R v Perrone
[2004] VSCA 160
•25 August 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 18 of 2004
| THE QUEEN |
| v. |
| DAVID ROBERT PERRONE |
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JUDGES: | WARREN, C.J., WINNEKE, P. and ORMISTON, J.A. | |
WHERE HELD: | HORSHAM | |
DATE OF HEARING: | 24 August 2004 | |
DATE OF JUDGMENT: | 25 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 160 | |
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Criminal law - Sentence - Aggravated burglary, robbery and false imprisonment - Whether sufficient weight given to the appellant's prospects of rehabilitation and to the fact that the appellant had been in protective custody - Sentence of five years' imprisonment with minimum term of three years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. with Ms E. Gardner | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Victoria Legal Aid |
WARREN, C.J.:
The appellant, David Robert Perrone, and three co-offenders pleaded guilty to a number of charges arising from a robbery carried out on Australia Day, Monday 27 January 2003. The robbery occurred at the Coach and Horses Hotel in Clarkfield, Victoria. The licensee of the hotel was Mr Ian McIntosh.
The appellant and co-accused variously knew one another, including associations whilst serving prison sentences related to other matters. The other co-offenders were Matthew Johnson, Peter Anthony Brydon and Paul Robert Cowen. The appellant together with Johnson and Brydon hatched a plan to rob the hotel after closing time. A then girlfriend of the appellant was employed at the hotel and the appellant was known to the licensee, Mr McIntosh. As a result, the robbery plan involved the appellant leaving the hotel shortly before the robbery was carried out and later collecting the co-offenders after the event by car.
The immediate events that related to the execution of the robbery were that the appellant and the co-accused drank at the hotel and the appellant left before closing time. At about 11.20 p.m. the licensee, Mr McIntosh, left the bar area to go into the kitchen. As he entered the kitchen he saw the co-offender, Johnson, hunched down putting on a stocking mask. Johnson then came towards Mr McIntosh wielding a kitchen knife, that knife having been obtained from the kitchen. Next, Mr McIntosh was grabbed from behind by the co-offender Brydon, a knife held by him at the throat of Mr McIntosh, who was then verbally threatened.
Brydon and Johnson were not armed when they entered the hotel and armed themselves in the kitchen. During the events that followed Mr McIntosh was tied up with cable ties and dragged outside to an area known as the stables. He was struck in the face by Brydon, shoved into a toilet in the stables and made to sit on the floor. Brydon questioned Mr McIntosh about the location of cash on the premises and struck Mr McIntosh on the hands with a knife. Brydon then struck Mr McIntosh on the face.
Johnson, Brydon and Cowen took Mr McIntosh to the bar area and removed cash. A gold bracelet was taken from Mr McIntosh and various searches were made in the building for more cash. Johnson, Brydon and Cowen then took Mr McIntosh back to the stables, where he was tied up with the cable ties and heavy duty gaffer tape was placed over his mouth and used to bind his lower legs. Mr McIntosh was left and he remained there for 30 to 45 minutes, after which he shuffled along to the kitchen, reaching that area about 3.10 a.m. He then raised the alarm. He was injured and bleeding.
After leaving Mr McIntosh, the robbers, Johnson, Brydon and Cowen, left the scene. Later Cowen telephoned the appellant and he picked them up in his car.
The amount stolen was $7,419.95 in cash and a gold bracelet valued at $1,775. The appellant received $1,500 from the proceeds of the robbery.
The appellant and Cowen were spoken to by the police on 30 January 2003. The appellant gave a false account. Later, on 17 April 2003, the appellant was spoken to by the police again and made a further statement that was largely false. In late April 2003, Johnson and Cowen were arrested. Johnson denied any part in the robbery, but Cowen made full admissions and implicated Johnson, Brydon and the appellant. The police next arrested the appellant, but he declined to make any comment. On 9 May 2003, Brydon was arrested. He admitted his involvement but did not implicate anyone else. On 1 July 2003, the appellant volunteered to be re-interviewed. He admitted his involvement and implicated his co-offenders. Ultimately Johnson, Brydon, Cowen and the appellant all pleaded guilty to one count of aggravated burglary (count 1 in relation to the appellant). Cowen and the appellant pleaded guilty to one count of robbery (count 4 in relation to the appellant). Johnson, Brydon and Perrone each pleaded guilty to one count of false imprisonment (count 5 in relation to the appellant). Johnson and Brydon both pleaded guilty to one count of intentionally causing injury and one count of armed robbery. The appellant, Johnson and Brydon admitted a number of prior convictions.
The appellant was sentenced on count 1, the aggravated burglary, to four years' imprisonment; on count 4, the robbery, to four years' imprisonment; on count 5, the false imprisonment, to 18 months' imprisonment. The learned sentencing judge directed that six months of count 4 be served cumulatively on count 1 and that six months of count 5 be served cumulatively on count 1, making a total effective sentence of five years. A non-parole period of three years was imposed.
The sentencing judge sentenced all offenders on the same day and delivered reasons for sentence on a collective basis. Relevantly, for the purposes of this appeal, the co-offenders Johnson and Brydon were sentenced to four years' imprisonment on the count of aggravated burglary, 12 months on the count of intentionally causing injury, six years' imprisonment on the count of armed robbery and 18 months' imprisonment on the count of false imprisonment. Her Honour made orders for cumulation, giving rise to a total effective sentence of seven years' imprisonment with respect to Johnson and Brydon. The judge ordered that a period of five years be served by Johnson and Brydon before they would be eligible for parole.
The appellant appeals against the sentence on a number of grounds. It is convenient first to deal with the grounds of appeal in the order addressed by Mr Holdenson, Q.C., who appeared for the appellant.
First, ground 3, that the sentencing judge made an erroneous finding of fact. The alleged finding was that the appellant was aware of the likelihood of Mr McIntosh, the victim, being injured in the robbery and that he was so aware at all times. It was submitted that, as the appellant was not charged with armed robbery as were Johnson and Brydon, and as the appellant was not aware of the use of knives and the likelihood of such use, the judge's finding as to the awareness of the appellant was erroneous. In support of the submission, reference was also made to the judge's finding that the victim was assaulted.
Consideration of the careful reasons of the sentencing judge reveals findings that the appellant was unaware that Johnson and Brydon were armed with knives. There was, however, a specific finding that the appellant was aware that cable ties and duct tape might be used in the robbery.
Clearly, the sentencing judge, in referring to the appellant's awareness of the likelihood of injury to the victim and the fact of the assault, did no more than find that the appellant knew that Johnson and Brydon were taking cable ties and tape to the robbery and that fear and force could be used in the execution of the plan, namely, the prospect of the victim being tied up. There was ample evidence that the appellant was aware of the commission of the offence of intentionally causing injury. So much is borne out at the very least by statements made by the appellant in the final record of interview.
I do not regard ground 3 of the appeal as made out.
The next ground was ground 2, that insufficient weight was given by the sentencing judge to the fact of the appellant having been in protective custody. It was submitted that the judge gave no weight to this matter at all.
On the plea there was evidence before the sentencing judge of the fact that the appellant had been in protective custody. The source of the evidence was the report of the forensic psychologist, Mr Ian Joblin, the evidence of Ms Charlotte Ingram, the partner of the appellant, and matters put on instructions to the sentencing judge by the appellant's counsel. There were also matters agreed to by the Crown.
There were differences between the sources of evidence as to the reason why the appellant had been in protective custody. There was evidence to the effect that the appellant had been located in a cell with one of the co-offenders, whilst on remand, and that the appellant had been subjected to threats concerning the appellant himself and his family. The submissions also made, on instructions, by counsel on the plea were of threats, including death threats whilst in custody and that the appellant was placed in protective custody as a consequence. At the time of sentence her Honour accepted that the appellant had spent five months in protective custody. Her Honour, it was said in submissions before this Court, proceeded on an erroneous basis by not giving weight to that matter as a mitigating factor. It was said reasons for placement in protective custody were immaterial.
The criticism made of the sentencing judge was that in her Honour's reasons she stated that no evidence was before her that enabled the protective custody to be taken into account on the sentence.
Analysis of the judge's reasons in this respect is unduly strained and misconceived. Consideration of the reasons for sentence reveals that her Honour considered the evidence of protective custody before the court, including the undisputed fact of five months in protective custody. The finding of the judge that there was no evidence related to the reasons for the placement of the appellant in protective custody. Such finding, and indeed the reasons themselves, do not support a conclusion that the sentencing judge failed to take into account or allocate sufficient weight to the fact that the appellant had spent five months in protective custody. The sentencing judge did no more than find that the evidentiary burden lying with the appellant as to the reasons for his placement in protective custody was not made out. It was open to her Honour to do so. I do not consider that this ground of appeal is made out.
I turn next to ground 4, that the sentencing judge erred in not accounting for the better prospects of rehabilitation of the appellant, compared with the prospects of the co-offenders Johnson and Brydon. This ground was concerned with count 1, the aggravated burglary, and count 5, the false imprisonment. All three offenders, Johnson, Brydon and the appellant, fell to be sentenced on these two counts. It was submitted that her Honour fell into error in not reflecting the differentiation in prospects of rehabilitation for all three, given a finding that all three, Johnson, Brydon and the appellant, were equally culpable. It was complained that all three were treated the same way, that is, sentenced to four years (on count 1) and 18 months (on count 5).
There was no issue that Johnson and Brydon had substantially more prior convictions than the appellant. There was also the extent and nature of their involvement in the robbery compared with the appellant. Emphasis was placed in submissions on the family arrangements of the appellant, that he has children whom he cares for, that he has an established and supportive relationship and employment prospects as a painter and decorator. All these matters, it was submitted, meant the appellant had better prospects of rehabilitation than Johnson and Brydon, and that this was not reflected in the sentence.
It cannot be said that the sentencing judge treated Johnson, Brydon and the appellant in the same manner. The head sentences and non-parole periods of Johnson and Brydon differed considerably from those fixed with respect to the appellant. It is apparent from the reasons for sentence that her Honour carefully differentiated between Johnson and Brydon compared with the appellant in their respective overall sentences, and which her Honour was entitled to do. I do not consider, therefore, that ground 4 is made out.
The remaining ground of appeal is ground 1, that of alleged manifest excess in the sentence imposed on the appellant.
He is now aged 31 years. He has an established relationship with Charlotte Ingram, and who has a child with him. Reliance was placed on the circumstances of the plea of guilty at what was described as the first available opportunity, at the committal, and the commensurate advantages to the victims and the community of that plea of guilty. It was submitted that the appellant was entitled to a real discount because of his plea and his remorse.
The offences perpetrated by the appellant were very serious. In view of that seriousness and the maximum penalties for each count, in my view the sentences were not beyond range. It was particularly relevant as to the nature of the involvement of the appellant in the robbery and the surrounding circumstances.
I do not regard the sentence as manifestly excessive.
It follows that I do not find that any of the grounds of appeal are made out. I consider the appeal should be dismissed.
WINNEKE, P.:
For the reasons given by the learned Chief Justice, I agree that the appeal should be dismissed.
ORMISTON, J.A.:
I likewise agree.
WARREN, C.J.:
The order of the Court is that the appeal is dismissed.
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