R v Racovalis
[2002] VSCA 67
•9 May 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 13 of 2002
| THE QUEEN |
| v. |
| MICHAEL RACOVALIS |
---
JUDGES: | PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 May 2002 | |
DATE OF JUDGMENT: | 9 May 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 67 | |
---
Criminal Law - Sentence - Offences of armed robbery and theft - Sentence of two years' detention in Youth Training Centre - Recommendation that offender be considered for parole after serving six months of the sentence - Whether sentence premised on recommendation being given effect - Whether sentences engender a sense of justifiable grievance - Due proportionality between sentences of co-offenders - General deterrence and prospects of rehabilitation - Sentence not manifestly excessive.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr D.G. Wraith | Elizabeth Nickolls |
PHILLIPS, C.J.:
I shall ask my brother Chernov to deliver the first judgment.
CHERNOV, J.A.:
The applicant, who is now aged 19, and his co-offender, Nicholas Nicholas ("Nicholas"), who is now aged 22, each pleaded guilty in the County Court at Melbourne on 19 December 2001 to one count of armed robbery contrary to s.75A of the Crimes Act 1958. The applicant also pleaded guilty to one count of theft of a motor car in contravention of s.74 of that Act. The offences were committed on 4 July 2001. The maximum penalty applicable to armed robbery is 25 years' imprisonment and for theft, 10 years' imprisonment. Nicholas admitted 25 previous convictions. The applicant admitted two court appearances. One was before the Children's Court on 1 October 1999 in relation to theft, and for which he was placed on a good behaviour bond for six months. The other was at a Magistrates' Court on 9 May 2001 in respect of theft and handling stolen goods. In relation to the latter offences, the applicant was placed on a community-based order for three months with conditions that he undergo assessment and treatment for alcohol and drug addiction. That order was in force at the time of the commission of the offences.
After hearing a plea in mitigation made on behalf of each co-offender, the learned judge sentenced the applicant in respect of the armed robbery charge to two years' detention in a youth training centre ("YTC"). His Honour went on to say in respect of that sentence: " ... I recommend, because it is a matter for the Youth Parole Board ... that you be considered eligible for parole after serving six months of that sentence". The judge also sentenced the applicant to one month's detention at a YTC in respect of the theft charge to be served concurrently with the earlier sentence. His Honour further directed that all drivers' licences and permits held by the applicant under the Road Safety Act 1986 be cancelled and that he be disqualified from obtaining any such licence or permit for a period of six months from 21 December 2001.
Nicholas was sentenced to a term of imprisonment of two years and three months and his Honour ordered that he serve nine months of that term before being eligible for parole. Three months of that sentence was ordered to be served concurrently with the sentence which Nicholas was then serving by way of a combined custody and treatment order arising out of the imposition on him on 11 December 2001 of a sentence of twelve months' imprisonment for various offences.
The applicant now seeks leave to appeal against the sentence by notice of appeal dated 18 January 2002 which was filed out of time. By order made 30 January 2002 the Registrar extended the relevant time limitation, thereby enabling the applicant to pursue his application for leave to appeal against the above sentence. The grounds on which such leave is sought are these:
"1.Failure to fix a youth training centre sentence which reflected the intention that the accused be paroled after serving six months.
2.Failure to impose a sentence which is in parity with the sentence imposed on the Co-defendant.
3. Failure to take into account aspects of reform and rehabilitation."
Before dealing with these grounds, I shall set out briefly the circumstances giving rise to the offences. On the day of the offending the applicant was aged 18 and Nicholas 20. After consuming some alcohol late that day and into the evening, the offenders conceived a plan to commit a robbery. In order to do so they armed themselves, Nicholas with a machete and the applicant with a short Samurai sword. The pair also equipped themselves with gloves and pantihose taken from the applicant's home. Taking the keys to his brother's car without his brother's permission, the applicant, with the co-offender in the passenger seat of that vehicle, drove along streets looking for a suitable "soft" target, such as a service station, convenience store, milk bar or shop to rob. At approximately 11 p.m. on that night, gloved, masked and armed, the offenders came upon and entered the 7 Eleven convenience store at Nicholson Street, Brunswick. Wielding their weapons at the attendant they demanded and took money amounting to almost $800 from the till. The 19-year-old victim said in his victim impact statement that he was in fear of his life. From his description of the event, it seems that the applicant held his Samurai sword to the victim's throat and effectively threatened to kill him unless he co-operated and, in particular, disclosed the location of the safe. His Honour made no findings on that issue.
After taking the money from the shop as well as packets of cigarettes, the offenders fled the premises and drove to the Crown casino. They later attended the gaming venue at the Junction Hotel in Preston. On the following day, the applicant and Nicholas were arrested and, in effect, made full disclosure to the police in their respective recorded interviews, although they denied that the applicant held the knife to the victim's throat or that he had effectively threatened to kill him. The learned sentencing judge declined to make any specific findings on this matter.
In his sentencing remarks, however, his Honour recognised that, as presented in the plea on the applicant's behalf, the applicant had a difficult family background. The report of Mr Bernard Healey, a psychologist, which was tendered in evidence on behalf of the applicant, reveals that the applicant's parents separated when he was nine years old because of his father's alcohol abuse and aggression which was compounded by schizophrenia. His mother is also in receipt of a disability pension. He has a 30-year-old married brother who lives in a unit at the rear of his mother's home and who operates his own cabinet-making business on the premises. The applicant has worked with him during school holidays. Another brother of the applicant, who is aged 29, lives at home and is in receipt of a disability support pension because of a schizophrenic condition.
The applicant experienced a range of difficulties when growing up. For instance, by mid-adolescence, he was extremely overweight and had developed asthma as a result of smoking and "chroming". He had been sexually assaulted at the age of five and it appears that he used alcohol and drugs from a relatively early age, on one view, in order to detach himself from that incident. At the time of the compilation of the Healey report, however, the applicant had complied with the methadone program. Further, despite his schooling being adversely affected by drug use, the applicant managed to complete Year 12 and gain entry to diploma courses.
It is apparent from his Honour's sentencing remarks that he also had regard for sentencing purposes to the gravity of the offence and of the offending in this case and that general deterrence had an important role to play in the sentencing disposition. In my view his Honour was correct to have regard to those factors. His Honour noted that the offending took place at an all-night convenience store where, during those hours in particular, the attendants are vulnerable to armed attacks, usually by young people, who often seek money to satisfy their needs for drugs or alcohol or both. In this case, however, as his Honour noted, the offenders did not appear to have any pressing need for money but seemed to have decided to commit the robbery as if to fill in their time.
Although his Honour was not able to distinguish between the culpability of the offenders, he did recognise the differences in their personal circumstances, being reflected in matters such as their ages, prior convictions and personal developments. Importantly for present purposes his Honour accepted that the applicant had a genuine desire not to re-offend and that both offenders had family support. His Honour also took into account in his sentencing considerations the prospects of rehabilitation of the two offenders. It is quite apparent from his Honour's sentencing remarks and what he said in the course of the plea in mitigation, that he was sensitive to the fact that the offenders were young and that their rehabilitation was a most important sentencing consideration. His Honour was also mindful of the dangers of sending the applicant to an adult prison. Having thus balanced the relevant aggravating and mitigating factors and having taken into account relevant sentencing principles, his Honour imposed the sentences which have already been identified.
I now turn to consider the applicant's grounds for the application for leave to appeal and I do so in the order in which they were argued. Mr Wraith, who appeared before us for the applicant, submitted first that, because his Honour intended to impose a sentence whereby the applicant would be eligible to be paroled by the Youth Parole Board ("the Board") after serving six months of the sentence and because this cannot be achieved in light of the period of detention that has been imposed, his Honour failed to achieve the prime purpose of his sentence, namely, the securing of the applicant's parole at or about the expiration of the service of six months of the sentence. According to Mr Wraith, in a case where the period of detention is two years or more, the Board will not consider the offender's eligibility for parole until he has served considerably more than six months of the detention. It follows that the argument for the appellant must be that, had the sentence in this case been shorter, the Board would have given consideration to releasing the applicant on parole after he had served six months of the sentence. Thus, it was said for the applicant, his Honour erred in that he sentenced the applicant on a false premise. Consequently, the applicant falls to be re-sentenced by this Court.
We were informed by the Crown, and this material was not challenged by the applicant, that it appears that the Board is due to consider the applicant's eligibility for parole on 29 July 2002. If the applicant is considered suitable for parole, it would take approximately another two months before he would be released because such time is required to enable support to be put in place for the applicant while he is on parole. As I have said, the applicant was sentenced on 19 December 2001 and his Honour declared that he had already served 20 days in respect of the offence. Consequently, on the applicant's argument, his Honour intended that he be considered eligible for parole on or about 30 May 2002. The complaint is that, assuming the Crown is correct in its belief as to when the Board will consider the applicant's case for parole, he will have to wait an extra two months before that can take place and that is contrary to what was intended by his Honour.
In my view, the claim that his Honour somehow erred in the way asserted by the applicant is based on a misunderstanding of what his Honour said. First, the only sentence that his Honour imposed was that of two years' detention in a YTC. His Honour had no power to fix a non-parole period in respect of such a sentence[1], as this experienced judge obviously appreciated. His Honour recognised, in terms in his sentencing remarks to which reference has been made, that this was a "matter for the ... Board". That is why his Honour only recommended as to when the applicant might be considered eligible for parole. Secondly, his Honour did not say, as is implicitly claimed, that the applicant should be eligible for parole on or shortly after the day he completes six months of his sentence (less 20 days). His Honour recommended that the applicant be considered eligible for parole after he had served six months of the sentence. On one view, the effect of his Honour's recommendation was that the applicant not be eligible for parole before the expiration of those six months. Put shortly, it is clear from his Honour's sentencing remarks that he intended to impose on the applicant the sentence in question and it was not intended that the length of it be in any way related to his recommendation as to when the Board might consider him eligible for parole.
[1]Sections 11, 33 of the Sentencing Act 1991.
It seems to me that the applicant's real complaint is that the Board will not consider his eligibility for parole until July next and that there will be a delay of up to two months before he can be released, should his application for parole be granted. But such a complaint, even if justified, which is doubtful, does not demonstrate any error in his Honour's sentencing discretion.
Consequently, in my view, this ground must fail.
The next point argued for the applicant was that the sentence imposed on him was excessive when compared with that imposed on Nicholas, who had a worse history of offending, was older and received the benefit of orders for concurrency. In other words, it was the applicant's case that his Honour erred by failing to take sufficient account of the materially different personal circumstances of the co-offenders. This complaint raises the question whether there is such a lack of difference in the sentences imposed on the two offenders as to engender a sense of justifiable grievance or give the appearance in the mind of an objective observer that justice has not been done[2]. As the President said in R. v. Galea[3] in considering whether there has been undue (or insufficient) disparity between the sentences imposed on co-offenders, "it is a question of whether there is due proportion between the sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality".
[2]R. v. Taudevin [1996] 2 V.R. 402 at 404 per Callaway, J.A.
[3][2001] VSCA 115 at [16].
That there was no difference in the criminality of each offender for the offending was properly conceded by the applicant's counsel during the hearing of the plea in mitigation and was, correctly in my view, recognised by his Honour. The crime was a joint enterprise which was conceived and executed by the offenders together and there was little difference between the roles played by them in the crime. In the circumstances, there can be no realistic differentiation in their culpability for the crime.
It was essentially the difference in their personal circumstances that led his Honour to impose different sentences on the offenders and, in my view, the judge achieved a due proportion between the sentences and thus adequately reflected the relevant difference between the respective positions of the co-offenders. In that context, his Honour had regard, inter alia, to the fact that Nicholas was the older of the two and had a worse history of offending. It was essentially because of the applicant's relative youth and his prospects of rehabilitation that his Honour sentenced him to detention at a YTC rather than to an adult prison. The applicant also obtained the benefit of concurrency in respect of the theft count to which he had pleaded guilty. Nicholas, on the other hand, received a longer sentence in an adult prison and was subjected to a nine months' non-parole period which seems to me to be a relatively harsher sentence than that imposed on the applicant.
In the circumstances, it cannot sensibly be said that the applicant's sentence is excessive when compared with that imposed on Nicholas. It is difficult to see how an observer could conclude that injustice has been done to the applicant because there is not sufficient disparity between the sentences imposed on the co-offenders.
In my view, this ground must also fail.
The applicant's third ground is equally unsustainable. It was contended under cover of this ground that his Honour's discretion miscarried because the judge considered that general deterrence was paramount in the sentencing considerations, contrary to what was said in Mills[4]. In my view, however, it is apparent from his Honour's sentencing remarks that his Honour gave appropriate consideration to the applicant's prospects of rehabilitation and balanced that against the important sentencing principle in this case of general deterrence. As I have said, his Honour recognised that the applicant had reasonable prospects of rehabilitation and in that context took note of the fact that the applicant had family support. This was a primary reason why the judge considered that he should be detained in a YTC rather than being sentenced to adult prison.
[4][1998] 4 V.R. 235.
Given the seriousness of the offence and the circumstances of the offending, general deterrence was obviously a relevant sentencing consideration in this case. It is important that, in a case such as this, the sentence sends the message to those who contemplate or might contemplate committing crimes of this nature which involve, in effect, terrorising vulnerable shop attendants late at night, that, if caught, they would generally not be dealt with leniently by the courts. His Honour was conscious that the sentence should reflect the element of general deterrence, yet he also recognised that, given the relative youth of the applicant and his prospects of rehabilitation, the sentence should be constructed with a view to maximising the applicant's rehabilitation prospects. There is nothing in his Honour's sentencing remarks to indicate that he failed to give effect to the latter considerations or that he gave insufficient weight to them or that he gave undue weight to general deterrence. It has not been said, nor, in my view, could it be said, that the sentence is manifestly excessive. It is, in my view, a lenient sentence.
Consequently, this complaint must fail.
In the circumstances, therefore, I would dismiss the applicant's application for leave to appeal against the sentence.
PHILLIPS, C.J.:
I agree. In my opinion, Judge Davey, in dealing with the applicant, extended leniency right to its reasonable limits, and the sooner this young man accepts that and gets on with his life, building on the commendable things he is doing in custody, the better.
CHARLES, J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed.
0