R v Nicol
[2004] VSCA 110
•3 June 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 159 of 2003
| THE QUEEN |
| v. |
| GARY ROBERT NICOL |
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JUDGES: | BATT, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 June 2004 | |
DATE OF JUDGMENT: | 3 June 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 110 | |
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Criminal law - Sentencing - Armed robbery - Member of public threatened with a knife - Offenders addicted to heroin - Term of five years' imprisonment with a minimum term of three years and nine months not manifestly excessive - Parity - Co-offender's lesser sentence justified by differences in personal circumstances.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr R. Backwell | Victoria Legal Aid |
BATT, J.A.:I will invite Buchanan, J.A. to give the first judgment in this matter.
BUCHANAN, J.A.:
In the evening of 8 December 2002 the applicant, who is aged 37 years, and his companion, Danielle Bonello, a woman aged 22 years, both heroin addicts, went out to the streets of St Kilda. They later said that they intended to obtain money by begging, but they soon resorted to force. Bonello approached a woman in Fitzroy Street, who said that Bonello lunged at her throat, demanding money. The woman hurriedly retreated. Bonello next approached a woman who was about to get into a parked car in Lakeside Drive. The applicant's companion grabbed the woman around the throat and threatened her with a pocket knife. The applicant and Bonello demanded the woman's wallet, her mobile telephone and her car keys. The frightened woman complied. She was told to walk away, and the applicant and Bonello drove off in the car. Shortly thereafter the offenders were arrested by the police.
The offenders were arraigned in the County Court on a presentment containing one count of armed robbery. They pleaded guilty to the charge. The applicant was sentenced to be imprisoned for a term of five years with a minimum term of three years and nine months before he was to be eligible for parole. Bonello was sentenced to a term of three-and-a-half years' imprisonment with a non-parole period of two-and-a-half years.
The applicant was refused leave to appeal by a single judge of this Court and now seeks leave to appeal from a court constituted by three judges. The grounds of the application which have been pursued in this Court are:
"1.The sentence imposed was manifestly excessive in all the circumstances.
3.The learned sentencing judge placed insufficient weight on matters relied on in mitigation of sentence.
5.The sentence imposed on the applicant is (in the circumstances) manifestly and unjustifiably disparate from that imposed on the co-offender Bonello."
The applicant is the oldest of three children born to a working class family. His family background was extremely chaotic and abusive. He was largely left to his own devices during his childhood. His father worked long hours and the applicant told a psychologist who reported to the court that his mother, who suffered from severe psychological problems and abused prescription drugs, physically attacked him, stabbing him with a carving knife on one occasion and nearly drowning him on another occasion. At the age of eight years he was placed in an institution and was largely institutionalised during the remainder of his childhood and adolescence. He began drinking at the age of seven or eight years and at the age of ten years moved on to cannabis, amphetamines and prescription medications. He commenced using heroin at the age of eleven years and, apart from periods of abstinence while he was imprisoned, the applicant has regularly used heroin. He has participated in several attempts at rehabilitation, but without success. The history I have recounted is taken from the psychologist's report. The psychologist was of the view that the applicant was "an unreliable historian".
The applicant has an extensive criminal record. He has 56 prior convictions from 21 court appearances between 1984 and 2002, including three convictions for robbery with violence, one conviction for robbery in company, two convictions for armed robbery and convictions for drug offences, fraud, theft, receiving, setting fire to explosives to cause injury and damaging property, though, as his counsel pointed out, the last robbery convictions related to events in 1991.
The psychologist reported that a comprehensive examination of the applicant's mental state revealed no significant abnormalities. His thought processes and moods were normal. He was lucid and oriented. The psychologist estimated that he was of somewhat above-average intelligence. The psychologist was of the opinion, however, that the abuse to which the applicant was subjected as a child undermined the development of his personality and led to profound behavioural disturbance from a very young age. The psychologist described him as suffering from "an anti-social personality disorder".
The offence to which the applicant pleaded guilty was indeed serious. The maximum penalty is 25 years' imprisonment. A defenceless woman was terrorised and robbed at knife-point. The sentencing judge, in my view, was justified in saying that "This was a particularly nasty crime and your record does not stand you in good stead." The applicant was entitled to a discount for his plea of guilty and he is entitled to sympathy on account of his upbringing and credit for his attempts to battle his addiction. The crime was committed as a result of the applicant's addiction to heroin. The age at which the applicant first began to use drugs is relevant to his moral culpability, as is the abuse which he suffered as a child. Nevertheless, the circumstances of the offence, which the applicant's history of prior convictions demonstrates was by no means aberrant behaviour, precludes, in my view, the conclusion that the sentence was beyond the range that was available to the sentencing judge.
Counsel for the applicant said that the third ground of the application is to be viewed as an aspect of the complaint that the sentence was manifestly excessive. It is disposed of by my conclusions with respect to the first ground. There were mitigating factors, but when they are weighed together with all other relevant matters, in my opinion the length of the sentence does not warrant the conclusion that they were not accorded proper weight.
As to parity, there were circumstances which entitled the sentencing judge to view the applicant's culpability as greater than that of Bonello. While Bonello brandished the knife, she and the applicant appeared to be equal partners in the planning and execution of the crime. The applicant, however, was a great deal older than Bonello, and may be supposed to have had the authority that age brings. Bonello's previous convictions were many and varied, but the applicant's prior convictions were more extensive and serious. Bonello had not previously been convicted of armed robbery. The sentencing judge said of Bonello that "rehabilitation has some prospects of success". He could not say that of the applicant. Bonello made frank admissions to the police, unlike the applicant. When the positions of the offenders are compared, I do not consider that the disparity in their sentences is "such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done", to use the words of Gibbs, C.J. in Lowe v. R. (1984) 154 C.L.R. 505 at 610.
For the foregoing reasons, I would refuse the application for leave to appeal against sentence.
BATT, J.A.:
I agree.
EAMES, J.A.:
I also agree.
BATT, J.A.:
The order of the Court accordingly is that the application for leave to appeal against sentence is dismissed.
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