R v Tack
[2002] VSCA 32
•13 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 136 of 2001
| THE QUEEN |
| v. |
| ALAN JOHN TACK |
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JUDGES: | WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 March 2002 | |
DATE OF JUDGMENT: | 13 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 32 | |
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Criminal law - Sentence - Aggravated burglary, causing serious injury recklessly and theft - Total effective sentence of 27 months' imprisonment and minimum term of 14 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Oakley Rickard |
WINNEKE, P.:
I will invite O'Bryan, A.J.A. to deliver the first judgment in this appeal.
O'BRYAN, A.J.A.:
The appellant was presented in the County Court, with two co-accused, on 25 May 2001 on a presentment containing seven counts. He entered a plea of guilty to counts 3, 4 and 7. Counts 1, 2, 5 and 6 only concerned his co-accused. Count 3 presented that the appellant, together with Brendan John Kupsch and DavidHalliday, at Archies Creek on 29 September 2000, entered as trespassers the Royal Mail Hotel with intent to assault the proprietor, Maurice Burton. Count 4 presented that the appellant, together with Kupsch and Halliday, at the same place and date, without lawful excuse caused injury to the said Burton. Count 7 presented that the appellant, at the same place and date, stole a cash register and contents belonging to the said Burton to the value of $2,685.
After plea, the appellant was sentenced as follows: count 3 - 18 months' imprisonment; count 4 - six months' imprisonment; count 7 - 12 months' imprisonment. A cumulation order was made that three months of the count 4 sentence and six months of the count 7 sentence be served cumulatively on each other and count 3, a total effective sentence of 27 months' imprisonment. A minimum term of 14 months was fixed before the appellant would be eligible for parole.
The appellant applied for leave to appeal the sentence on two grounds. The first ground is that the sentence was manifestly excessive and various particulars of this ground were specified. The second ground is that the sentencing judge misconceived the seriousness of the appellant's role in the commission of the offences vis-á-vis the co-accused. On 27 September 2001, Buchanan, J.A. granted the appellant leave to appeal.
The appellant was born on 22 February 1973 and was aged 27 when the offences were committed. He had no prior convictions.
The co-accused Kupsch was aged 33 when the offences were committed and had four prior convictions from one court appearance for aggravated burglary, burglary, causing injury intentionally and theft. Kupsch was sentenced on five counts to a total sentence of four years and six months' imprisonment. The co-accused Halliday was aged 23 when the offences were committed and had six prior convictions from two court appearances for causing injury intentionally (two), burglary, aggravated burglary (two) and theft. Halliday was sentenced on three counts to a total sentence of three years and six months' imprisonment. Both Kupsch and Halliday had pleaded guilty in the County Court before the sentencing judge on offences of aggravated burglary, causing injury intentionally, burglary and theft committed in 1998 and had been sentenced to 12 months' imprisonment wholly suspended for two years. The earlier offences had similar features to the offences committed in September 2000. The suspended sentence of 12 months was reactivated by the sentencing judge and a minimum sentence of six months was fixed.
The facts relating to the September 2000 offences may be briefly stated. On 20 September 2000, Kupsch, Halliday and an unidentified male person travelled in a stolen car to Archies Creek, where the appellant resided, and proceeded to the Royal Mail Hotel "to have words with Burton" or "to push Burton around". Kupsch was known to Burton and had reacted jealously to Burton when he visited Mrs Kupsch and his daughter after Kupsch had separated from his wife. Upon entering the hotel, the unidentified male and Halliday hit, kneed and kicked Burton, and Halliday struck Burton with a bar stool. Burton sustained deep lacerations to his scalp, a swollen lip, bruising to his face and bruising and tenderness to his chest and back. He was taken to hospital and detained overnight for observation. The appellant seized the cash register containing money from the bar and left the hotel. He did this with a view to making the assault look like a burglary. The appellant kept the contents of the till and no restoration was made before sentence. Items of furniture in the hotel, including a billiard table, were tipped over and damaged by the co-accused. Later in the evening the appellant approached police and gave them a version of events that exculpated him and inculpated Kupsch. Subsequently, on 5 October 2000, the appellant was interviewed and gave an account of the events of 29 September in the form of a record of interview.
At the plea, counsel for the appellant put to the court that his client did not know the extent of what was going to take place. This argument carried little weight with the sentencing judge, who remarked that the appellant was a friend of Kupsch and knew Kupsch was seeking revenge for supposed misconduct by Burton. Counsel also relied upon the circumstance that the appellant did not participate in the assault but was an onlooker. Reliance was placed upon the appellant's plea of guilty and absence of prior convictions. Counsel submitted that the sentences should be totally concurrent and that the total sentence should be wholly suspended.
The personal circumstances of the appellant included that he was a qualified mechanic and conducted a lawn-mowing business and carried out security work until he was injured a few weeks before the offences were committed. He was married, but had separated from his wife and his two children two months before the offences. He had complained of depression, poor sleep and suicidal feelings, and medical evidence before the court showed mild depression symptoms and an adjustment disorder in the appellant.
Mr Croucher, for the appellant, submitted under ground 1 that the sentence imposed indicates the sentencing judge gave too little weight to mitigating factors such as the early plea of guilty, good character and good work history. Mr Croucher further submitted that the personal circumstances of the appellant were given too little weight as mitigating facts, in particular that the appellant was at a low ebb shortly before the offences were committed in that he had suffered a hand injury and had been rendered unfit for work as a mechanic or security guard and had consequently become depressed. Further, he had good prospects for the future because he had formed another relationship, and is a person who has shown he is unlikely to offend again. Mr Croucher further submitted that in the circumstances, particularly because all the offences arose out of one incident, no cumulation order was called for and his Honour erred in ordering cumulation, particularly in relation to the theft. Further, Mr Croucher submitted that the theft of the cash register and its contents was an opportunistic crime for which a sentence of 12 months' imprisonment was clearly manifestly excessive. By comparison, the co-accused, who each pleaded guilty to one count of criminal damage, were each sentenced to four months' imprisonment to be served concurrently with other sentences. In relation to the assault, Mr Croucher submitted that the sentencing judge erred in ordering cumulation because the basis of the aggravated burglary count was an intention to assault, the appellant did not physically assault the victim and the two offences were very much part of the one incident.
Mr McArdle, for the respondent, submitted that the individual sentences were not manifestly excessive but within the range for the offences, and were serious examples of their type. The burglary involved four men who intended to assault the victim; the victim suffered significant injuries; and the theft of the till involved a significant amount of money none of which has been repaid. The sentence for theft, Mr McArdle argued, was within the range and the cumulation orders were appropriate in the circumstances. Mr McArdle submitted that the sentencing judge correctly described the offences as callous, high-handed, cowardly and dishonest, and, in the case of each offender, called for sentences of imprisonment. Mr Croucher argued that those epithets were not appropriate to describe the offences. Mr McArdle submitted that the sentencing judge had regard to all the mitigating factors: no prior convictions, the guilty plea, the good work record and the personal difficulties being experienced by the appellant.
His Honour was obviously correct in imposing more severe sentences on the co-offenders, for they had significant prior convictions and their roles in the aggravated burglary and assault were more serious than that of the appellant. But that is not to say that the appellant's role was not serious. It was serious, and his plea of guilty was an admission of complicity in both the aggravated burglary and the assault. There is nothing in the sentencing remarks to support the argument that the sentencing judge was not conscious of the appellant's plea of guilty, past good record, remorse and personal circumstances. The sentence does not reflect that inadequate consideration was given to these matters. The imposition of a custodial sentence was within the range of sentences available to the sentencing judge, for he was dealing with nasty types of criminal activity where several men, with premeditation, entered premises as burglars and injured the innocent occupant. The appellant stole a till containing money: a crime for which he alone was responsible.
Cumulation orders were not inappropriate, in my opinion, to arrive at the total sentence of 27 months. The three offences were separate criminal actions notwithstanding that they took place on the same date and in the same premises. Mr Croucher argued that the two orders for cumulation were outside what was reasonable because the injury overlapped the burglary. In my view the consequences of the burglary contemplated an assault, but the assault was a separate and serious offence to which the applicant was complicit. It follows that cumulation was open to the judge. Similar considerations apply to the theft count, where a cumulation order of six months was made by the sentencing judge.
At the end of the day this Court must consider the total sentence and the minimum term in determining whether a ground of manifest excess is made out. I do not consider the head sentence was outside the range open to the judge, and the minimum term could mean that the applicant will serve a relatively short term in custody. The period involved in the minimum term was not unreasonable, in my view.
The sentencing judge had to exercise a discretion whether the sentence should be suspended, wholly or in part. Nothing appears in the sentencing remarks to indicate error in the exercise of that discretion not to suspend any part of the sentence. The judge was entitled, in my view, to find that an immediate custodial sentence was necessary having regard to the nature of the offences and all the relevant circumstances.
I do not consider the total sentence or the individual sentences were manifestly excessive. I would dismiss the appeal. Accordingly a report of Mr Hodgson will not be admitted. It could be used if the Court had re-sentenced the appellant.
WINNEKE, P.:
I agree. It must be remembered that this Court is a court of review. It has no licence nor power to interfere with sentences imposed by a sentencing judge unless error is shown to have infected the judge's discretion or it appears that error can be inferred by the magnitude of the sentences imposed. The mere fact that I or any other member of this Court might have exercised the sentencing discretion differently from the sentencing judge is no warrant for this Court interfering with his sentences in the absence of demonstrated error. I agree with O'Bryan, A.J.A. that no such error has been, or can be, demonstrated. It is not disputed that the offences were of such gravity that the only appropriate sentence was one of imprisonment. In my view the sentences imposed by his Honour were within the range available to him, and his orders for cumulation, the non-parole period fixed and his discretion not to suspend the sentences were appropriate exercises of his discretionary powers in the circumstances of this case.
I too would dismiss the appeal and would also refuse to entertain the affidavit filed.
BATT, J.A.:
I agree with both judgments which have been delivered.
WINNEKE, P.:
The formal order of the Court will be that the appeal against sentence is dismissed. The Court notes that the affidavit tendered to the Court will not be accepted or acted upon.
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