R v Ransom
[2005] VSCA 169
•19 July 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 293 of 2004
| THE QUEEN |
| v. |
| ANDREW JAMES RANSOM |
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JUDGES: | CHARLES, VINCENT and ASHLEY, JJ.A. | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 19 July 2005 | |
| DATE OF JUDGMENT: | 19 July 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 169 | |
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Criminal law - Sentence – Whether manifest excess – Individual sentences – Extent of cumulation – Total effective sentence – Unusually high non-parole period – Need for explanation – Whether explained.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.M. Horgan, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Victoria Legal Aid |
CHARLES, J.A.:
I invite Ashley, J.A. to give the first judgment.
ASHLEY, J.A.:
The appellant, Andrew Ransom, a man now aged 34 years, appeals by leave against the sentence imposed upon him by a judge of the County Court on 5 November 2004. On that occasion the appellant, having pleaded guilty to five counts of armed robbery committed between 14 and 25 August 2003, was sentenced on each count to five years' imprisonment. Six months of the period of imprisonment imposed on each of counts 2 to 5 were cumulated. That yielded a period of seven years' imprisonment. To that, the judge added a further period of eight months' imprisonment, being the period of a partly suspended sentence which her Honour had imposed upon the appellant in June 2003 and which the appellant had breached by the robberies which he committed in August that year. Her Honour declined to do otherwise than cumulate the entirety of the partly suspended sentence. In the event, the total effective sentence imposed upon the appellant was seven years and eight months. A period of six years and four months was fixed before the appellant would become eligible for parole.
The Full Statement of Grounds of Appeal, set out in a document dated 13 June 2005, reads as follows:
"1.The individual sentences, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.
2. The learned sentencing judge erred:
(a)in ordering total cumulation of the restored partially suspended sentence;
(b)in placing excessive weight on the fact that the appellant's offending was in breach of that partially suspended sentence;
(c)in appearing to regard that previous sentence as unduly lenient.
3. The learned sentencing judge erred:
(a)in failing to fix a sufficient disparity between the non-parole period and the total effective sentence;
(b)in failing to have any or sufficient regard to factors suggesting a shorter non-parole period and a longer period of supervision on parole, namely full admissions, early pleas of guilty, service of the sentence as a prosecution witness, and his psychological and psychiatric state at the time of offending and early in his remand compared with the time of plea and sentence."
Each of the five armed robberies involved an attack by the appellant upon a so-called "soft target" - a video store. In each instance the appellant was armed with a knife. In each instance threats were made. It is understandable that the sentencing judge considered that the six victims of the five offences would have suffered considerably by the appellant's actions.
It is apparent that the appellant was considerably affected by alcohol and other drugs at the time when these offences were committed and that his psychological state was otherwise fragile in consequence of failed or failing relationships with his mother and de facto partner. So also is it the case that the appellant made full admissions and indicated an intention of pleading guilty at an early stage.
On the other hand, the five offences were discretely serious and the appellant had a very bad criminal record. As best I can see, between January 1989 and June 2003 he was before the courts on 31 occasions, often in respect of multiple offences. His criminal history included offences of robbery and robbery with actual violence and very many offences involving dishonesty. He had been sentenced to terms of imprisonment on some 20 occasions. On seven occasions, as I read it, he had breached an order and had been brought up and sentenced to imprisonment for such a breach. His criminal behaviour had, in short, continued despite both carrot and stick.
In the event, I do not at all agree that either the individual sentences imposed in respect of the five counts of armed robbery or the extent of cumulation were manifestly excessive.
I go next to the cumulation of the eight months partly suspended sentence which the learned judge had imposed upon the appellant in June 2003. At that time the appellant had pleaded guilty to counts of armed robbery and recklessly causing serious injury. The offences had been committed in 1997. The appellant had been in custody in Queensland in the period 1998 to early 2003. Only at the conclusion of that imprisonment had he been extradited to Victoria. He had apparently arrived here in February 2003. He had been four months in custody when he came up for sentence in June of that year.
The total effective sentence imposed in June 2003, twelve months imprisonment, was indeed merciful. It reflected, amongst other things, the length of time that had elapsed since the commission of the offences, the fact that the involvement of the appellant and other persons whom he named in connection with commission of the offences might have gone undetected but for his admissions, his stated willingness to give evidence against co-offenders, his early pleas of guilty, the loss of the opportunity of part concurrency of sentences - that is, because the appellant had remained in Queensland until the conclusion of a lengthy period of imprisonment imposed in that State in 1998 - and prospect of rehabilitation which the learned judge assessed as being fairly good.
The effect of the sentence imposed in June 2003 was that the appellant was immediately released from custody. But within two months he had committed the five armed robberies the subject of the fresh counts.
The judge was bound to restore the partly suspended sentence. The sentence pertained to quite discrete offences. The only question is whether there was error in her Honour not cumulating some part of that sentence. Her Honour evidently considered that the total effective sentence which resulted from full cumulation reflected the appropriate overall length of sentence for criminal conduct of similar kind committed on multiple occasions years apart. Such a conclusion, in my opinion, was well open. I do not accept the submission that total cumulation of the partly suspended sentence represented her Honour over-correcting for what she then took to be excessive leniency on her part in the June 2003 sentence. Nor do I accept the submission that such cumulation was a response to the fact that the appellant had re-offended during the period of operation of the partly suspended sentence. Rather, her Honour treated that circumstance, properly, as going in aggravation of the subsequent offences. I repeat also that the sentence imposed by her Honour in June 2003 was evidently merciful, being such as took full account of the mitigating circumstances to which I have earlier referred. It was not necessary to take those circumstances into account on a second occasion.
I turn to the contention that error was revealed in the sentencing process in that there was insufficient disparity between the head sentence and the non-parole period; and that there was error in that the non-parole period was intrinsically very high. Counsel for the appellant submitted that the disparity was unusually small. The non-parole period was over eighty percent of the total effective sentence. Further, the sentencing remarks gave no explanation why that should have been so. Moreover, counsel contended, the small disparity did not sit comfortably with the judge's observation that support and supervision of the appellant in the community would be vital to his rehabilitation; or with the submission by appellant's counsel, not contradicted by counsel for the Crown, that the case called for a long period of parole in order, in effect, to assist the appellant's reintegration into society.
Statistically, I accept, the disparity between the total effective sentence and the non-parole period was small. So also, it is the fact that the judge did not, in that section of her remarks where she fixed the non-parole period, explain why she had fixed it at that proportion of the head sentence. Again, I accept that, the substantial period of the total effective sentence made up by the non-parole period being unusual, some explanation why that was so was required in her Honour's reasons.
But in my opinion the reasons should be read in whole, not in artificially segmented parts. Read as a whole, it seems to me very clear that her Honour had little faith in the appellant not re-offending, or in him being successfully rehabilitated. She was, moreover, understandably concerned to protect the public. She observed, no doubt correctly, that the deterrent effect of imprisonment upon the appellant had been low or nil in the past. She further observed that the appellant's indication of remorse was to be seen in the light of him committing again the sort of offences which he had committed in the past.
In my respectful opinion, her Honour's conclusions were well open. It is true that she had before her psychiatric opinion which suggested that there was a real prospect of the appellant being successfully rehabilitated. But also before her was material which showed that similar optimism had been expressed in the past and that it had been misplaced.
Where a non-parole period is fixed, it must be tailored to and, in the event of an appeal, must be considered in the context of, the facts of the particular case. So considered, I think that the learned judge did not fall into error in concluding that a non-parole period should be set which was a relatively high proportion of the total effective sentence.
I would dismiss the appeal.
CHARLES, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CHARLES, J.A.:
The order of the Court is that the appeal be dismissed.
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