R v Ulla

[2004] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.223 of 2003

THE QUEEN

v.

ANTHONY ULLA

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 130

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Criminal law – Sentencing - Armed robbery – Handling stolen goods – Attempt to obtain property by deception - Procedural fairness – Sentencing judge referring in sentencing remarks to earlier remarks of sentencing judges and to evidence from three previous appearances – Parties not aware of content of that material or of judge’s intention to refer to it – Sentences quashed – Re-sentencing – Youthful offender – Intellectual disability – Large number of prior convictions for relevant offences – Appellant on parole at time of offences – Appellant in protective custody – Crimes Act 1958, ss. 75A(1), 88(1), 321M - Sentencing Act 1991, s.16(3B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. D. Dann	Michael Gleeson & Co.

BATT, J.A.:

1. I agree that, for the reasons given by Eames, J.A., this appeal must be allowed and the appellant re-sentenced. When allowance is made for the operation of s.16(3B) of the Sentencing Act 1991 in the light of the now known cancellation of the appellant’s parole order as well as for the other considerations discussed by Eames, J.A., I also agree that the appellant should be re-sentenced as proposed by his Honour.

VINCENT, J.A.:

1. I agree that this appeal should be allowed and that the appellant be re-sentenced as proposed by Eames, J.A.  I do so for the reasons advanced by Eames, J.A. in his judgment.

EAMES, J.A.:

1. This is an appeal against sentence brought pursuant to leave granted by a judge of the Court on 16 April 2004.  On 30 July 2003 the appellant pleaded guilty in the County Court and was sentenced as follows:

Count 1:Handling stolen goods, contrary to s.88(1) of the Crimes Act 1958, which carried a maximum sentence of 15 years’ imprisonment. The appellant was sentenced to two years’ imprisonment;

Counts 2 & 3: Armed robbery, contrary to s.75A(1), which carried a maximum penalty of 25 years’ imprisonment. The appellant was sentenced to four years’ imprisonment on each count;

Count 4:Attempt to obtain property by deception contrary to s.321M, which carried a maximum of five years’ imprisonment. The appellant was sentenced to one year’s imprisonment.

1. The learned sentencing judge ordered that one year of the sentence on count 1, two years of the sentence on count 3 and three months of the sentence on count 4 were to be served cumulatively upon the sentence imposed on count 2.  That produced a total effective sentence of seven years and three months.  His Honour fixed a non-parole period of five years and declared that the appellant had spent 260 days in custody.  His Honour further ordered that the period of imprisonment was to be served cumulatively upon any period of imprisonment required to be served by the applicant by virtue of any order by the Parole Board cancelling his parole[1]. 

   [1]By virtue of s.16(3B) of the Sentencing Act the sentence imposed by his Honour would in any event have been cumulative upon any period served for breach of parole but his Honour was no doubt ensuring that it was understood that he had rejected the application contending that there were exceptional circumstances in this case.

1. There are five grounds of appeal which complain that the learned sentencing judge:

1.Failed to give sufficient weight to the applicant’s age and intellectual disability;

2.Failed to give sufficient weight to the accepted evidence that the applicant will spend the majority of his sentence in protective custody;

3.Failed to advise his counsel of his use of materials from previous sentencing judges in dealing with this matter and in doing so denied the applicant procedural fairness;

4.Imposed orders for cumulation which were excessive and resulted in a total effective sentence that offends totality and is crushing, particularly for a youth of 22 with an intellectual disability;

5.Imposed a sentence which is manifestly excessive.

1. The facts from which the counts arose may be briefly described.  As to count 1 at about 8 p.m. on Wednesday, 13 November 2002 the home next-door to that of the mother of the appellant was broken into and the occupant discovered that clothing and electronic equipment had been stolen.  The appellant resided with his mother at that time.  On 15 November 2002 police executed a search warrant at his mother’s house.  Having been earlier alerted to thefts from her neighbour’s house the appellant’s mother invited the neighbour to inspect items found in the appellant’s room.  It was then discovered that property belonging to the neighbour was in the appellant’s bedroom.

1. As to count 2, at about 5.05 p.m. on 14 November 2002 an 18 year old youth, Ricky Thomas, got off the Werribee-bound train at Laverton and was approached by the appellant who asked to borrow Thomas’s mobile telephone.  Thomas handed the phone to him and the appellant then asked for change of $20.  He then bumped Thomas into a fence and as he did so pulled out a pocket knife and demanded money from Thomas.  Thomas tried to run away but slipped over and was caught by the appellant who then grabbed him around the neck, held the knife to his throat sufficiently close that Thomas felt the blade, and shouted at Thomas “Give me your money or I’ll stab you”.  Thomas had just been paid and produced his wallet and handed $240[2] to the appellant who said he was giving him five seconds to run away.  Thomas ran home, having left his mobile telephone and wallet with the appellant.  

   [2]The evidence summary filed on the appeal asserts that $270 was stolen but his Honour found the sum to be $240 and that was the sum which was alleged by the Crown before his Honour.

1. As to count 3, at about 3.20 p.m. on Tuesday, 19 November 2002, David Robinson left the train at Laverton and he was approached by the appellant who asked him for a cigarette.  Robinson gave him two cigarettes and departed.  The appellant who was in the company of a female got into an old car which had no registration plate and drove past Robinson then pulled up and left the vehicle.  He approached Robinson and again asked for a cigarette.  Robinson handed more cigarettes to the appellant who then grabbed Robinson around the neck and pulled his hair backwards.  He produced a 20cm. pocket knife and screamed at Robinson telling him to get to his knees and that he “would cut his fucking throat if that wasn’t done”.  Robinson could feel the knife against his throat and got to his knees.  The appellant demanded money and Robinson said he did not have any.  The appellant then took cigarettes out of Robinson’s shirt and also took a mobile telephone and wallet.  He then got into the motor vehicle and departed. 

1. Count 4 is related to the robbery of David Robinson.  Having obtained Robinson’s wallet the appellant found a Commonwealth Bank ATM card which he used on four occasions on 19 November 2002 in unsuccessful attempts to obtain funds from an ATM machine.  

1. The appellant was aged 21 years at the time of the offences.  He admitted to an extraordinary number of prior convictions which commenced in July 1996 and by March 2002 had totalled 173.  Those convictions included five counts of failing to answer bail;  three counts of stating a false name and address;  one count of escaping from a youth training centre;  two counts of using a drug of dependence;  two counts of possession of a drug of dependence;  a count of using a drug of dependence;  four counts of assault;  two counts of criminal damage;  one count of threatening to destroy or damage property;  one count of being found on premises without lawful excuse;  19 counts of theft;  seven counts of robbery;  two counts of armed robbery;  one count of burglary;  two counts of going equipped to steal;  one count of receiving property from the proceeds of crime;  one count of possession of property being the proceeds of crime;  three counts of obtaining property by deception;  two counts of handling stolen goods;  two counts of being found in possession of goods suspected of being stolen;  99 counts of defrauding a phone carrier of its fees;  one count of attempted theft;  one count of attempted robbery;  one count of attempted armed robbery;  one count of an attempt to obtain property by deception;  one count of using a regulated weapon;  four counts of possession of a regulated weapon;  one count of possession of a dangerous article;  and one count of possession of a pistol without a licence. 

1. Having listed those convictions the learned sentencing judge therefore noted in respect of the offences on which he was then to be sentenced that the appellant had two prior convictions of a similar character to count 1;  two prior convictions for armed robbery, alike to counts 2 and 3, and one prior conviction for attempting to obtain property by deception which is the same charge as for count 4. 

1. On the appeal counsel for the appellant argued only ground 3.

1. Of the multitude of his prior convictions three court appearances, all in the County Court, posed particular difficulty to the appellant in seeking leniency from the judge on this occasion.  On 30 April 1999 Judge Barnett had sentenced him to a total effective sentence of 12 months imprisonment with a 4 month non-parole period, for offences including attempted armed robbery, a drug offence, weapons offences and a count of handling stolen goods.  On 15 December 2000 Judge Davey sentenced him to a total effective sentence of 15 months imprisonment with a non-parole period of 9 months on one count of armed robbery, one of attempted armed robbery and a count of theft.  On 1 March 2002 Judge Davey again sentenced the appellant, this time to 2 years imprisonment with 12 months non-parole period, on one count of armed robbery.  In the same time frame as those appearances he had, in addition, also appeared twice in the Magistrates’ Court for offences of dishonesty and violence.  On all three prior occasions concerning offences dealt with in the County Court, the appellant had been armed with a knife.  The prior criminal history was recognised by all during the plea as being critical to the sentencing disposition on the present counts.

1. In the course of submissions on sentence the prosecutor addressed the learned sentencing judge as to the circumstances of the offences and submitted that it was a case calling for a sentence directed to general deterrence, as to which matter the appellant’s prior convictions were said to be very relevant.  It was submitted that the appellant had shown by his criminal record that he had “a continuing attitude of disobedience” and “a dangerous propensity” but the prosecutor added:

“I’m not saying, Your Honour, obviously that he be sentenced on those prior matters, he’s been dealt with for those, but Your Honour (I submit) that it ultimately limits his options here today.”

The prosecutor pointed out that these offences were committed approximately two-and-a-half months after being released on parole after his previous sentence for armed robbery. The prosecutor submitted that it was appropriate therefore that s.16(3B) be given full weight and that the sentences which would inevitably be imposed should be cumulative on any sentence to be served by virtue of his breach of parole.

1. Defence counsel tendered on the plea, amongst other material, a pre-sentence report which, so he told the judge, had been prepared for the appellant’s last appearance before the County Court, on 1 March 2002 when he was sentenced by Judge Davey to two years' imprisonment with a non-parole period of 12 months.  Counsel also tendered a report from CORE, dated 15 February 2002, which was a pre-sentence report also used for the last appearance before the County Court.  The CORE report highlighted the fact that the armed robbery offence for which he was then to be sentenced constituted a breach of parole, the offence having been committed eight days before the expiry of his parole on 3 September 2001.  The report also noted that the appellant had previously breached a youth parole order by an earlier episode of offending.  The report to the judge in 2002 concluded:

“Should Mr Ulla be sentenced to a term of imprisonment of three months or more for the current offence it is more than likely that the Board will cancel the already expired parole order.  Mr Ulla will then serve a parole period of three months cumulatively with the court-imposed term of imprisonment unless the Court is satisfied that there are exceptional circumstances.”

On the plea in the current case a report dated 25 July 2003 was tendered being a “Client Overview Report” from the Department of Human Services which dealt with the extent of the intellectual disability of the appellant. 

1. Although the appellant’s past offending, in particular offending whilst on parole, and the past sentences which had been imposed on him, and the nature of the offences for which they were imposed, were central to the case, neither the prosecutor nor defence counsel referred his Honour to the sentencing remarks of the County Court judges who sentenced him to imprisonment in 1999, 2000, and 2002.  Given that in each instance he had been sentenced for armed robberies and/or attempted armed robberies it was obvious that the sentencing remarks on those occasions might have been highly relevant to his Honour’s task.  He was given no assistance in that regard.

1. We were told that the sentencing remarks of the County Court judges on the past occasions would not, as a matter of course, have been available to the appellant’s solicitors, nor, probably, to the prosecutor.  Unless an appeal had been initiated on those occasions then, so we were told, a transcript of the sentencing remarks would not have been produced or been provided to the parties.  No doubt there are budget and other considerations which make it impractical to provide copies of all sentencing remarks delivered in such a busy court, but as this case demonstrates the practice of not providing copies of sentencing remarks, as a matter of course, can have unfortunate consequences which impact on the administration of justice. 

1. In the course of his own sentencing remarks his Honour made reference to the sentencing remarks of Judge Barnett on 30 April 1999 and of Judge Davey on both 15 December 2000 and 1 March 2002.  As his Honour made clear in his sentencing remarks he had sought out the files from those occasions in order to assist him in what, it was agreed before us, was an exceptionally difficult sentencing task.  It is clear that his Honour was simply endeavouring to gain a fuller understanding of the situation of the appellant than had been provided to him by what, I must say, were rather limited submissions on the plea.

1. Complaint is now made that by accessing and using the sentencing remarks and, it seems, the transcript of the earlier sentencing hearings his Honour denied procedural fairness to the appellant by not giving him notice that reference was proposed to be made to such material and thus providing an opportunity for the appellant, through his counsel, to respond to any matters in that material which the judge might treat as adverse to the interests of the appellant.  Counsel relied on R. v. Wise[3] and R. v. Tait and Bartley[4]. 

   [3][2000] 2 V.R. 287 at 294.

   [4](1979) 24 A.L.R. 473.

1. In Wise the offender had been released on a community based order and was returned to the County Court for breach of that order.  He then appeared before a different judge to the original sentencing judge.  Counsel for the offender advised the Court that he knew nothing about the original offences save what he had been told by his client and that neither he nor the prosecutor had the sentencing remarks of the original sentencing judge.  The judge who was performing the re-sentencing said that he, in fact, did have a copy of the original sentencing remarks but said those remarks were not available for consideration of the parties or their advisers, but were available only to judges.  He declined, therefore, to allow counsel to refer to them.  Nonetheless, upon re-sentencing the judge in his remarks referred to the original sentencing remarks, to the detriment of the offender.  The Court of Appeal held that there had been a denial of procedural fairness.  Ormiston, J.A. (with whom Brooking, J.A. and Chernov, J.A.) agreed held[5]:

“The critical matter here, therefore, is whether in fact procedural fairness was or was not afforded the applicant because the learned re-sentencing judge acted upon, and appeared to act upon, the basis of and in reliance on material not available to counsel for the present applicant (and indeed largely unknown to him).  It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the Court which is available to the judge and known not to be available to counsel:  R. v. Carlstrom[6].  As was emphasized by Kaye, J. in R. v. Licata and Regan[7], referred to an addendum to Carlstrom at 368, the withholding of material ‘is repugnant to basic concepts of fairness and justice’.”[8]

Ormiston, J.A. continued at [21]:

“Likewise a sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing judge in open court:  see R. v. Tait and Bartley.[9] If any relevant material is gathered or obtained from the judge from private sources or sources not available to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside:  ibid.”

[5]At [20].

[6][1977] V.R. 366 at 367.

[7]Unreported, Court of Criminal Appeal 28 February 1977.

[8]At 1.

[9](1979) 24 A.L.R. 473.

1. Mr Dann referred to passages in the judge’s sentencing remarks in which, so he submitted, the judge had used adversely to the interests of the appellant material which he had gleaned by his accessing of the files.  It needs be said, in the first place, that many of the references to such material were beneficial to the interests of the appellant, and highlighted the severe disadvantages he faced by virtue of his history and intellectual disability.  Secondly, I observe, insofar as matters adverse to the appellant’s interest emerged from the material to which his Honour had recourse, such adverse matters might, for the most part, have been inferred by the judge, in any event, from the material which was presented to him on the plea. 

1. It is unnecessary to examine the judge’s sentencing remarks in any detail so as to consider the use he made of the material from earlier hearings, because Mr Kayser, as counsel for the respondent, conceded that his Honour had used such material adversely to the interests of the appellant and further conceded that in those circumstances there had been sentencing error within the parameters discussed by Ormiston J.A in Wise.  Accordingly, the sentences must be set aside and the appellant be re-sentenced.  Having regard to the fact that if the matter was to be remitted to the County Court a complete re-hearing would be necessary, before another judge, both counsel accepted that the most efficient and appropriate course was for this court to re-sentence the appellant.  Counsel were content for us to do so on the basis of the submissions made and the evidence led and tendered before the learned sentencing judge and also using his Honour’s sentencing remarks, including his references to the material gleaned from the material of earlier hearings.  As to his Honour’s references to that material, counsel before us had full opportunity to make submissions, but the Court did not itself access the files or go behind his Honour’s published references to that material.

Re-sentencing

1. Although the sentence imposed by the judge must be set aside, I acknowledge the thoroughness of his analysis of the offending and personal history of the appellant and of the factors relevant to sentencing in this very difficult case.  In exercising my own sentencing discretion I have found his Honour’s analysis very helpful, as I did, too, his analysis of the relevant authorities. 

1. In the court below defence counsel, then appearing, referred his Honour to R. v. Tsiaras[10].  Counsel submitted that “given his level of cognitive ability the appellant was not an appropriate person to be sentenced on the basis of general deterrence”.

   [10][1996] 1 V.R. 398.

1. The submissions placed before his Honour with respect to R. v. Tsiaras were queried by his Honour, because Tsiaras is a case concerned with a serious psychiatric illness.  He noted that this appellant did not have a psychiatric illness.  Counsel submitted that Tsiaras was nonetheless relevant and cited a number of authorities for the proposition that the appellant’s intellectual disability was to be treated as a circumstance which required that general deterrence be sensibly moderated.[11]  The prosecutor agreed that Tsiaras applied, but only to establish that general deterrence must be sensibly modified. 

   [11]Counsel referred to R. v. Clark [1996] 2 V.R. 520; R. v. Richards and Gregory [1998] 2 V.R. 1; R. v. Yaldiz [1998] 2 V.R. 376; R. v. Williams [2000] VSCA 174.

1. In Tsiaras the Court of Appeal stated the sentencing factors which had particular application in a case of an offender with serious psychiatric illness, as follows:

“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways.  First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility.  Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.  Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  The illness may have supervened since that time.  Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”[12]

[12]At 400.

1. As is apparent from his reasons, his Honour did his own legal research after reserving to consider sentence, and in his sentencing remarks he identified a number of additional authorities which were directly relevant, namely, R. v. Roadley[13];  R. v. Champion[14];  R. v. Bux[15].  His Honour concluded that general deterrence was not eliminated in this case, but was to be sensibly moderated.  It is not necessary for me to elaborate on the relevant law concerning intellectual disability as a sentencing factor.  In R. v. Bux I discussed the principles in some detail and held[16]:

“Where an offender suffers a significant intellectual disability the principle of general deterrence is not eliminated altogether, but must be sensibly moderated.[17]  Principles of general and specific deterrence cannot be given the emphasis that they might otherwise have in sentencing an offender.  The extent of the amelioration of the factors of general and specific deterrence may depend upon a range of matters, most importantly the extent of the intellectual disability.  In R. v. Champion[18] Kirby, P., with whom the other members of the Court agreed, considered the decision of the Court of Criminal Appeal in R. v. Letteri[19].  In that case Badgery-Parker, J., with whom Gleeson, C.J. and Sheller, J.A. agreed, had held that less weight should be given to general deterrence in such a case, and that in an extreme case a severe intellectual handicap might, indeed, mean that general deterrence was totally outweighed by other considerations.”

[13](1990) 51 A.Crim.R. 336 at 343.

[14](1992) 64 A.Crim.R. 244 at 255.

[15][2002] VSCA 126.

[16]At [33].

[17]R. v. Champion (1992) 64 A.Crim.R. 244, at 254-255, per Kirby, P.

[18]Ibid, at 254-255.

[19]Unreported, Court of Criminal Appeal, New South Wales, 18 March 1992.

1. I later added:[20]

“In R. v. Roadley[21] this Court held that “little weight” should be given to general deterrence in such cases.  In that case the offender had minimal appreciation of the consequences of his behaviour and limited (possibly non-existent) impulse control.  He had the mental age of a five or six year old child.  In R. v. Williams[22] Buchanan, J.A., with whom Ormiston, J.A. and Chernov, J.A. agreed, followed Champion and Roadley.  His Honour concluded that the sentencing considerations set out in R. v. Tsiaras could be applied in Williams’ case (although it was a case of intellectual disability rather than psychiatric illness[23]), and concluded that several, but not all, of the considerations identified in the passage of the reasons from Tsiaras . . . were applicable.  His Honour concluded that both general and specific deterrence had limited relevance in that case.”

[20]At [35].

[21](1990) 51 A.Crim.R. 336.

[22][2000] VSCA 174, at [10]-[12].

[23]In Roadley, at 343, the Court held that mental illness was to be equated with intellectual disablement for sentencing purposes, citing R. v. Anderson [1981] V.R. 155.

1. As I indicated in those passages, the extent to which the Tsiaras factors will have application to the case of an intellectually disabled offender will depend on a range of considerations, most importantly on the extent of the disability of the offender.  In the present case the appellant received a psychiatric assessment after an involuntary admission to Laurundel Psychiatric Hospital in 1997 after violent behaviour and threatened suicide.  A psychiatric report tendered to the judge from two psychiatrists reported that upon formal testing earlier in 1997 he was found to have an IQ of 61.  He was diagnosed as having borderline antisocial personality disorder and being opiate dependent.  A report dated 25 July 2003 from case manager Ms Dragana Johnstone of the Department of Human Services disclosed that in May 1997 he was assessed by a psychologist as functioning at a mild or moderate level of intellectual disability and he was granted a Disability Support Pension.  Ms Johnstone reported that he has moderately severe verbal specific amnesia, a result of solvent abuse.  He has limited numeracy and literacy skills.  The appellant was educated only to year 8 standard and has never been employed. 

1. The appellant has a very unfortunate history.  He came to Australia from the Phillipines in 1988 at age 7 years, he and his siblings arriving two years after their mother.  The siblings had different fathers, all of whom were violent towards the mother.  Upon his arrival in Australia the appellant’s education was limited, in part due to his disruptive conduct.  From 1994 to 1996, between ages of 13 and 15, he inhaled solvents to a significant extent, thereby suffering memory loss.  He commenced using heroin in 1995 and has overdosed several times and been hospitalised for that reason in 1996 and 2001, and was twice admitted to Laurundel as an involuntary patient in 1997 for suicidal and violent behaviour. 

1. The appellant had spent almost four of the six years before Ms Johnstone’s report of July 2003 was written, either as a prisoner serving a sentence or in youth detention or else on remand.  Although he often lived with his mother, he also spent time living on the streets, on railway stations, or with friends.

1. Mr Dann agreed that he could not contend in this case that general deterrence had no application.  Sensibly moderated it continued to apply as a factor, and so too, he acknowledged, did specific deterrence.  He accepted that the protection of the community also had to be a relevant factor.  Mr Dann submitted, however, that the learned sentencing judge had failed to moderate those factors to the extent that they should have been moderated and urged that in the exercise of our own discretion we gave those factors less weight than did his Honour.  Mr Dann conceded that the only sentence which could reasonably be imposed was one of imprisonment.

1. In Williams[24], Buchanan, J.A concluded that the first, third and fourth of the sentencing factors listed in the above passage of Tsiaras applied to the case.  In my opinion, however, the difficulties which the appellant faces due to his intellectual disability, albeit significant, are not as great as those discussed by the courts in Roadley, where the applicant functioned as a five or six year old, or in Williams, where the appellant, who had an IQ of 63, was described as having a grossly inadequate personality, and as socially inept and functioning only in an extremely child-like way.

   [24]At [11].

1. Quite apart from the difficulties presented by his intellectual disability, the appellant’s drug addition is also a major problem.  The appellant had entered methadone programs several times in the past in unsuccessful attempts to withdraw from heroin.  His attendance and compliance had been noted as poor.  However, upon his release on parole in August 2002, the appellant (prior to his arrest for the present offences) had completed a detoxification program for youth at the Western General Hospital.  The applicant’s case worker had reported as to that: “The commitment and adherence to that program has, however, been an exception to Mr Ulla’s general lack of compliance.”  A witness, Kevin Willis, the Prison Service Co-ordinator at Port Phillip Prison, gave evidence to his Honour and said, as to that attendance for detoxification, that that step was not pursuant to a parole condition and suggested that he had some motivation.  His Honour noted, “It seems to suggest to me that after he was released in August, he took it upon himself, for about the first time in his life, to address this problem successfully.” I respectfully agree with his Honour’s observation, and I agree that that is a matter to be weighed in the appellant’s favour.

1. It counts against the appellant, of course, that he has many times offended while on parole.  As to the present offences, the appellant was released on parole on 23 August 2002 and was returned to custody on 22 November 2002 upon his arrest.  The appellant’s parole with respect to the previous offence was cancelled on 3 September 2003, adding an extra 11 months and 30 days to the head sentence which we will now impose.  When he was sentenced below, on 8 August 2003, it was regarded as highly likely, but it was not certain, that the Parole Board would breach the appellant in that way. 

1. His Honour concluded that there were no exceptional circumstances in this case to override the effect of s.16(3B) of the Sentencing Act. Thus, the sentence imposed was to be served cumulatively with any sentence which arose by virtue of his being breached by the Parole Board. In his submissions on re-sentencing Mr Dann did not concede the absence of exceptional circumstances in this case, but could point only to the appellant’s intellectual disability and fact that he would serve his sentence in protective custody as constituting exceptional circumstances. In my opinion, that matter would not amount to an exceptional circumstance so as to overcome the effect of s.16(3B). The sentence I propose would therefore be served cumulatively upon the period to be served by virtue of breach of parole. Although s.16(3B) must be given effect, that does not mean, however, that the fact of there being such cumulation of sentences is irrelevant to the sentencing exercise.

1. Unlike the judge below, we know as a fact that the appellant, by virtue of the breach of parole, will be required to serve a sentence of 11 months and 30 days cumulatively with the sentence now imposed.  Mr Dann submitted that we ought, therefore, have regard to that fact in imposing sentence for the present offences, because the period of cumulation was relevant to the question of totality upon re-sentencing.  Mr Kayser accepted, for the purpose of this case, that it was appropriate for us to have regard to that period of cumulation when addressing the question of totality.  That concession was consistent with authority[25] and was appropriately made by Mr Kayser, and I will have regard to the combined period of imprisonment when considering totality.  In my opinion, some reduction of sentence will be appropriate on that account.

   [25]See R v Cutajar, unreported decision of Court of Appeal (Winneke, P., Charles, J.A., and Crockett, A.J.A.) delivered 20 July 1995, at pp.9-10;  R v Youil (1995) 80 A.Crim.R. 1, at p.3-4;  R v Berkelaar [2001] VSCA 143, at [22] per Buchanan, J.A.

1. One important, and additional, factor of mitigation, to which Mr Dann referred, is the fact that imprisonment will weigh more heavily on the appellant than it would upon most other prisoners serving a similar term.  There are a number of reasons why that will be so.  In the first place, the appellant has regularly come into conflict with other prisoners.  One explanation for that is that the appellant takes the drug Bupenorphine, a prescribed heroin substitute.  He takes the drug at a dosage level which is twice the maximum permissible for entry into a residential rehabilitation program to address his drug dependency.  More importantly, in the prison context, the appellant’s medication makes him a target for other prisoners who would wish to obtain that drug from him.  As a result of such incidents while in custody the appellant requested to be and was placed in protective custody and remains so.  The Prison Service Co-Ordinator of Port Phillip Prison, Mr Willis, gave evidence that there was a real threat against the appellant’s life.  If he wanted to be released from protective custody he would have to cease using Buprenorphine.  The fact that he will serve his sentence in that way is relevant to sentencing[26].

   [26]R. v. Rostrom [1996] V.R. 97;  R. v. ZMN [2002] 4 V.R. 537.

1. In his very helpful submissions on sentence, Mr Dann recognised that, as he put it, “these were very serious crimes committed whilst on parole by a man with an appalling record”.  His criminal history and intellectual disability suggests that any sentence is unlikely in itself to discourage the appellant from further offending, and there must also be limited value in sentencing him for purposes of general deterrence.  Protection of the community must be an important consideration, however.  These offences were indeed serious, and the judge rightly highlighted the victim impact statements, which demonstrated that the victims had continuing fear and anxiety, long after the immediate trauma had ceased.

1. I have regard to the pleas of guilty and to the matters put in mitigation by Mr Dann in his written outline and oral submissions, including to the extent appropriate, the youth of the appellant at the time of his offending[27].  In the final analysis, I have reached a sentence which is less than that fixed by the judge below.  I have so concluded in the exercise of my own discretion when weighing the relevant sentencing factors.  The weight given to different factors is a matter for judgement, on which opinions may differ.  We have had the benefit not only of the submissions and evidence which the judge considered but also of the elaboration of the relevant sentencing considerations by Mr Dann.

   [27]As to youth as a factor, see R v Mills [1998] 4 V.R. 235, at 241-242; R v Giles [1999] VSCA 208, at [20]; R v Bell [1999] VSCA 223, at [14]; R v Tran [2002] VSCA 52, at [12]-[15].

1. In my opinion, the appeal should be allowed, the sentence below be quashed, and the appellant be re-sentenced as follows:

Count 1: (Handling stolen goods):  One year’s imprisonment.

Count 2:  (Armed Robbery), 3 year’s imprisonment.

Count 3: (Armed Robbery), 3 year’s six months imprisonment

Count 4:  (Attempt to obtain property by deception), six month’s

imprisonment.

1. I would order that three months of the sentence on count 1, two years of the sentence on count 2 and three months of the sentence on count 4 be served cumulatively on the sentence imposed on count 3, producing a total effective sentence of six years.  I would direct that the appellant serve four years before being eligible for parole.

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