R v Pullin; R v Lebeter
[2003] VSCA 141
•3 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 265 of 2002 |
| v. | |
| GRANT ANTHONY PULLIN | |
| THE QUEEN | No. 262 of 2002 |
| v. | |
| ZERETH LEBETER |
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JUDGES: | CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 September 2003 | |
DATE OF JUDGMENT: | 3 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 141 | |
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Criminal Law – Sentence – multiple counts of armed robbery – robbery – theft – appellants sentenced to effective terms of imprisonment of 5½ years and 6 years, with non-parole periods of 2 years and 3 months and 4 years respectively – whether manifestly excessive – armed robberies involving, on two occasions, threat with blood-filled syringe – youthful victim on one such occasion – offender aged 26, no prior convictions, early plea of guilty, assistance given to investigators, remorseful, good prior work record, escalating use of heroin in months before offences committed, prospects of rehabilitation nonetheless good – other offender aged 21, more present offences, prior convictions but no prior violence, early plea of guilty, assistance given to investigators, long term drug user, still some prospects of rehabilitation – appeals allowed - total effective sentences imposed of 3 years and 3 months with non-parole period of 18 months; and 3 years and 7 months with non-parole period of 2 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant Pullin | Mr G. Meredith | Michael Amad & Associates |
| For the Appellant Lebeter | Mr M.J. Croucher | Victoria Legal Aid |
CHARLES, J.A.:
I invite Ashley, A.J.A. to give the first judgment.
ASHLEY, A.J.A.:
Background
The appellants, Grant Pullin and Zereth Lebeter, pleaded guilty at the County Court at Melbourne on 4 October 2002 to the following offences:
Pullin: armed robbery, two counts (Counts 1 and 2)
robbery, one count (Count 3)
Lebeter: armed robbery, four counts (Counts 1, 2, 5 and 6)
robbery, one count (Count 3)
theft, one count (Count 4).
The maximum sentences for the various offences are as follows:
Armed robbery (s.75A, Crimes Act 1958), 25 years' imprisonment
Robbery (s.75, Crimes Act), 15 years' imprisonment
Theft (s.74, Crimes Act), 10 years' imprisonment.
On 9 October 2002 the appellants were sentenced to be imprisoned as follows:
Pullin: Count 1 – 5 years; Count 2 – 4 years; Count 3 – 3 years.
Three months of each of the sentences on Counts 2 and 3 were made cumulative on the sentence imposed on Count 1. The total effective sentence was thus 5½ years. The judge fixed a non-parole period of 2 years and 3 months.
Lebeter:Count 1 – 5 years; Count 2 – 4 years; Count 3 – 2 years; Count 4 – 1 month; Count 5 – 4 years; Count 6 – 4 years.
Three months of each of the sentences on Counts 2, 3, 5 and 6 were made cumulative on the sentence imposed on Count 1. The total effective sentence was thus 6 years. The judge fixed a non-parole period of 4 years.
In the case of each appellant recognition was given for periods of pre-sentence detention. Also in the case of each appellant unopposed orders were made under s.86 of the Sentencing Act 1991 for payment of compensation to the victims of the offences.
Appeal
Now Pullin and Lebeter appeal, leave having been granted by a judge of this Court under s.582 of the Crimes Act.
Pullin relies upon the following grounds:
“1. The sentence imposed is manifestly excessive.
2.The learned sentencing judge attached insufficient weight to the appellant’s prospects for rehabilitation.
3.The learned sentencing judge attached insufficient weight to the appellant’s remorse.
4.The learned sentencing judge attached insufficient weight to the appellant’s lack of prior convictions.
5.The learned sentencing judge attached insufficient weight to the appellant’s plea of guilty and co-operation with the authorities.
6.The learned sentencing judge imposed a sentence which in all the circumstances was crushing.”
Lebeter relies upon these grounds:
“1.That the sentence imposed upon the applicant by way of both head sentence and non-parole period is manifestly excessive.
(a)That the learned sentencing judge erred in failing to give sufficient weight to the personal antecedents of the applicant, as detailed in reports provided on the plea.
(b)That the learned sentencing judge erred in failing to give sufficient weight to the applicant’s early plea of guilty.
(c)That the learned sentencing judge erred in failing to give sufficient weight to the applicant’s prospects of rehabilitation.
(d)That the learned sentencing judge erred in failing to give sufficient weight to the youth of the applicant.
(e)That the learned sentencing judge erred in failing to give sufficient weight to parity with the co-accused.
(f)That the learned sentencing judge erred in failing to give sufficient weight to the applicant’s co-operation with authorities.”
Circumstances of the Offences
The three offences in which both appellants participated were committed on 14 and 16 April 2002 – two offences on the first of those days, the other on the second of them.
Two of the three offences committed by Mr Lebeter alone were committed on 26 April. The other offence was committed between 22 and 30 April. It was of very different character, as will be seen.
I turn to the circumstances of the individual offences, essentially by reference to their description by the learned sentencing judge. That description, for the most part reliant upon the accounts of the various victims, did not coincide in all respects with admissions made by the appellants in records of interview. There was no complaint that the description was inaccurate.
Count 1: At about 4.15 p.m. on 14 April 2002 Hans Nimb, a schoolboy aged 14, was walking along a laneway in South Yarra. He was approached by Pullin, who pushed him up against a rail on the side of the footpath and produced a syringe part filled with red fluid. The appellant mentioned the word “hepatitis”. Lebeter also approached the victim, apparently to deter any attempt by the latter to escape. Pullin told the victim to take off his watch. The victim did so. Lebeter pocketed it. The victim showed his attackers that he had no money in his wallet. Pullin patted the victim down, located a mobile phone in the victim’s front jeans pocket, took it, and gave it to Lebeter. The victim pleaded for the return of his watch. Lebeter gave it back. The appellants decamped, Pullin making a threat as they did so. The value of the phone was said to be $300.
Count 2: A little later on 14 April 2002 the appellants followed a Mr Anton Ng to his flat in Caulfield North after the three of them had alighted from a tram. Pullin gained entry to a common area of the premises by a subterfuge, and blocked Mr Ng’s path. He took out a half-filled syringe and held it about 30 centimetres from the victim. He told Mr Ng to give him his wallet and mobile. After Pullin had patted the victim down, the latter, who was frightened, offered Pullin money. In the event, he gave Pullin a mobile phone, a Diskman, and a $50 note, all of which had been in a shoulder bag that he had been carrying. Pullin warned him to make no report to the police. Lebeter had kept watch all the time, standing outside the entry door to the common area. The men left, taking money and goods to a value of $760.
Count 3: At about 10.30 p.m. on 16 April 2002, whilst Tao Chen was walking along a street in South Yarra, Pullin approached from behind and seized a mobile phone which Mr Chen was using. Two other men, one of whom was Lebeter, grabbed his shoulders. Pullin took a wallet from Mr Chen’s back trousers pocket. Then he, Lebeter, and the other man ran off. As they did so, Pullin called out a warning that Mr Chen would be killed if he followed them. The value of the phone and the wallet contents, in all, was $1,470.
Count 4: On an occasion between 22 and 30 April 2002, Lebeter entered a Coles Supermarket in Prahran. He stole a quantity of chewing gum, which he sold to a local milk bar proprietor for $40.
Counts 5 and 6: At about 5.30 p.m. on 26 April 2002 Kenny Yeoh and Jean Jin were walking along the laneway in South Yarra which was the scene of the offence encapsulated by Count 1. Two men, one of whom was Lebeter, confronted the pair. The other man had a knife. Lebeter had a mallet or hammer. The man with the knife held it not far from the chests of the victims. Lebeter held his weapon by his side, but made its presence obvious. The man with the knife demanded wallets and phones. The same were given up, in part to Lebeter, in part to the man with the knife. Then the attackers ran away. The value of the phones and wallet contents was apparently $882.
The total nominal value of the money and goods seized in the commission of the offences was about $3,450. The nominal value of the money and goods seized in the commission of the offences constituted by Counts 1 to 3, that is, the offences in which Pullin participated, was $2,530.
Arrest and Admissions
Pullin was arrested on 30 April 2002. He made admissions when questioned about the events the subject of Counts 1 and 2. He volunteered the conduct which in due course became Count 3. Indeed, in one respect he admitted more than was ultimately alleged against him.
Lebeter was arrested and interviewed on 30 April 2002. He made admissions. His answers tended to exculpate himself and implicate Pullin.
Prior Offences
Pullin had no criminal history. Born on 2 March 1976, he was aged 26 at the time of sentence.
Lebeter admitted eight appearances in the Children’s Court and Magistrates' Court between June 1995 and January 2002. They resulted in 31 findings of guilt, although there was not a conviction in every instance. About half of the offences involved dishonest conduct. Seven of the convictions, the first at a court appearance in May 2000, were for possession or use of drugs of dependence – in all but one instance, cannabis. Four offences pertained to possession of weapons – on three occasions a regulated weapon, on one occasion an unregistered hand gun. The balance of the offences was a miscellany. On no occasion, it appears, did an earlier offence involve use of violence. Save for a wholly suspended sentence of three days, which was imposed at a court appearance in January 2002, and for two community-based orders which were made at a court appearance in June 2000, previous findings of guilt had been punished at most by imposition of a fine. Lebeter, born 14 July 1981, was aged 21 at the time of sentence.
Plea in Mitigation – Pullin
Counsel for Pullin tendered in evidence the report of Dr R. Oei, the report of Mr Ken Dungey, psychologist, the report of Task Force (a drug and alcohol counselling service), the report of David Johnson (bail services officer), and a character reference. He called Mr Johnson, and as well the appellant’s mother and Mr Colin Dowes, fleet operations manager, Nationwide Group.
The gist of the plea was as follows:
•The offences were committed by a man then drug-dependent. They were undertaken in order to obtain funds to purchase drugs.
•The appellant had co-operated with police following his arrest. He had volunteered his involvement in the commission of the offence the subject matter of Count 3.
• The appellant pleaded guilty.
•The appellant was remorseful, particularly with respect to the circumstances of Count 1 and the use of a blood-filled syringe.
•The appellant was aged 26. He was currently living with his mother. That had been the case, though not continuously the case, throughout his life. Over a period of about six months leading up to his arrest, when his life had been in disarray, he had not lived at home.
•The appellant’s work record from the time when he left school after Year 8 until April 2001 was more or less continuous. From the time when he obtained a driver’s licence he had mainly worked in the tow truck industry. His employment in that industry ended in April 2001. He was then taking, and had been taking for a period of several years, amphetamines.
•As at April 2001 the appellant was affected by depression and anxiety. He sought medical help. It did not resolve his problems. In about October 2001 he began to use heroin. His usage much increased in the period leading up to commission of the offences.
•The appellant had no prior convictions.
•The appellant had been in custody for about a month after first being interviewed by police. It had been a salutary experience; one that minimised the need for specific deterrence.
•The appellant had complied with bail conditions; and had otherwise behaved whilst on bail in an extremely satisfactory manner. In particular, it was demonstrable that he had not used illegal drugs during the period of his bail, so far as testing disclosed the position. His general practitioner, Dr Oei, offered a reasonable prognosis vis-à-vis future drug use. He, the appellant, had attended some drug counselling sessions, which had been beneficial.
•Whilst bailed, the appellant had again secured employment in the tow truck industry. He had proved to be a reliable employee.
•In all the circumstances, the appellant’s prospects of rehabilitation were good.
Plea in Mitigation – Lebeter
Counsel conceded that a term of immediate imprisonment was the only available option. Her submissions, she said, were directed to the parole period. The gist of her submissions was this:
•The appellant’s serious offending conduct occurred over a relatively short period; and was the conduct of a young man who was desperate at the time.
•The appellant’s involvement came out of his situation as a heroin addict and his involvement with Pullin.
•Although the appellant had acted in concert with Pullin with respect to the offences reflected by Counts 1 and 2, his role had been subsidiary. It was Pullin who had threatened victims, patted them down and taken items. In the case of Count 2, Lebeter had been the lookout man.
•Lebeter’s role had also been passive in the case of the robberies the subject of Counts 5 and 6.
•The appellant’s passive role was consistent with his prior offending containing no instance of violence. The weapons involved in prior offences had been simply a BB gun and martial art weapons.
•The appellant had co-operated at a high level with investigating police officers.
•The appellant had pleaded guilty at the earliest opportunity.
•The appellant did not come from a deprived family background. His parents, however, had separated when he was 11; although he had always enjoyed the support of his mother. He had attended school up to Year 11, but when he left school he could not get continuous work and had drifted into the drug scene. He began using heroin at age 18.
•The appellant had real prospects of rehabilitation. Apart from matters already adverted to, he had complied with bail conditions and had not offended after his release on bail.
•In considering prospects of rehabilitation it was relevant that the appellant was a young man facing his first period of incarceration.
Sentencing Remarks
The learned judge described the various offences in the way that I have earlier summarised. He accepted that each appellant was at the time heroin addicted, and seeking money to make drug purchases. He took into account the co-operation of each appellant – without which, he said, the Crown might have faced evidentiary problems at trial. He took account of the pleas of guilty and the time when they were made.
Concerning parity, his Honour said that at the pertinent time the appellants were “hunting as a team”. Although Pullin had taken “the more active part”, his Honour regarded their responsibility as being equal – “for you, Lebeter, were undoubtedly there to back him up”.
Speaking specifically of Pullin, the judge noted the absence of prior convictions, a past good work record, a progression to heroin use fairly recently. His Honour accepted that Pullin did not suffer from Hepatitis C, in which case a circumstance of aggravation relied upon by the Crown was not present. His Honour accepted that Pullin was now drug free, that he had his mother’s support, that he had obtained a job, that time in prison had been a salutary lesson, and that he was remorseful. His Honour specifically accepted that the appellant was “well along the road to rehabilitation”, and that “there may not be a great need to deter you”. But armed robbery was a serious offence, apt to cause its victims fear, and general deterrence was relevant. Because of Pullin’s “very real prospects of completing … rehabilitation”, his Honour said, he would allow “a longer period of parole than might otherwise be the case”.
Speaking specifically of Lebeter, his Honour noted that the appellant had a significant criminal history, albeit not one involving violence. Lebeter, his Honour said, was still very young. He still had “some traces of conscience and decency”. He was, for his age, a long term drug abuser. Nonetheless, he was not unintelligent, and not intrinsically antisocial. There remained hope. Lebeter’s mother was supportive. In his case there was, however, a very real need for specific as well as for general deterrence.
For the most part, it can be seen, the learned sentencing judge accepted the matters advanced by counsel in mitigation. He found, however, contrary to the burden of the plea for Lebeter, that the appellants’ responsibility for the offences with which they were jointly charged was the same.
Resolution of the Appeals
Pullin
The written submissions filed on behalf of Pullin confined the issues, in my opinion, in an extremely sensible way. They took no issue with the proportional relationship between head sentence and non-parole period, nor with it being appropriate to cumulate part of the sentences on Counts 2 and 3 on the sentence on Count 1. Nor again did the submissions challenge the proportion of the cumulation in either case. The contention was simply that the individual sentences imposed were manifestly excessive.
In my opinion the learned sentencing judge correctly identified the circumstances of the offences which went to establish their individual criminality; and the matters which went in mitigation. It has been submitted for Lebeter in this Court that Pullin played the greater role in respect of the jointly-committed offences. Were that submission accepted, it might tell in favour of a conclusion that the individual sentences imposed on Pullin should be considered within the range. As will later become apparent, however, I do not accept the submission made for Lebeter. In the event, the question whether, in Pullin’s case, the individual sentences were outside the available range is an uncomplicated one.
This Court has understandably described a blood-filled syringe as a fearful weapon. That bears on the seriousness of the offences reflected by Counts 1 and 2. It is further the case that Count 1 was the more serious by reason of the age of the victim.
On the other hand, Pullin was a man aged 26 at the time when he committed the offences; and had no prior criminal history. His co-operation with the police was extensive. He pleaded guilty at an early stage. Having regard to his antecedents and his post-offence behaviour, his prospects of rehabilitation were accounted good. Further, whilst statistics hide a multitude of variables, it may be said that the sentences imposed on Pullin on Counts 1 and 2 were at the upper end of the range in the case of armed robbery by use of a blood-filled syringe; a disposition which, having regard to all the circumstances, would seem somewhat unusual.
All in all, I am persuaded that the individual sentences were manifestly excessive. I would allow Pullin’s appeal and re-sentence him to imprisonment as follows: Count 1 – 3 years; Count 2 – 2 years; Count 3 – 1 year. I would cumulate two months of the sentence on Count 2 and one month of the sentence on Count 3 on each other and on the sentence on Count 1. The total effective sentence would then be three years and three months. I would fix a non-parole period of one year and six months; a smallish proportion, though not precisely similar to that settled upon by the learned sentencing judge.
Lebeter
Counsel argued ground 1(e) separately. He submitted that Lebeter’s role had been subsidiary, and that this together with his relative youth, set on the scales against relatively minor prior offending, compelled passing of shorter sentences upon him than had been imposed on Pullin on Counts 1-3. Counsel also made a submission concerning the respective non-parole periods, addressing the difference in the proportion of the total effective sentences which the judge ordered should be served by his client and Pullin.
Concerning the individual sentences passed on Counts 1 – 3, and the extent of cumulation in respect thereof, I am not persuaded that the judge erred in treating Lebeter’s responsibility as being equal with that of Pullin. It is certainly true that in each instance Pullin was an actual aggressor; whereas in two of the three instances Lebeter had no physical contact with the victim. It is also true that Pullin made demands on the victims; and made threats when he and Lebeter fled. But that is only part of the picture. The judge found that the men hunted as a team; and in my view, upon the totality of the material, that was a well justified conclusion. The submission made by Lebeter’s counsel that his client was the less culpable rested in part, I should add, upon his client’s record of interview. In that record of interview Lebeter constantly emphasised Pullin’s role – to the point of implicating him in an offence with which, apparently, Pullin had no involvement. Lebeter also emphasised Pullin’s role in the ultimate disposition of the proceeds of the robberies. The learned sentencing judge did not indicate acceptance of Lebeter’s version of events in respect of those matters. Rather, in concluding that the men hunted as a team, and that their responsibility was equal, his Honour focussed on the common origin of the robberies – the need of each appellant to obtain money for drug purchases. He did not draw a distinction based upon the age of the offenders; and in my view there was no fault in that course in the particular case. Certainly Lebeter was young; and youth is certainly a relevant sentencing consideration. But here the youthful offender had some criminal history, whilst his co-offender did not; and in my view his Honour was not obliged to infer that the older man had led the younger man into committing the offences.
I turn to the submissions as to manifest excess founded on ground 1(a) – (d) and (f). Because, all in all, I consider that Lebeter’s sentence should, in respect of the jointly committed offences, reflect parity with the sentence imposed on Pullin, I consider that his appeal also should be allowed. I would re-sentence him to 3 years' imprisonment on Count 1, 2 years on Count 2, 1 year on Count 3, one month on Count 4, and 2 years on each of Counts 5 and 6. I would cumulate two months of the sentence on Count 2, one month of the sentence on Count 3, and two months of the sentences imposed on Counts 5 and 6 on each other and on the sentence imposed on Count 1. That would yield a total effective sentence of 3 years and 7 months. I would fix a non-parole period of 2 years.
About the sentences which I propose in Lebeter’s case, I should make three points. First, in my opinion, and consistently with the approach of the learned sentencing judge, the criminality of Lebeter’s conduct concerning Counts 2, 5 and 6 was essentially similar. Second, notwithstanding that the offences reflected by Counts 5 and 6 arose out of the one overall transaction, I consider it appropriate to partly cumulate sentence in each instance. Third, whilst again the proportion which I propose is not quite the same as that upon which the learned sentencing judge settled, I consider that the non-parole proportion determined by his Honour was broadly correct. It is true that the proportion was greater than that applied in Pullin’s case; but there were considerations, not least Lebeter’s past criminal history and his more extensive current offending, which told against early release. It could not be denied, I think, that Pullin merited a disposition which would particularly aid his prospects of rehabilitation.
CHARLES, J.A.:
I agree with Ashley, A.J.A.
CHERNOV, J.A.:
I also agree.
CHARLES, J.A.:
The orders of the Court are as follows:
Both appeals are allowed. The sentences below are set aside and the appellants are re-sentenced as follows.
The appellant Pullin is sentenced to terms of imprisonment as follows:Count 1 - 3 years.
Count 2 - 2 years.
Count 3 - 1 year.
The Court orders that two months of the sentence imposed on count 2 and one month of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1. The new total effective sentence therefore becomes 3 years and 3 months. The Court fixes a non-parole period of 18 months.
The appellant Lebeter is sentenced to terms of imprisonment as follows:Count 1 - 3 years.
Count 2 - 2 years.
Count 3 - 1 year.
Count 4 - 1 month.Count 5 - 2 years.
Count 6 - 2 years.The Court orders that two months of the sentence imposed on count 2, one month of the sentence imposed on count 3 and two months of each of the sentences imposed on counts 5 and 6 be served cumulatively upon each other and upon the sentence imposed on count 1. The new total effective sentence becomes 3 years and 7 months. The Court fixes a non-parole period of 2 years.
The Court declares that in the case of Grant Anthony Pullin the period of 366 days and in the case of Zereth Lebeter 437 days be reckoned in each case as the period of imprisonment served up to today under the sentence imposed and directs that this declaration be entered in the records of the Court.
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