R v Pio
[2007] VSCA 180
•30 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 343 of 2006
| THE QUEEN |
| v |
| WILLIAM PIO |
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JUDGES: | CHERNOV, VINCENT and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 August 2007 | |
DATE OF JUDGMENT: | 30 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 180 | |
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Criminal law – Sentencing – Attempted armed robbery – Youth – Relevant prior convictions – Totality – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms F L Dalziel | Victoria Legal Aid |
CHERNOV JA:
I call on Vincent JA to deliver the first judgment.
VINCENT JA:
The appellant pleaded guilty in the County Court at Melbourne, on 27 October 2006, to one count of attempted armed robbery. He was aged 22 years at the time of this offence and 23 years at the date of sentencing.
He admitted 57 prior convictions arising from ten court appearances between November 1998 and December 2004. Significantly for present purposes, they included three counts of robbery, twelve counts of theft, three counts of burglary, one count of obtaining property by deception, one count of handling stolen goods, and one count of assaulting a police officer. There were also various drug-related offences in the form of the use and possession of a drug of dependence, namely heroin or cannabis, and a number of offences connected with alcohol.
After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of three years, in respect of which a non-parole period of 18 months was fixed. His Honour further ordered that that sentence be served concurrently with any other sentence that the appellant was then undergoing.[1]
[1]The appellant was, at the time of sentencing for this offence, serving a combined custody and treatment order with his custodial term set to expire on 28 December 2006.
Having been granted leave to do so, on 4 May 2007, the appellant seeks to overturn the sentence imposed upon him on the two grounds set out in his Statement of Grounds that:
1.The discretion of the learned sentencing judge miscarried in that he failed to give effect to the principle of totality.
2. That the sentence is manifestly excessive.
I turn to the circumstances relating to the commission of the appellant's offence.
The Background
On the evening of 6 June 2006, at approximately 11.21 pm, the appellant called a taxi service to attend at his address, with a plan to rob the driver of his money. However, he experienced some misgivings and instead, he decided to think about the matter. Approximately half an hour later, and after having consumed some tablets, which he later told police gave him the confidence to carry out his intention, he called for another taxi.
At approximately 11.47 pm, Ahmad Zoghaib, the taxi driver who responded to that call, attended at the appellant's address in Fitzroy.
When the taxi arrived, the appellant approached the car and got into the back seat, leaving the door open and keeping one foot outside. He then put his left arm around Mr Zoghaib's neck, in a headlock-type hold, and produced a pair of scissors, holding them in front of the victim's face. At that time, Mr Zoghaib was unaware that they were scissors and instead thought that he was being threatened with a hand-made knife.
Thinking initially that the situation was some kind of joke, Mr Zoghaib turned towards the appellant, and it was only then that he noticed that the appellant was wearing a balaclava or scarf over his nose and mouth.
The victim asked the appellant what he wanted. The appellant replied, "I want all your money." Mr Zoghaib then asked him, "What do you need? How can I help you?", to which the appellant responded, "Just give me all your money."
The driver then put his arm between his face and the scissors, and the appellant pulled the scissors away temporarily, before pointing them back at his face and making a further demand for his money.
Mr Zoghaib, in his statement to the police, indicated that it was at this point that he felt the appellant was really quite serious and, fearing for his life, he grabbed at the appellant's hand and the weapon. During the struggle, Mr Zoghaib managed to release his seat-belt and opened his car door. The appellant then pulled the scissors away, got out of the taxi and ran from the scene.
Police arrested him on 28 June 2006 and interviewed him on the following day. Initially he made what is sometimes called a "no comment" interview to allegations put to him about the incident, but later made the following admissions:
· He told police that he called the taxi with a plan to scare him and rob him of his money. He said that he felt guilty at the time, but that the pills took over and he needed the money.
· He admitted grabbing the driver in a headlock from behind and threatening him with the scissors whilst demanding the driver's money.
· His reason for attempting to commit this armed robbery was that he needed the cash for bills and food, as he was working casually and receiving $400 per fortnight from Centrelink.
The Grounds
Counsel for the appellant indicated at the outset of her submissions that ground 1 could be perceived as a particular of the complaint of manifest excess, but, as it has been formulated as a discrete ground, I will address it on that basis, as well as taking it into account when dealing with the contention that the sentence was manifestly excessive.
It was argued in support of ground 1 that the sentencing judge failed to take adequately into account the fact that at the time of sentencing the appellant was serving a sentence imposed on 8 August 2006, under which he was required to serve a period of six months in custody followed by a three-months treatment regime. The judge was clearly mindful of this circumstance, and in his sentencing remarks stated:
[Your counsel] spoke of attempts of rehabilitation in the form of taking Methadone in the prison system and he said that you have attempted to complete various courses but unfortunately circumstances have militated against the production of certificates.
I am prepared to accept that you have done what you could whilst in prison and I take these matters into account but in this case rehabilitation, whilst it is a factor that must be borne in mind, must give way to principles of specific and general deterrence and when I am dealing with crimes of this type. Your counsel submitted that [I] should delay the sentencing exercise here, to see how you manage with the combined custody and treatment order. I do not believe that is appropriate. The decision I think is one that should be mind immediately and one which to a large extent ignores the fact that the Magistrates Court has deemed that a treatment order is appropriate.
I have decided that on this charge of attempted armed robbery you are to be sentenced to a period of three years imprisonment but in the circumstances those issues raised by your counsel have prompted me to order a significantly longer period of parole than ordinarily would be the case and the order I make is that you serve a minimum term of 18 months before you become eligible for parole and there is no pre-sentence detention.
I just want to clarify something. I want to make it clear that this sentence is to run concurrently with the sentence you are presently undergoing.
Not only is there nothing in his Honour's approach to this aspect, or the disposition at which he arrived, which suggests that he was not taking full account of the principle of totality or bespeaks error of the kind asserted, the passage set out above makes clear, in my opinion, that the judge was astute to deal with the matter in accordance with the principle and, in particular, not to impose anything more than the minimum sentence required in the proper exercise of his discretion.
Ground 2
The appellant contends that the sentence imposed upon him was manifestly excessive in the circumstances having regard to the following considerations:
(a)he had not previously been imprisoned in an adult facility;
(b)he was still a youthful offender, being 23 years at the time of sentence;
(c)his rehabilitation was clearly a significant sentencing consideration;
(d)his early acceptance of responsibility for his conduct; and
(e)the significance of the appellant's history of mental health problems as disclosed in the psychologist's report tendered to the court.
His Honour clearly had regard to each of these factors in determining the sentence to be handed down upon the appellant, and referred specifically to each of them. There is nothing in his sentencing remarks which could reasonably give rise to a concern that he may not have addressed any relevant sentencing principle or factual circumstance when dealing with this matter, and the sentence itself is clearly within the range of those available in the proper exercise of sentencing discretion.
In this regard, it must not be forgotten that, as his Honour pointed out:
Drivers are a soft target. They are usually alone, seated, probably with a seatbelt on and with limited ability to move in the car and for these reasons they are particularly vulnerable targets and I regard this as particularly serious offending.
These comments echo the remarks made in this Court on a large number of occasions over recent years. For example, Buchanan JA, in R v Swingler[2], said:
The crime of armed robbery perpetrated against defenceless, isolated persons late at night is serious and calls for condign punishment in order to deter others. The seriousness of the offence in the eyes of Parliament is marked by the maximum sentence prescribed for it. In R v Orlikowski …, Winneke P, speaking of the attempted armed robbery of a service station by a youth wielding a knife, said:
One has to be careful, I think, in entertaining applications against sentences of this sort, not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims …
Similar remarks have been made in many cases, as I have indicated; for example, to refer to a few of them, by Chernov JA in DPP v Daly, Winneke P in R v Cotry, and by myself on more than one occasion.[3] The same approach has, unsurprisingly, been adopted in other jurisdictions in this country.[4]
[2][2001] VSCA 26, [11].
[3]See R v Lee [2006] VSCA 80, [24] per Vincent JA; DPP v Daly [2004] VSCA 63, [2] per Chernov JA; R v Cotry [2002] VSCA 13, [8] per Winneke P; R v JDP [2001] VSC 204, [18] per Vincent J; and R v Deering [2000] VSCA 181, [18] per Winneke P.
[4]See Reg v Fernando [2002] NSWCCA 28, [62] per Spigelman CJ; and Reg v Philips; Reg v Simpson [2002] NSWCCA 167, [51], [52] per Carruthers AJ.
The appellant in this case decided to commit this serious crime for no better reason than shortage of money, and, as earlier mentioned, he was no stranger to the criminal justice system, with a relevant history that included convictions for three earlier robberies. Specific deterrence was an important sentencing consideration in this case and, as I have indicated, general deterrence is regarded as particularly relevant in such matters.
Being unable to detect error, either specific or to be inferred from the sentence itself, I would dismiss this appeal.
CHERNOV JA:
I agree.
KELLAM JA:
I also agree.
CHERNOV JA:
The order of the Court is that the appeal is dismissed.
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