R v Oliver
[2001] VSCA 218
•28 November 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 37 of 2001
| THE QUEEN |
| v. |
| GRANT RAYMOND OLIVER |
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JUDGES: | CHARLES, CALLAWAY and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 November 2001 | |
DATE OF JUDGMENT: | 28 November 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 218 | |
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CRIMINAL LAW - Sentencing - Armed robbery - Blood-filled syringe - Remorse - Rehabilitation - Deterrence - Sentence not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.M. Horgan, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.G. Perry | Michael Brugman |
CHARLES, J.A.:
The applicant, who is now aged 31, on 26 February of this year pleaded guilty in the County Court at Geelong to one count of armed robbery, the maximum penalty for which was 25 years' imprisonment. The applicant admitted a conviction in March 2000 for driving a motor vehicle with a blood alcohol content exceeding .05% and 10 findings of guilt from two Magistrates' Court appearances in 1998, the first of which involved a threat to kill, two charges of breaching the terms and conditions of an intervention order and intentionally damaging property, the second involving one charge of intentionally damaging property and two charges of assaulting a police officer in the lawful execution of duty. After a plea during which evidence was given by the applicant and four witnesses on his behalf, the judge on 2 March sentenced the applicant to be imprisoned for four years, with a non-parole period of two years and three months. The applicant now seeks leave to appeal on the grounds that the judge placed too much weight on specific and general deterrence, did not give sufficient weight to his co-operation with the police, his remorse and early plea of guilty and to his personal circumstances and prospects of rehabilitation, and that the sentence is manifestly excessive.
The facts giving rise to the offence were as follows. At about 10 p.m. on the evening of Saturday 2 September 1999, the applicant decided to obtain some money in order to buy sufficient heroin for a fatal overdose. He drew some of his own blood into a syringe and went into a service station in Geelong. He waited until he was alone in the shop with only the console operator, and then approached the counter holding a bottle of Coca Cola. After it was scanned he produced the syringe and demanded money. The operator withdrew the cash drawer from the till and placed it on the counter. The applicant took notes totalling $370 and left the premises.
An officer at Geelong police station recognised the applicant from video surveillance photographs taken at the service station that night and rang the applicant's father, who in turn telephoned his son. On 14 September the applicant went to the Geelong police station, where he was interviewed and made full admissions.
The evidence given by the applicant's witnesses during the plea was impressive. His father gave evidence that the family was very close-knit and that he and his wife had given their full support to assisting in their son's drug rehabilitation. He stated his belief that his son had the ability to rectify the mistakes he had made, and a family friend, Raymond Herman, also expressed confidence that the applicant, with the support of his family and friends and professional help, would be able to "come good again". Another friend, Justin McDonald, swore that he was prepared to offer the applicant employment and accommodation. The applicant himself gave evidence that he wanted to get on with his life and make something of himself in the future, and that he would like the opportunity and the chance to pay his debt to society by working out in the community instead of sitting in gaol. On the plea it was submitted on the applicant's behalf that he had good prospects of rehabilitation and the strong support of family and friends.
In this Court Mr Perry, for the applicant, emphasised the applicant's plea to the charge at an early stage, having contacted the police voluntarily within 12 days of the offence. The judge had accepted that the applicant was remorseful, noting his plea, his co-operation with the authorities and his letter of apology to the victim. Indeed, Mr Perry placed substantial reliance on the findings made by the sentencing judge arising out of the plea. His Honour had accepted that the applicant's conduct arose from a combination of emotional disturbance and heroin usage, the emotional disturbance arising out of the tempestuous relationship that had existed with the applicant's former girlfriend, characterised as it seems to have been by frequent periods apart and reconciliations. The offence, his Honour found, had occurred when the applicant "hit rock bottom at a low stage of his life", and it was accepted that the applicant had remained drug free from his arrest until the date of the plea and that his appearance and demeanour had improved accordingly. The judge said that the applicant's evidence before him had created a favourable impression. Furthermore, his Honour appears to have accepted that the purpose of committing the robbery was to obtain sufficient drugs for the applicant to commit suicide while overdosing on heroin. It was submitted that the applicant had demonstrated both a capacity and a desire to rehabilitate himself and that this was not adequately recognised in the sentence imposed, despite the judge's finding that there were favourable pointers for future rehabilitation. It was also submitted that the applicant was entitled to receive significant recognition of his plea and co-operation and the genuine remorse he had demonstrated in the sentence ultimately imposed.
In the course of careful sentencing reasons the judge made express reference to the applicant's plea of guilty, his co-operation with the police including the fact that he had surrendered himself, his remorse and his personal circumstances including his prospects of rehabilitation. Having taken all these matters into account, his Honour then said:
"I have taken time to give your case earnest and repeated consideration. At age 30 years you do not present as a youthful offender. Armed robbery is common and the weapon you chose creates fear in the victim. Indeed the blood-filled syringe is now in frequent use. Heroin addiction may explain an action but cannot excuse. Deterrence is an important element in relation to an offence of this nature, for which the legislation provides a maximum term of imprisonment of 25 years. I am satisfied the imposition of a term of imprisonment immediately to be served is necessary."
Mr Perry this morning said all that could be said in respect of this application. But, notwithstanding the substantial case of remorse and rehabilitation made on behalf of the applicant, in my view no error is to be found in the sentencing reasons. I do not think his Honour can be said to have placed too much weight on specific and general deterrence. His Honour gave very careful and detailed consideration to the substantial matters in mitigation that were argued on behalf of the applicant and to his personal circumstances, the evidence called for him, and his prospects of rehabilitation. The offence was a very serious one, and it has been said in this Court before that [1]blood-filled syringes are undoubtedly a fearful weapon. As might be
expected, the victim was shocked and scared by the applicant's conduct. The steps taken by the applicant for his own rehabilitation appear so far to be most encouraging and, should, it is to be hoped, lead to his complete rehabilitation. But it is not the task of this Court to interfere with a sentence imposed elsewhere because we might ourselves have imposed a different or less severe sentence. In the absence of the applicant's remorse and good prospects of rehabilitation, a longer head sentence would have been within range, and the matters put in mitigation were no doubt responsible for the comparatively low non-parole period fixed. Taking all these matters into account, it cannot, I think, be said that the sentence was beyond range or manifestly excessive.
[1]R v. Roy (2001) 119 A.Crim.R. 147 at [9].
I would dismiss the application.
CALLAWAY, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CHARLES, J.A.:
The order of the Court is -
Application dismissed.
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