R v Tulloch
[2001] VSCA 111
•24 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 197 of 2000
| THE QUEEN |
| v. |
| SCOTT ANTHONY TULLOCH |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 July 2001 | |
DATE OF JUDGMENT: | 24 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 111 | |
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CRIMINAL LAW - Sentence - Armed robbery - Damaging property intentionally - 21 year-old offender with 204 previous convictions - Three years and three months with non-parole of two and a half not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. | Solicitor for Public Prosecutions |
| For the Applicant | Mr D.G. Just | Yianoulatos Lawyers |
BROOKING, J.A.: Phillips, J.A. will deliver the first judgment.
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence which comes before us pursuant to the concluding words of s.582 of the Crimes Act 1958, the applicant having elected to have us determine the application after it was refused by a single Judge of Appeal on 1 December last.
The applicant seeks leave to appeal against sentences imposed in the County Court on 25 October 1999 when, after pleading guilty, he was sentenced on one count of armed robbery and one count of damaging property intentionally: as to which see ss.75A(1) and 197(1) respectively of the Crimes Act. The maximum penalty for the first is 25 years' imprisonment and for the second, 10 years' imprisonment. Although only 21 years old at the time of the offending, the applicant admitted 204 previous convictions from 40 court appearances in a period extending over some nine years. Already on parole for other offences when he committed the crimes now in question, the applicant was sentenced on count 1 (armed robbery) to imprisonment for three years and on count 2 (causing damage) to imprisonment for three months, the two terms to be served cumulatively. The total effective sentence was thus of three years and three months' imprisonment, of which it was ordered that the applicant serve two years and six months before becoming eligible for parole. As it was not suggested that there were any "exceptional circumstances" within the meaning of s.16(3B) of the Sentencing Act 1991, the whole of that term of three years and three months fell to be served cumulatively upon the sentence that the applicant was by then serving in consequence of his parole having been cancelled on 17 April 1999 for other reasons (being breach of conditions for the performance of community work and drug testing).
The earlier offending should be further explained. In June 1997 the applicant had pleaded guilty in the County Court to one count of armed robbery and another count of causing injury recklessly. On the first count he was sentenced to be
imprisoned for three years and on the second count to be imprisoned for nine months, such sentences to be served concurrently. A non-parole period was fixed of only 18 months and in December 1998 the applicant was indeed back in the community, on parole. Meanwhile the applicant had been before the Magistrates' Court on 2 September 1997 when he was sentenced to terms of imprisonment for a number offences including assaulting a member of the police force and failing to appear in accordance with an undertaking of bail. He had also been before the County Court in November 1998 when he was convicted, after pleading not guilty, on a charge of armed robbery and for that he was sentenced to be imprisoned for 12 months, 8 months of which were to be served concurrently with the sentence he was then undergoing.
Despite all these sentences, it is the fact that the applicant was released from prison in December 1998, albeit on parole. On 10 April 1999 he then committed the offences to which he pleaded guilty in the County Court in October 1999, that is, the count of armed robbery and the other of causing damage intentionally. What had happened was this. At about 9 a.m. on Saturday 10 April, the victim drove down to Collingwood to pick up a young woman who, although not a family member, stood in a family relationship to him. He was to pick up the young woman and her mother. He parked his vehicle in the car park of some Housing Commission flats. The young woman walked down the stairs to make her way to the car and paused to wait for her mother, and for that purpose re-entered the foyer of the flats where she was approached by the applicant who asked, "Do you have a dollar?" The young woman said that she did not. She then met her mother, who had just got out of the lift. Together they walked outside and, as the two walked towards the victim's car, a woman not known to them but associated with the applicant said, "Excuse me, lady, do you have a dollar?" The young woman responded that her mother did not have any money on her, and the two of them continued walking to the car. The mother did not speak English. As the two women neared the car, the younger noticed the applicant had followed them out of the foyer area. Mother and daughter then got into the car but, before it was driven off, the applicant approached the driver's window and said, "You were being rude to my wife." The young woman replied that she had not been rude and that they did not have any money. As the victim did not want trouble, he decided to give the applicant one or two dollars and for that purpose looked into his change tray. But he could not find any money there and at that the applicant became angry and produced a knife, holding it in a threatening manner about one foot away from the victim's head. He said, "Give me the money, all money." The victim replied that he would give the applicant some money and told him to take it easy. The victim got his wallet out and took from it one $50 note, which he handed to the applicant. The applicant simply said, "More money." The victim refused, saying "Enough. I have to go." He then wound the window up, whereupon the applicant angrily hit the window with the knife and, moving towards the rear of the car, stabbed a tyre, causing a puncture. The young woman in the car used a mobile telephone to contact the police as the applicant walked back towards the flats.
According to the notice of application for leave to appeal against sentence which was filed on 1 August last, the applicant sought leave to appeal on the ground that the sentences imposed were manifestly excessive. Suffice it to say that there is nothing in this ground and no doubt that was the view taken by the judge who refused leave to appeal on 1 December 2000. Given the long criminal history of the applicant and given that these offences were committed while he was on parole for what might be supposed to have been like offences, it cannot be said that the sentence of three years' imprisonment for armed robbery was outside the range of sentences open to the sentencing judge in the proper exercise of the sentencing discretion, and the same can be said in relation to the sentence imposed on count 2. After all, when the applicant was sentenced in the County Court in June 1997 on one count of armed robbery and one count of causing injury recklessly, he was sentenced to be imprisoned for three years and nine months respectively and, it may be said, was then given the benefit of a relatively short non-parole period, in that that was fixed at only 18 months. If, as we were told, the applicant was released in December 1998, it was less than six months later when he committed these offences. Such leniency as was extended to him in June 1997 appears to have borne no fruit.
On that basis, it would follow that the application before us for leave to appeal against sentence should be dismissed, this Court now confirming the decision made on 1 December last by the single judge. On 22 June last, however, the Registrar of Criminal Appeals gave leave to the applicant to add two further grounds of appeal, which were as follows:
"Ground 2. The learned judge erred by giving insufficient weight to the youthfulness of the applicant in fixing sentence.
Ground 3. The learned judge erred by giving insufficient weight to the principle of totality."
I need not dilate upon these extra grounds: it seems to me that there is nothing in either of them. There is nothing to suggest that the judge gave insufficient weight to the youthfulness of the applicant: his Honour was apparently struck by the criminal record of a man so young. Nor, it may be said, is there anything to suggest that the learned judge gave insufficient weight to the principle of totality; his Honour's sentencing remarks make it quite plain that he was only too conscious of the fact that the sentences he was imposing on counts 1 and 2 would have to be served in addition to the balance of the term being served in consequence of the breach by the applicant of the conditions of his parole relating to the performance of community work and drug testing. Further, a proper application of the principle of totality does not, in all these circumstances, dictate lesser sentences than those imposed on this occasion in the County Court, even if one does have regard, as Mr Just submitted we should, to the time owing by the applicant on 17 April 1999 when his parole was cancelled for breach of condition. Thus the added grounds of appeal do not persuade me that the application for leave to appeal should be granted.
I would dismiss this application.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
I likewise agree.
BROOKING, J.A.:
The application is dismissed.
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