R v Thach
[2003] VSCA 47
•10 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 167 of 2002
| THE QUEEN |
| v. |
| THANH NGOC THACH |
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JUDGES: | CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 April 2003 | |
DATE OF JUDGMENT: | 10 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 47 | 1st Revision - 11 June 2003 |
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Criminal law – Sentencing – Armed robbery – Parity – Offenders aged 17 and 15. Appellant sentenced to four years' imprisonment with non-parole period of three years – Co-offender sentenced to 9 months’ detention – Difficulty of comparing Children’s Court sentence with sentence of adult imprisonment – Manifest inadequacy of sentence imposed on co-offender – Sentence nevertheless appellably disparate – Youth, prospects of rehabilitation and desirability of period of supervision – Appeal allowed - Non-parole period reduced to two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr P.J. Haag | Mulcahy, Mendelson & Round |
CALLAWAY, J.A.:
The appellant, who is now aged 18 and was that age at the time of sentence, pleaded guilty in the County Court to one count of armed robbery, for which the maximum custodial penalty is 25 years' imprisonment. He admitted six findings of guilt, for trafficking in heroin, possessing money being the proceeds of crime and using heroin, in the Children’s Court at Dandenong in April 2000 and two previous convictions, for trafficking in heroin and possession of cannabis, in that court in August 2000. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 27th June 2002 to four years' imprisonment with a non-parole period of three years.
O’Bryan, A.J.A. granted leave to appeal on 22nd November 2002. In doing so, his Honour expressed the view that grounds 2 and 8 of nine proposed grounds of appeal were linked and reasonably arguable. That expression of opinion led to counsel’s arguing only those grounds and ground 9 and ground 2 only as a particular of ground 8. Grounds 2, 8 and 9 read:
“2.The learned sentencing judge accepted that rehabilitation was paramount to the applicant’s sentence. However, the learned sentencing judge would not consider a youth training centre sentence as the applicant had already spent time in an adult prison, although he has until now been in the youth section of Port Phillip. The applicant is 17 years old.
8.The learned sentencing judge failed to have sufficient regard to parity when sentencing the applicant.
9.The learned sentencing judge erred in fixing only a twelve-month gap between the head sentence and the non-parole period.”
As I have previously mentioned, the appellant is 18 years old, but he was 17 at the time of the offence. Doubtless that explains the last sentence of ground 2, but ground 2 is deficient in another respect too. When the possibility of detention in a youth training centre was raised on the plea, his Honour gave not one but three reasons for considering that that would not be an appropriate disposition. The first was that the appellant had already spent 215 days in an adult prison. The second was that he had already served a youth training centre sentence. The third was the seriousness of the kind of offence that he had committed.
Because of its relevance to counsel’s submissions, I should add that the plea then turned to the non-parole period that might be fixed in connection with a sentence of imprisonment. The judge observed that parole would meet counsel’s suggestion, earlier made, about supervision and counsel reiterated his submission that the appellant needed supervision.
Before turning to counsel’s submissions on the appeal I shall adopt the judge’s description of the offence and his summary of the records of interview. There is nothing to be gained in the circumstances of this case by paraphrasing them. Addressing the appellant, his Honour said:
“At about 9.30 p.m. on 22 November last year, your victim in this matter, Ms Hayley Cross, a 33 year old single woman, was driving her 1997 Honda coupe in a southerly direction along the Nepean Highway at Aspendale when you and your co-offender, [T], decided to pursue her and steal her car. [T], who was 15 at the time, was driving, and you were his front seat passenger. After the victim turned her car into the street where she was then living, you followed her and, when she turned into her house, [T] continued on down the street, did a U-turn and came back to the vicinity of her home, where he parked the vehicle and turned the lights off. He then alighted from the vehicle with gloves on his hands and he carried with him a loaded 22 calibre pistol. After alighting from her vehicle, the victim wheeled her rubbish bin out to the front of the house and when she did so [T] walked up towards her and, after asking her what street he was in, produced the pistol and held it about 10 centimetres from Ms Cross’s forehead, grabbed her by the right wrist and said, ‘This is a robbery’. Ms Cross screamed in fear and dropped her mobile phone, which she had been trying to dial after she suspected that [T’s] intentions were to cause her some sort of harm. She threw her wallet on to the driveway and [T] told her to, ‘Shut the fuck up and stop screaming; I’m going to fucking shoot you’. Ms Cross replied that her ‘wallet and phone are there’ and ‘what do you want?’ [T] said, ‘I want the car’. He then forced her back down the driveway towards her house to where the car was parked, with the pistol still pointed at her head. He tried to force her to the ground by pushing down on her right arm and demanded the keys to the car. Ms Cross told him that the keys were on the grass so he dragged her over to the keys and made her pick them up. During this time he was telling her that he was going to kill her and she replied, ‘There’s the keys, take the car, take it’. He took the keys from her, pushed her away with the pistol still pointing at her, and told her not to move or scream or he would shoot her. He then let go and, after again threatening to kill her if she moved or screamed, he got into the car, whereupon Ms Cross ran across the road screaming, ‘Call the police. He’s got a gun; he’s got a gun’. [T] then reversed the vehicle down the driveway but had to move out of the way of the rubbish bin that Ms Cross had left in the centre of the drive. He attempted to reverse the vehicle over the low brick fence in front of the house but ended up with the rear wheels hanging in space and, despite futile attempts to move the car by revving it, he abandoned the vehicle and ran out to the street where you were waiting in his car. He then jumped into the rear seat behind you and you drove off up to the Nepean Highway. The car was seen by the police soon after in Bonbeach, during which time [T] had taken over the wheel. The vehicle was intercepted by the police and the two of you were arrested at gun point. The loaded 22 pistol was found in the front seat of the car, together with some four rounds of ammunition, a large roll of duct tape, gloves, black stockings and a screwdriver and socket set. When interviewed by the police, [T] had admitted he purchased the pistol some four days previously and had tested it to see if it was in working order and he said that during the commission of this offence his finger was on the trigger and that he would have shot the victim if she had come at him with any form of a weapon. When interviewed by the police, you tried to minimise your role in this offence and otherwise gave a ‘no comment’ response to questions put to you by the police.”
It will also be as well at this stage to say something more about the appellant’s previous court appearances and to refer to the sentence imposed on the co-offender. At his first appearance in the Children’s Court at Dandenong in April 2000 the appellant was sentenced to be released on a youth supervision order for a period of 12 months, but he breached that order. When he appeared again in August 2000 the order was cancelled and he was sentenced in lieu to terms of detention in a youth training centre which, with directions for cumulation and concurrency, made a total effective sentence of 18 months. Sentences of detention were also imposed in relation to the two convictions he sustained that day, but they were directed to be served concurrently. The appellant was released on parole after serving nine months’ detention. I am grateful to Mr Sonnet for having taken the initiative to discover the true position, which is not reflected on the further presentment.
The co-offender pleaded guilty in the Children’s Court to charges of armed robbery, reckless conduct endangering life, theft of a motor vehicle, theft and possession of a handgun without a licence. He was convicted on each charge and sentenced to nine months’ detention in a youth training centre for the armed robbery and reckless conduct endangering life and to four months’ detention for the other offences, making a total effective sentence of nine months’ detention in a youth training centre. He was released after five months. He admitted one previous appearance in the Children’s Court on charges of using, possessing and trafficking in heroin, possessing money being the proceeds of crime and failing to answer bail.
Mr Haag argued ground 8 first, submitting that the difference between the sentence imposed on the co-offender and the sentence imposed on the appellant was so great as to give rise to a justifiable sense of grievance. He developed that submission by referring to the relative culpability of the two offenders, their ages and the very considerable difference between a sentence of four years' imprisonment with a non-parole period of three years and a sentence of nine months’ detention.
The difference in the offenders’ roles will already be apparent from the description of the offence that I have quoted. It was apparent, counsel said, that the co-offender was the leader and by far the more active participant. Moreover, although both young men decided to engage in a criminal enterprise, it was not the appellant who initiated the project, nor was it the appellant who provided the car, taken from the co-offender’s parents, or the weapon that was used. There was, counsel continued, no finding that the appellant knew that the weapon was loaded, still less any finding as to his state of knowledge concerning the co-offender’s intention to shoot the victim if she tried to defend herself with a weapon. It was acknowledged that the appellant drove the getaway car and, of course, that he was complicit in the offence, as shown by the facts and admitted by his plea of guilty.
Turning to the offenders’ ages, Mr Haag pointed out that the appellant fell just outside the jurisdiction of the Children’s Court, being 17 years and 5 months old. They were both, in truth, youthful offenders, and the nearness of their ages was entitled, so the submission proceeded, to much greater weight than the learned judge had evidently given it. In support of that submission counsel reminded us that, in the course of his sentencing remarks, his Honour had said, “It has been argued that notwithstanding you are three years older than [the co-offender] and have more prior convictions … “. We were invited to infer that his Honour mistakenly thought that the difference was three years, rather than 25 months. I doubt that that is so. At the time of sentence the appellant was 18 and the co-offender 15. That is all, in my opinion, that the judge intended to convey by those words. That is not to say that the nearness of their ages was not an important factor to be taken into account, for the difference in severity between the disposition adopted in the case of the appellant and that adopted in the Children’s Court is self-evident.
Counsel argued that the three reasons the judge gave for considering a youth training sentence inappropriate should not have diverted his Honour from considering that course. Little need be said about this branch of the submission. We are not asked to consider a youth training centre disposition. I can well understand the reasons why the judge thought that such a disposition might not be appropriate.
Mindful of the difficulty of comparing Children’s Court sentences with sentences imposed on adult offenders, Mr Haag referred, among other material, to R. v. Andrews[1], R. v. Kraja[2] and R. v. Mapolar[3].
[1]Unreported, Court of Criminal Appeal, 10th December 1979.
[2]Unreported, Court of Criminal Appeal, 7th March 1984.
[3]Unreported, Court of Criminal Appeal, 28th May 1993.
Turning to ground 9, he submitted that the appellant’s youth, his early plea of guilty, the remorse indicated by that plea, the support given to him by his large and law-abiding family, his employment prospects and his efforts towards reformation whilst on remand should have resulted in a greater gap between the head sentence and the non-parole period. Although the importance of supervision was a matter that had been acknowledged in the course of the plea, no reasons were given for the ultimate disposition adopted. It seemed not, as I understood counsel’s submission to continue, to reflect the need for supervision and the circumstances that pointed to a shorter non-parole period than might commonly have been fixed in the case of a sentence of four years' imprisonment.
Mr McArdle reminded us that the question of parity had been raised in the course of the plea and was dealt with explicitly in the judge’s sentencing remarks. The co-offender was “a child” and the appellant was “a young offender”. They were subject to different sentencing regimes. The difference in ages was relevant, too, to such matters as culpability and the selection of an appropriate sentence. The appellant’s findings of guilt and previous convictions were, counsel said, a little more significant than the co-offender’s. Importantly, although his Honour had considered the Children’s Court sentence to be manifestly inadequate, he had not disregarded it but had expressly taken it into account. Mr McArdle conceded that the non-parole period was, in a sense, unexpected, having regard to the appellant’s prospects of rehabilitation, his youth and the issue of supervision that had been canvassed on the plea. A judge is not ordinarily obliged to give reasons for selecting a non-parole period, but there were no reasons in this case where the sentence might be thought not to have reflected those matters.
I agree with Mr McArdle that the learned judge faced a difficult sentencing exercise. Ordinarily I should myself attach little weight to a sentence of the kind imposed on the co-offender in the Children’s Court. In the first place, it is a different sentencing regime and different, and often incommensurable, factors apply[4]. Secondly, the sentence imposed on the co-offender must either have been based on such special facts as not to afford a benchmark or have been manifestly inadequate. It appeared to be common ground at the Bar table that the latter was the correct description. If so, it was to be taken into account and given such weight as might be appropriate[5].
[4]See, for example, Fox & Freiberg, Sentencing, 2nd ed. at para.3.1010.
[5]See R. v. Wilson (2000) 116 A.Crim.R. 90 and the cases that Chernov, J.A. there discussed.
It follows that his Honour did not misdirect himself in his approach to parity,
but I am, with respect, persuaded that the appellant is entitled to feel a justified sense of grievance. Prominent among my reasons are, first, that there was only a difference of 25 months in age between the offenders; secondly, that, although the appellant was complicit in the crime, he was not the initiator or the leader and played a much less active role; and, thirdly, that, whilst a considerable difference in sentencing disposition was to be expected, a sentence of four years' imprisonment with a non-parole period of three years is very much more severe than a sentence of nine months’ detention in a youth training centre. Parity would not, however, induce me to reduce the head sentence. In saying that, I do not overlook the need for that sentence to be determined on the footing that every day of it may have to be served, but I consider the head sentence appropriate, having regard to the seriousness of the offence in which the appellant participated and sentencing objectives including just punishment and general deterrence. The appellant was and is being sentenced as an adult and two years’ difference at the ages of 17 and 15 was significant in terms of culpability.
I would not uphold ground 9 as such, but parity and the youth of the appellant at the time of sentence would induce me to extend leniency in the non-parole period. I have in mind the mitigatory factors to which Mr Haag referred and the consideration that more than twelve months’ supervision would be an advantage in this case - of advantage not only to the appellant but to the public, whose interest is primarily served by eligibility for parole.[6] I propose, therefore, that ground 8 be upheld and the appeal be allowed by reducing the non-parole period to two years.
BATT, J.A.:
[6]R. v. Krasnov and Schlakht (1995) 82 A.Crim.R. 92 at 99.
I agree.
CUMMINS, A.J.A.:
I also agree.
CALLAWAY, J.A.:
The orders of the Court will be as follows:
The appeal is allowed in part.
The non-parole period is set aside. In lieu thereof a non-parole period of two years is fixed.
The sentence imposed below is otherwise confirmed.
It is declared that the period of 503 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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