and four motor vehicles had been stolen by Okobagerish for use in the armed robberies. When interviewed, Okobagerish admitted his participation in all the offences and said that he committed the armed robberies to support a heroin habit. He was then almost 18½ years old. Mr Joblin gave evidence during this plea also. His report was described as “depressing reading and offers only small hope for future rehabilitation”. Okobagerish was said to have demonstrated an anti-social attitude and serious drug use. He had told Mr Joblin that if his victims were emotionally upset or distressed by his conduct it was not his problem. During the plea Okobagerish’s youth had been relied on in terms of maturity and prospects for rehabilitation. Okobagerish was sentenced to a total effective sentence of 8 years and 2 months, and a non-parole period of six years was fixed. The appeal against sentence was dismissed[2].
[1][2002] VSCA 130.
[2]By Batt, J.A. and O’Bryan, A.J.A., Eames, J.A. dissenting on the question of the length of the non-parole period.
The applicant also placed reliance on the sentence imposed on 30 August 2002 in the County Court on John Paul Lopez. Lopez had pleaded guilty to 26 counts of armed robbery, two counts of theft, one count of intentionally causing injury and one count of recklessly causing injury. These armed robberies were committed in a three month period between January and April 2001 and all involved convenience stores or stores attached to service stations. On each occasion Lopez had been armed with a large knife. On one of these occasions, Lopez stabbed the person behind the counter of a store in the left arm and then in the stomach. The injury to the stomach was described as life-threatening and a deep penetrating wound. The judge referred to this as a very severe case. Lopez was 22 at the time of the commission of these offences and had little in the way of prior convictions. In his case also the plea in mitigation focussed largely on his prospects of rehabilitation in the light of the continued support he had from his family. The very experienced judge imposed a total effective sentence of 12 years’ imprisonment and fixed a minimum term of 8 years and 6 months. An application for leave to appeal against conviction under s.582 of the Crimes Act was dismissed.
In this Court Mr Elston for the Crown submitted that each sentence had been the subject of careful consideration by the sentencing judge. His Honour had plainly given consideration both to totality and proportionality and the need for general and specific deterrence. He submitted that the number of sentences involved would have justified a sentence more than double what was imposed and argued that instead a very balanced and consistent approach had been taken throughout consideration of the offences. The judge was plainly obliged to impose condign punishment. His Honour had been well-attuned to rehabilitation and had been mindful of the need to avoid imposing a crushing sentence. In his submission it was the magnitude of the offending which brought about the sentence. He conceded, however, that in the absence of the sentencing discounts to which the applicant was found to be entitled, the total effective sentence must have exceeded 20 years.
The offences committed out by the applicant with Shane and Gottliebsen followed a pattern and there was planning and the selection of targets involved. The offences were carried out at night when no customer was present. Plainly the applicant wished to put his victims in fear. The victims were vulnerable and, even though the judge accepted that the applicant did not intend when challenged to use his knife, the people confronted by him did not know that he did not intend to use it against them. As the judge said, the large number of victims were subjected to varying degrees of a frightening and traumatic experience. The targets chosen were vulnerable to these types of attack. Furthermore, the attempted armed robbery was plainly a very serious offence and of considerable gravity. As the judge said, in essence, the applicant and Shane over a six month period, but particularly between October 2000 and February 2001, had gone on a rampage of committing serious criminal offences.
Notwithstanding all these matters, and the undoubted need for general and specific deterrence to weigh heavily in sentencing consideration, in my view the applicant has made good his argument that the sentence imposed here was both crushing and manifestly excessive. The judge was, with respect, correct to say that the applicant’s plea of guilty, together with the circumstances relating to it, including his remorse, should be given substantial weight and entitled him to a high sentencing discount; Siganto v. The Queen[3]; R. v. Duncan[4]. The judge had noted the applicant’s admissions and the substantial evidence he had provided against himself which was correctly said to have “considerable weight in mitigation and entitles him to a considerable sentencing discount”. Furthermore his assistance to the police in relation to Gottliebsen entitled him to mitigation in sentence and an additional sentencing discount, as the judge also said; R. v. Rostom[5]. Considerable leniency in sentencing is also due to an offender who co-operates to the point of disclosing offences which otherwise might not have been revealed; R. v. Knell[6]; Ryan v. The Queen[7].
[3](1998) 194 C.L.R. 656 at [22].
[4][1998] 3 V.R. 208 at 214-215.
[5][1996] 2 V.R. 97.
[6][2001] VSCA 82 per Winneke, P. at [6].
[7](2001) 206 C.L.R. 267, especially at 272, 296, 322.
The applicant was, at 26, still young, his prior convictions were limited, and he had had only seven days prior incarceration. His assistance to the police and his early plea of guilty had been accompanied by a demonstration of genuine remorse and avoided the need for a lengthy trial. His willingness to assist the prosecution had extended to incriminating both his co-offenders. Notwithstanding his capacity for manipulation, which I bear in mind, as did the sentencing judge, his prospects for rehabilitation were significant and his Honour said that he should take them into account. In my view, a head sentence of 16 years in all these circumstances gives no adequate indication that the significant discounts in sentencing to which the applicant was entitled, together with the other mitigatory elements, had, with great respect, been given adequate weight in sentencing.
I would accordingly uphold the application for leave to appeal on ground 1. I would not vary any of the sentences imposed by the judge in respect of the individual counts. I would however, vary the orders for cumulation of sentence made in relation to counts 7, 8, 12, 17, 19, 24, 26, 27, 31, 32, and 49, in each of which cases an order for cumulation of 12 months was made. As to counts 7 and 31, I would instead order that nine months of the sentence be cumulated; and as to each of the other nine counts I would order that 10 months of the sentence be cumulated, upon the base sentence of three years imposed on count 48. The total effective sentence would then become 14 years. I would fix a non-parole period of 9½ years.
CHERNOV, J.A.:
I have had the benefit of reading the draft reasons for judgment of Charles, J.A. in this matter and I agree that, for the reasons given by his Honour, the application should be disposed of as he proposes.
The question for determination is whether the sentence imposed is obviously disproportionate to the gravity of the offences and the applicant’s criminal conduct, having regard to matters personal to him and other mitigating circumstances as well as the applicable sentencing principles. That the offences were very serious is obvious – the maximum penalty prescribed by Parliament for armed robbery is 25 years’ imprisonment. Similarly, the offending by the applicant was very serious. As Charles, J.A. has made plain in his reasons, the magnitude of it was considerable and, in nearly all cases, involved planning and the use of weapons. The offending also engendered in the victims fear for their safety. Unlike the sentencing judge, I consider that the applicant’s criminal history is of some significance. It shows, amongst other things, a complete disregard by the applicant of the leniency which was extended to him by the lower courts and the opportunities that were given to him to abstain from further criminal conduct. It also demonstrates a worrying escalation of criminal conduct on his part to the point where he became involved in the plan to rob the Armaguard van at gun point. In the circumstances, it is plain that the applicant’s offending conduct called for the imposition of condign punishment.
It was, however, necessary to factor fully into the sentencing process the very many mitigating matters that operated in relation to the applicant which are clearly set out in the judgment of Charles, J.A. and which were, as his Honour said, recognised by the learned sentencing judge. Prominent amongst them is the applicant’s genuine remorse for his offending conduct, as is evidenced by the steps that he took after being apprehended, such as accepting responsibility for his offending conduct, pleading guilty to all the offences including those in respect of which there was no evidence other than his own admissions, co-operating fully with the police in their investigations and being prepared to give evidence against one of
the co-offenders. Furthermore, it is relevant that the applicant is a relatively young person who has not been sent to gaol for more than seven days and thus has not really come under the influence of experienced criminals. Similarly, notwithstanding his prior convictions, it could not be said that he had developed settled criminal habits. Importantly, and taking into account the applicant’s capacity for manipulation that was highlighted by Mr. Joblin, the material that was before the learned sentencing judge showed that he had significant prospects of rehabilitation. In that context, it is also relevant to note that his personal problems, that were also identified by Mr. Joblin, seem to be being addressed through his regular sessions with a psychiatrist.
As I have said, the learned sentencing judge recognised those and other mitigating factors applicable to the applicant and rightly said that they should be given substantial weight in the form of a high sentencing discount. Like Charles, J.A., however, I consider that the head sentence imposed plainly does not reflect such a discount. Accordingly, the applicant’s application for leave to appeal on ground 1 should be upheld and he should be re-sentenced as proposed by Charles, J.A.
EAMES, J.A.:
I agree with Charles, J.A.
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