R v Parker
[2009] VSCA 19
•27 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 719 of 2007
| THE QUEEN |
| v |
| JASON PARKER |
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JUDGES: | NEAVE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2009 | |
DATE OF JUDGMENT: | 27 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 19 | |
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Criminal law – Sentencing – Consideration by sentencing judge of ‘speculative’ matters when sentencing appellant – Whether appellant entitled to lesser sentence because use of methamphetamine caused him to behave out of character – Sentence well within range – Appeal dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr P J Doyle | Revill & Papa Lawyers |
NEAVE JA
WEINBERG JA:
The appellant pleaded guilty to one count of armed robbery in the County Court, at Melbourne. On 26 July 2007, he was sentenced to a term of four years’ imprisonment. The sentencing judge fixed a non-parole period of two years. On 30 May 2008, he was granted leave to appeal pursuant to s 582 of the Crimes Act 1958.
The facts may be briefly stated. At about 1 pm on 12 July 2006, the appellant entered the Aldi supermarket at Westwood Drive, Burnside, wearing a pair of sunglasses. He approached Roxana Pereyra, a cashier, and asked her to show him where the chewing gum was located. She did so and then returned to serving other customers.
About 15 minutes later, the appellant returned to Ms Pereyra’s cash register and presented her with a packet of chewing gum, apparently for purchase. Ms Pereyra, who was seated behind a counter, opened the till. The appellant then leaned towards her and said: ‘While you have the till open, back off honey. It’s full of AIDS, it’s full of AIDS.’
Ms Pereyra looked up to see the appellant holding a syringe. She stepped back, pressing the emergency alarm button while doing so. The appellant snatched $1006 in cash from the till. He then ran from the store towards Ballarat Road. The entire incident was caught on surveillance footage which was provided to police.
On 17 August 2006, the appellant was arrested and questioned by police. He told them that he could recall bits and pieces of the events of 12 July. He said that he and others had been on ‘speed’ all night, and were ‘coming down’. He decided to wait at the shops whilst the others went to obtain more speed.
Thinking that they had left him, he went a nearby shopping centre where he filled a syringe with blood in the shopping centre toilets. He then walked into Aldi, asked for some chewing gum and then ‘held up the check-out lady’. He subsequently discarded a somewhat distinctive jumper that he had worn during the commission of the offence.
The appellant told the police that he had spent the money that he had obtained from the robbery on speed. When asked about his thought processes at the time, he indicated that he had been greatly affected by drugs, was not thinking clearly, and had behaved in a wholly uncharacteristic way. In addition to the speed consumed the previous night, on the morning of the robbery he had used methamphetamine, commonly known as ‘ice’. He claimed that this was the first time that he had ever used that particular drug.
The victim declined to make a victim impact statement. However, it was clear from the evidence that she was terrified by what had occurred. It appeared that Ms Pereyra had only begun working at the particular store on that day.
Aldi was compensated for the stolen money by its insurer, though that in no way mitigates the gravity of the offence. On the other hand, the appellant entered a plea of guilty at the first available opportunity, and that was a matter to be taken into account in his favour.
The sentencing judge noted that the maximum penalty for the offence of armed robbery was 25 years. One of the surveillance photographs showed the appellant armed with the syringe in close proximity to the victim. Her Honour regarded this as an aggravating circumstance.
The appellant was wearing sunglasses at the time of the offence. Her Honour regarded this as a form of disguise, and therefore as suggesting some measure of awareness on his part of what he was doing. In addition, his actions in ridding himself of his jumper suggested some degree of appreciation, and cunning.
The appellant was at the time of sentencing 35 years of age. He had two children, a son aged 11 and a daughter aged six months. He lived with his partner, who was the mother of the baby girl. He had met her about 18 months earlier. She was not then long out of prison, having had an extensive history of heroin use, and a criminal record consistent with that history. The appellant too had been a drug user for a long time, although his use had been directed primarily towards amphetamines.
The appellant’s daughter had been born to his partner whilst she was once again in prison. She was released thereafter on parole, and put on a methadone program. However, her prognosis was somewhat fragile having regard to her history of drug abuse.
The appellant had in the past worked as a truck driver although he was unemployed at the time of the commission of this offence. Her Honour regarded the material before her as indicating some prospects of rehabilitation. She accepted that his offending was drug related. She also accepted that he had expressed remorse for his actions, and that this conduct was out of character so far as he was concerned. Relevantly, he had no prior convictions.
On the other hand, as indicated, her Honour found that there was a degree of planning in the commission of this offence. The appellant filled the syringe before entering the supermarket. He then lurked around for about 15 minutes before approaching the cash register. To balance these matters, however, the planning was fairly rudimentary, the disguise unsophisticated, and the offence committed while he was coming down from the effects of speed and ice.
The sentencing judge accepted that the imposition of a term of imprisonment upon the appellant would cause considerable hardship to his family. Nonetheless, in her Honour’s view, nothing less than a term of immediate imprisonment would be appropriate.
The sentencing judge observed that the crime of armed robbery was a prevalent offence. She continued:
An armed robbery of the sort that you committed, namely on a soft target, a cashier in a supermarket, and by use of what I consider to be a dreadful weapon, a blood-filled syringe, which you held out as being filled with infected blood, is particularly abhorrent.
Her Honour went on to explain what she meant by a ‘soft target’. Describing this as a euphemism, she said that it referred to someone like the victim who was vulnerable, with little protection to avail her. She observed that there was a considerable risk that anyone threatened by a blood-filled syringe held close to their body would suffer long-term harm, particularly when the person committing the offence was in an obviously drug-induced, and therefore uncontrollable, state.
Her Honour went on to speak of cashiers at supermarkets as being low paid, and having limited employment prospects. She said that this meant that they might have little choice but to remain in that form of employment. Thus, it was not just this victim who had been attacked, but all those in similarly vulnerable positions. This made the need for general deterrence all the greater.
The sentencing judge then canvassed the potential for extra security measures to be introduced into supermarkets. She opined that this would lead to additional distrust and fear. There was a risk that barriers might have to be erected to protect employees. This would inevitably lead to an increase in the cost of goods and services.
Her Honour went on to say that nobody would wish to have to pass through a scanner, or be patted down, before entering a supermarket. However, conduct of the kind that the appellant had engaged in, if unchecked, might lead to that scenario, and an overall erosion of individual rights and freedoms.
Having made these points, her Honour explained why she regarded a wholly, or partly, suspended sentence as inappropriate. For one thing, the offence called for a term of more than three years’ imprisonment.
However, to give effect to the appellant’s prospects of rehabilitation, the sentencing judge foreshadowed a greater than usual gap between the head sentence and non-parole period. She then sentenced the appellant to four years’ imprisonment with a non-parole period of two years.
Grounds of appeal
The appellant relied on three grounds of appeal, which were in the following terms:
1.The learned sentencing judge erred in taking irrelevant matters into consideration and engaging in speculative reasoning;
2. The learned sentencing judge erred in her consideration of the relevance of the appellant’s drug-affected state at the time of the offence; and
3.The head sentence and non-parole period are manifestly excessive.
Ground one
In relation to ground one, the appellant contended that her Honour had erred in taking into consideration irrelevant matters when referring to the need for specific and general deterrence. These ‘irrelevant’ matters included:
· that supermarket cashiers might have few other employment opportunities available to them;
· that people who work in supermarkets might be deterred from doing so out of fear for their safety;
· the potential loss to the public of the ability to communicate with cashiers without being separated from them by some form of security barrier;
· the likelihood that conduct like the appellant’s would result in weapon scanners or pat-down searches being introduced as security measures in supermarkets;
· that the installation of greater security measures in places like supermarkets creates a sense of fear and distrust in the community; and
· the inevitable increase in grocery prices which would result from additional security measures being taken in supermarkets.
By having regard to these matters, the appellant submitted that her Honour had been guided by ‘extraneous and irrelevant matters’, with the consequence that the sentencing discretion had miscarried, and should now be reopened.[1]
[1]House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
Her Honour’s reasoning, so the appellant argued, as to the likely or potential impact of the appellant’s offending, was based on speculation as there was no evidence before the judge to provide her with any foundation for the considerations discussed above. The matters were not so notorious that her Honour could take judicial notice of them. Accordingly, her Honour’s emphasis on the need for general and specific deterrence in sentencing the appellant had not been soundly based.
The appellant further submitted that to the extent that her Honour had considered any of the matters set out above to be aggravating features of the appellant’s conduct, she needed to be satisfied of them beyond reasonable doubt.[2]
[2]R v Storey [1998] 1 VR 359.
The appellant drew attention to the Sentencing Act 1991, which requires a court to have regard to:
· the impact of the offence on any victim of the offence (s 5(2)(daa)); and
· any injury, loss or damage resulting directly from the offence (s 5(2)(db).[3]
[3]Emphasis added.
However, the appellant submitted that the considerations outlined by her Honour went well beyond what she was permitted to do under the provisions of that Act. Giving effect to general and specific deterrence in this way, the appellant contended, was impermissible and had the effect of visiting upon the appellant the ‘potential cumulative impact of all offending of a similar kind’.
In reply, the Crown accepted that her Honour appeared to have had regard to some matters that were speculative and of little, if any, relevance to the sentencing task at hand. In those circumstances, the Crown was prepared to concede that the learned sentencing judge had fallen into error in the exercise of her sentencing discretion. Assuming that error to be material, the sentencing discretion should be reopened.[4]
[4]R v Boyle (1996) 87 A Crim R 539, 546 (Callaway JA).
However, the Crown submitted that even if the sentencing discretion were to be reopened, no lesser sentence should have been imposed in the circumstances of this case.
Ground 2
In relation to this ground, the appellant noted that in R v Martin,[5] Maxwell P, Nettle and Redlich JJA had reviewed the authorities applicable to sentencing offences committed in a drug-induced psychosis. Their Honours concluded in that case:
Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.[6]
[5](2007) 181 A Crim R 352, [22].
[6]Ibid [30].
The appellant noted that the Court in Martin had cited R v Coleman,[7] where Hunt J said:
The degree of deliberation shown by an offender is usually a matter to be taken into account … intoxication would therefore be relevant in determining the degree of deliberation involved in the offender’s breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character.[8]
[7](1990) 47 A Crim R 306.
[8]Ibid 327.
On the plea, the appellant’s caseworker gave evidence that:
· in his experience, clients who have been on pure ice can become abnormally aggressive;
· the offence was totally out of character for the appellant; and
· in his assessment, the appellant’s used of ice was a ‘huge contributor’ to his offending.
Her Honour accepted that ice could cause uncharacteristically violent behaviour in some people, and that the appellant might well fit into that category. However, she went on to hold that the appellant’s drug-affected state was not a significant mitigating factor in the circumstances of this case.
The appellant argued that this was a sentencing error. While the learned sentencing judge had accepted that the offending was out of character, she had not related this in a meaningful way to his drug-affected state at the time of the offence. Her Honour’s remarks as to the need for deterrence, and condemnation of the appellant’s conduct, were a further sign of her failure to take into account as mitigation the fact that the appellant’s conduct was so totally out of character.
However, the Crown, in reply, submitted that the appellant’s drug-affected condition could not be viewed as a significant mitigating factor.
The Crown also drew attention to the fact that there was doubt as to whether this was the first time that the appellant had used ice. Her Honour noted in her sentencing remarks that the appellant had told the police, when interviewed, that this was his first encounter with that substance. However, a drug assessment report indicated that the appellant had first reported using ‘speed and ice’ when aged about 19 or 20. He said that he had not used these substances again until he was aged about 31, when, for a six-month period before the commission of this offence, he began to use speed and ice on a regular basis.
Her Honour’s ultimate conclusion was that it made no real difference whether this was the appellant’s first time using ice. She accepted that the offending was drug related and found that, since the commission of this offence, the appellant had made efforts to address this problem.
Finally, the Crown submitted that while the appellant’s moral culpability could be contrasted with that of a sober offender motivated purely by greed, the fact that he was drug affected when he committed this offence was likely to have heightened the fear instilled in the victim, given the particular combination of the weapon and threat.[9]
[9]R v Groom [1999] 2 VR 159, [24] (Batt JA).
Ground three
In relation to ground three, the appellant submitted that both the head sentence, and non-parole period fixed in this case, were manifestly excessive. It was argued that having regard to the matters that were put in mitigation, and accepted by her Honour, the imposition of a head sentence of four years, which was above the average for an offence of this kind, was excessive.
In addition to the matters in mitigation raised on the plea, it was submitted that the appellant had undergone significant rehabilitation during the 11 months, or so, that had elapsed between his having admitted his involvement to police, and his having been sentenced. The appellant had engaged in drug counselling and had found full-time employment. He had assumed responsibility for the care of his family and had given emotional and practical support to his partner throughout that period. In addition, there was no evidence of any further offending.
It was submitted that statistics published by the Sentencing Advisory Council and Judicial College of Victoria showed that the average custodial sentence for armed robbery was between two and a half and three years. The appellant submitted that while it was accepted that sentencing statistics did not ‘mark out’ a range for an acceptable sentence, they provided helpful guidance as to what that range might be.[10]He contended that the ‘powerful’ mitigating factors that were present could not have been given sufficient weight in the exercise of her Honour’s sentencing discretion.
[10]R v Detenamo [2007] VSCA 160, [13]. See also R v Bangard (2005) 13 VR 146, [11] and [23].
In reply, the Crown submitted that armed robbery was an inherently serious offence, as reflected by the applicable maximum penalty of 25 years’ imprisonment. The particular robbery committed by the appellant was a very serious example of its type and had a number of aggravating features. These included: the fact that the victim chosen was a soft target; the weapon of choice was a blood-filled syringe; the nature of the threat which accompanied the use of that weapon; the proximity of the weapon to the victim and the adverse impact of the offence upon her. An armed robbery committed in those circumstances warranted a substantial term of immediate imprisonment.
The Crown submitted that the prevalence and seriousness of this type of offending meant that any mitigating factors personal to the appellant must, to a degree, give way to the primary purpose of punishment, namely deterrence. It noted that the most significant of the matters in mitigation was the appellant’s plea of guilty and accompanying remorse, for which he was entitled to a sentencing discount.
However, the Crown submitted, his drug-affected condition was, as discussed above, not a significant mitigating factor. Moreover, the hardship to the appellant’s family did not constitute exceptional circumstances. In the light of the above, the Crown submitted that a sentence of four years’ imprisonment was clearly within the range.
While there was some justification for the relatively low non-parole period fixed by her Honour, the Crown argued that it would be wrong to substitute one that was even lower. To do so would risk undermining several important sentencing principles, in particular, general deterrence.[11]
[11]R v VZ (1998) 7 VR 693, 698 (Callaway JA); Director of Public Prosecutions v Josefski (2005) 13 VR 85, [43]-[46] (Callaway JA).
Conclusion
As was rightly conceded by the Crown, the sentencing judge referred to a number of matters that were somewhat speculative. The willingness of cashiers to work in supermarkets when robberies like this occur, and the prospect, cost, and public reaction to security measures that might be introduced in the wake of these kinds of robberies, will usually fall outside the range of considerations that should properly form part of the sentencing process. That is particularly so when there is no proper evidential basis for making these assumptions.
These were matters about which no evidence had been placed before her Honour. They were not uncontentious, and not so notorious that she could properly take judicial notice of them. Moreover, there is nothing in the Sentencing Act that allows a sentencing judge to engage in speculation of the kind undertaken here. Plainly, her Honour’s analysis went beyond consideration of the direct injury, loss or damage resulting from the offence.
It was further conceded by the Crown that this form of conjecture gave rise to a material error, and thereby vitiated the exercise of the sentencing discretion. In our view, that further concession was somewhat problematic. It is by no means clear that her Honour’s speculative remarks impacted upon the sentence actually imposed.
Nonetheless, having regard to the Crown’s position, we are prepared to assume that sentencing error has been established. That gives rise to a consideration of the operation of s 568(4) of the Crimes Act. That section provides that on an appeal against sentence, this Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at trial, and pass such other sentence in substitution therefor as it thinks ought to have been passed. In any other case, the Court is required to dismiss the appeal
The Crown submitted that given the particular circumstances of this case, notwithstanding sentencing error, no lesser sentence should have been passed. The appellant’s use of ice may have caused him to behave in a manner that was out of character but, as the sentencing judge observed, it could not operate as a significant mitigating factor. The aggressive and erratic behaviour of an offender suffering from the effects of a drug as dangerous as that are well known, and only too likely to exacerbate the ordeal experienced by any victim. Further, as her Honour noted, there were some aggravating features associated with the commission of this offence.
We were provided on the appeal with some material that was said to be relevant to the exercise of our discretion if we were to conclude that the appellant should be re-sentenced. That material included a confidential psychological report, which showed that he was experiencing depression and anxiety by reason of the high levels of stress caused by his incarceration, loss of custody of his children and relationship worries.
In our view, notwithstanding this material, the Crown’s submission that no different sentence should have been passed should be accepted. A sentence of four years’ imprisonment seems to us to be well within the range available to a sentencing judge for an offence of this nature. Moreover, a non-parole period of two years can only be regarded as extremely lenient. There is no basis for according still further benevolence. It follows that we would dismiss the appeal.
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