R v Taylor
[2002] VSCA 227
•10 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 254 of 2001
| THE QUEEN |
| v. |
| EVAN STUART TAYLOR |
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JUDGES: | PHILLIPS, C.J. and CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 December 2002 | |
DATE OF JUDGMENT: | 10 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 227 | |
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Criminal law - Sentencing - Causing serious injury recklessly - Armed robbery and other offences - Whether sufficient weight given to rehabilitation efforts whilst in custody - Total effective sentence of 7 years with non-parole period of 5 years - Not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
PHILLIPS, C.J.: I shall ask my brother Eames to deliver the first judgment in this matter.
EAMES, J.A.
The appellant appeals against sentences imposed by a judge of the County Court on two presentments which were dealt with together and upon which the appellant pleaded guilty on all counts. Leave to appeal was granted by a judge of this Court on 15 February 2002.
On presentment No. P00162527 the appellant was sentenced to six months' imprisonment on counts 1 and 2 which were counts of theft, carrying a maximum penalty of 10 years' imprisonment. On count 3 he was sentenced to three years and nine months' imprisonment for causing serious injury recklessly, which offence carried a maximum penalty of 15 years' imprisonment. On count 4 he was sentenced to 9 months' imprisonment for recklessly causing injury, which offence carried a maximum of 5 years' imprisonment, and on count 5 he was sentenced to 12 months' imprisonment for being a prohibited person possessing a firearm, which offence carried a maximum of 7 years' imprisonment or 600 penalty units.
On presentment No. P001601660 there was one count of armed robbery on which the appellant was sentenced to 3 years and 6 months' imprisonment. Armed robbery carries a maximum sentence of 25 years' imprisonment.
The learned sentencing judge ordered that 3 years of the sentence for armed robbery and 3 months of the sentence for theft on count 1 of the first presentment were to be served cumulatively to each other and cumulatively to the sentence imposed on count 3 of the first presentment, that being the count of recklessly causing serious injury. The total effective sentence was 7 years' imprisonment and his Honour fixed a non-parole period of 5 years' imprisonment and declared 263 days as having been already served. His Honour made orders under s.151 of the Firearms Act 1996 for forfeiture of the weapon and under s.464ZF(2) of the Crimes Act 1958 for blood and/or saliva samples to be taken.
The appellant appeals against sentence on two grounds, first, that the sentence was manifestly excessive in the circumstances of the case and, secondly, that the judge failed to give any or any sufficient weight to the rehabilitative efforts of the appellant. It was the second of those grounds to which Mr Thomas directed his submissions and in particular it was only with respect to the fixing of the non-parole period that he sought to identify error in the sentencing process. Mr Thomas properly conceded that a total effective sentence of 7 years with a non-parole period of 5 years could not be regarded as being out of the ordinary or to manifest error in the sentencing process for a man with the appellant's prior record and having regard to the seriousness of these offences. He submitted, however, that there were particular factors in this man's case which suggested that his prospects of rehabilitation were not given proper weight by the learned sentencing judge in fixing an appropriate non-parole period in the particular circumstances of this case and having regard to the particular situation of this individual.
The events out of which the charges arose may be briefly summarised. In late December 2000 the appellant commenced a de facto relationship with one Teresa Einsiedel and moved into her property in Pakenham where she lived with her four children. Einsiedel had recently terminated a relationship with another man from whom she received threatening telephone calls and text messages which the appellant told police caused him to obtain a sawn-off shotgun and a quantity of ammunition for the purposes, he said, of protection, so it would seem, both of himself and Einsiedel from the other man.
On 19 January 2001 the appellant was a passenger in Einsiedel's unregistered motor vehicle when they journeyed for the purpose of stealing some number plates from other cars, which number plates were to be installed on the unregistered car so as to disguise the fact of its lack of registration. The appellant removed number plates from two parked vehicles in Pakenham and they returned to the residence where one set of number plates was fitted to the car. Throughout this period the appellant had the shotgun with him on the floor of the car. The appellant had been drinking heavily during the day and told the police that he had had some twelve cans of beer and Einsiedel about two cans. After affixing the number plates Einsiedel drove the vehicle to the BP service station in Pakenham in order to get some cigarettes and petrol. Prior to reaching the BP service station the appellant told Einsiedel that he wanted to hold up that business but Einsiedel talked him out of that action. Einsiedel went into the service station store and whilst she was inside the appellant moved from the passenger seat to the driver's seat. Einsiedel did not have enough money to buy cigarettes and on returning in the direction of her car she approached a motor vehicle which was stationary at the front of the service station shop and near which there were about six occupants in or about that vehicle. She asked one of the occupants of the vehicle for a cigarette, which was refused, and a minor verbal altercation ensued. When Einsiedel returned to the car she told the appellant what had happened and the appellant said, "Yeah, I heard". The appellant then lifted the shotgun through the driver's window, held the shotgun over the roof of the car, pointed it in the direction of the other vehicle and from a distance of eight to ten metres discharged the shotgun at the other vehicle. When the gun was discharged Patrick Scanlan was standing alongside the driver's side of the motor vehicle eating a pie which he had just purchased. Also on the driver's side of the vehicle Michelle Hameeteman was just getting into the car through the rear passenger door. Twenty shotgun pellets struck Scanlan in the face, head, neck, upper chest and left shoulder. Three pellets struck Hameeteman and other pellets struck the car and the service station shop premises. Scanlan suffered severe blood loss and was conveyed to Dandenong Hospital. As he said in his victim impact statement, he feared that he would die.
Having discharged the shotgun the appellant drove the vehicle from the service station and said to Einsiedel, "I think I've killed him". The appellant drove to a nearby football ground car park and repeatedly said to Einsiedel, "I've done it now, haven't I?" The learned sentencing judge concluded that notwithstanding the fact that the appellant had consumed a large quantity of alcohol and Valium tablets on this day he knew what he had done at the time when he discharged the shotgun. That finding, in my opinion, was entirely open to his Honour. After remaining in the car park for about five minutes the appellant then decided that notwithstanding the seriousness of the incident which had just taken place he would commit an armed robbery against a service station and drove to the proximity of a Caltex service station at Baxter. It was now just after 3 a.m. on 20 January 2001. Einsiedel attempted to dissuade the appellant from committing this robbery but he proceeded to enter the store, produced the shotgun and demanded money, stealing six packs of cigarettes and $250 in cash. The manager said the appellant was nervous and was waving the gun around and moving it in a jabbing motion towards him. The manager was very shaken by the incident.
The learned sentencing judge said he was unable to make a finding one way or the other as to whether the shotgun was loaded at the time of the armed robbery. In my view, the appellant was very fortunate to avoid an adverse finding on this matter. Nonetheless the victim would be no less terrified whether the gun was loaded or not. This was a classic instance of an armed robbery on a "soft target" by an alcohol and drug-affected person, which conduct the courts have said, many times, merits severe punishment by way of general deterrence.
On behalf of the appellant Mr Thomas submitted that the circumstances in which the offences were committed demonstrated that the appellant's conduct was a product of his ingestion of alcohol and Valium.
In a report by a clinical psychologist, Mr Bernard Healey, dated 5 October 2001, Mr Healey recorded a history of chronic alcohol abuse by the appellant since his mid-teens and overuse of Valium, involving up to 12 tablets taken at a time, in the days prior to 19 January 2001. Some days prior to these events he had been prescribed Valium by a medical practitioner, who feared that the appellant could suffer an emotional or mental breakdown. That doctor concluded that he was very depressed but not suicidal. Mr Healey reported that after obtaining the Valium the appellant overused it, and he opined that Valium "when used in conjunction with alcohol, the substance resulted in detached (if not dissociated) behaviour." Mr Healey continued:
"His memory was patchy for events during that week and up to his remand on 23 January 2001. Indeed, acquisition of a gun in his case, with his disturbed, erratic functioning, was akin to placing dynamite in the hands of a child. In that context his unprecedented behaviour emerged; he acknowledged to police that he recognised himself on the video, perpetrating an armed robbery on a service station at Mornington, but had no real memory of the incident at a service station at Pakenham. He was shocked that he could have behaved as he did, and about which he remained self-reproachful."
I will discuss later Mr Healey's reference to "unprecedented behaviour".
The appellant is now aged 35 years and the learned sentencing judge accepted that the appellant had a history of chronic alcohol abuse and that that was compounded by the overuse of Valium in the days prior to these events. He accepted that the heavy use of these drugs produced what Mr Healey described as "detached behaviour". His Honour accepted, too, that the history of alcoholism was capable of producing alcoholic amnesia and that the appellant's recollection of the events of 20 January was very limited.
In my view, that history of drug misuse and alcohol abuse prior to these events in no way diminishes the seriousness of these offences. The relevance of the appellant's emotional state and drug ingestion at the time of these offences, in my opinion, is primarily with respect to questions of rehabilitation. It is submitted on behalf of the appellant that he now recognises the seriousness of his addictions and whilst in prison has undertaken many programs in that recognition of the need to come to grips with those problems.
The appellant admitted 37 previous convictions from ten court appearances. Seven of those appearances involved exceeding .05 and related charges of unlicensed driving or driving whilst disqualified. In 1994 he was convicted of recklessly causing serious injury and sentenced to two months' imprisonment. That offence was committed against the grandmother of his child after she refused to allow the child to accompany the appellant, by virtue of the fact that he was obviously affected by alcohol. The appellant lashed out at the woman with a broken glass.
In March 1995 the appellant was convicted of theft and fined in the Magistrates' Court at Frankston and in December 1996 at the same court he was convicted of a number of charges including burglary and theft and on those two counts he was sentenced to terms of imprisonment, one of those terms being three months.
The reference to the appellant's "unprecedented behaviour" in the report of Mr Healey was presumably a suggestion that only one of the prior appearances in court related to an offence of violence.
His Honour recognised that the appellant, notwithstanding his severe alcohol problem, had maintained a quite good employment history. His Honour accepted Mr Healey's assessment, upon intellectual testing of the appellant, that he had a full scale IQ of 89. Mr Thomas in his outline submitted that in fact the IQ level was 80, but the difference, it seems to me, is not of significance. His Honour accepted, too, that the appellant had undertaken programs within the prison environment in an endeavour to assist in his rehabilitation. He also accepted that the appellant had counselled others in the prison system in the nine months prior to sentencing. His Honour said that he had taken full account of the submissions made by counsel for the appellant.
Mr Healey reported that the appellant had applied himself diligently to programs in prison in an attempt to understand his problems and to assume greater responsibility for himself and others and said that these practical measures reflected the self-reproach that the appellant had as to his behaviour. In my view his Honour took into account the matters raised by Mr Healey and I do not find any error in the weight that he gave to them. The certificates which were tendered relating to the appellant's participation in prison rehabilitation programs were taken into account by his Honour, but whilst they reflected credit on the appellant for his participation they did not in my view necessitate that they be given greater weight than his Honour properly gave to them.
Mr Thomas submitted that for a man of his intellectual limitations and his history of alcoholism, the efforts by the appellant to rehabilitate himself should have been reflected in a lower non-parole period. The principles as to the fixing of a non-parole period are well established and do not require elaboration: see in particular DPP v. Bulfin[1] and Bugmy v. The Queen[2]. No breach of those principles by his Honour has been demonstrated, in my opinion.
[1](1998) 4 V.R. 114.
[2](1990) 169 C.L.R. 525.
These were exceptionally serious offences. The shooting of the two people was very serious indeed. One victim, Mr Scanlan, had thirteen pellets lodged in his face and skull, five in his neck, two in his upper chest, one in his upper arm and had one broken bottom tooth and four other teeth damaged. He was off work for two months and has had plastic surgery but only three of the shotgun pellets could be removed from his face, the remaining pellets not having been taken out of his body as surgeons apparently regarded that exercise to be too risky.
In my view the sentencing in this case portrays no error but a good deal of care on the part of the sentencing judge in considering all relevant issues that were placed before him. The sentences in my view were not manifestly excessive and no error has been disclosed in the sentencing process. In my view the appeal against sentence should be dismissed.
PHILLIPS, C.J.:
I agree. In spite of Mr Thomas's earnest efforts, I am of the opinion that the sentence imposed on the appellant was a lenient one. In particular the sentence on count 3, against a maximum penalty of 15 years' imprisonment, was a very merciful one indeed.
CHERNOV, J.A.:
I agree that the appeal should be dismissed for the reasons given by their Honours.
PHILLIPS, C.J.:
The order of the Court is that the appeal against sentence stands dismissed.
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