R v Zidlicky
[2001] VSCA 186
•18 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 117 of 2001
| THE QUEEN |
| v. |
| SIMON ANTON ZIDLICKY |
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JUDGES: | BROOKING, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 October 2001 | |
DATE OF JUDGMENT: | 18 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 186 | |
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Sentencing – Armed robbery – Imposition of Community Based Order – Warning by trial judge to impose imprisonment if CBO breached - Persistent breaches of CBO without acceptable reasons – Abuse of leniency - Imprisonment imposed as the last sentencing option.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.J. Ryan | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.E. Dean | Hallett West Johnston |
BROOKING, J.A.:
Chernov, J.A. will deliver the first judgment.
CHERNOV, J.A.:
This is an application for leave to appeal against the sentence imposed on the applicant by a judge of the County Court on 16 May 2001 when his Honour re-sentenced the applicant in respect of an armed robbery which was committed by him and another, Bradley James Collins ("Collins"), on 2 May 1997, the applicant then being aged 18. His Honour sentenced the applicant to a term of imprisonment of 8 months and suspended four months of it for a period of 12 months. The original sentence was imposed on the applicant on 16 September 1999 after he had pleaded guilty to the offence. On that occasion, his Honour sentenced the applicant to a community-based order ("CBO") which was to operate for two years. The applicant, however, breached the order, and on 4 August 2000 the same judge fined the applicant in respect of the breach but otherwise confirmed the conditions of the original order. Notwithstanding that he was thereby given another opportunity to avoid being sentenced to imprisonment in relation to the original offence, the applicant again breached conditions of the CBO and was dealt with in respect of those breaches on 16 May 2001. His Honour cancelled the CBO, fined the applicant in relation to that breach and imposed on him the sentence to which I have referred in relation to the offence of armed robbery. Having filed on 16 May 2001 a notice of application for leave to appeal against sentence, the applicant was granted bail by this Court on 25 May 2001 after he had served in prison nine days of his sentence.
The background circumstances leading to the sentencing were these. The robbery was committed at a milk bar, the proprietor of which was one Alex Wang. Mr Wang and his wife were then living at their residential premises at the rear of the milk bar. At approximately 7.20 p.m. on 2 May 1997 Mr Wang heard the buzzer of the front door and in order to answer it went from his residential area to the milk bar. Upon entering it he saw Collins, whose face was covered with some kind of cloth, standing inside the milk bar holding a large knife over his head with its blade
pointing towards Mr Wang. He shouted to Mr Wang "Stay where you are". Mr Wang, being in fear, complied with that instruction. He then noticed the applicant, who also had his face covered, standing on the customer side of the counter. Collins removed approximately $300 of cash from the till and he and the applicant then left the shop. The police were alerted and the victim impact statement of Mr Wang discloses that after the incident the milk bar was closed down.
It was not until approximately two years later that the applicant was interviewed by the police on 8 March 1999 in relation to the armed robbery. He readily admitted to having committed the offence and cooperated with the police. It was clear that he was not the principal offender but had accompanied Collins in order to "give him a hand". Collins apparently needed money to repay a drug related debt of approximately $1,000 and he conceived the idea of committing the robbery in order to gain money for the purpose of repaying the debt. It seems that the applicant's role was only to watch out for people who might turn up unexpectedly while it was Collins who threatened Mr Wang and grabbed the money. The learned sentencing judge accepted that the applicant was given only a small part of the stolen money.
As I have already said, on 16 September 1999 the learned sentencing judge imposed on the applicant a CBO pursuant to which he was to perform 300 hours of unpaid community work over a period of two years. Collins was sentenced to a CBO which required him to perform 400 hours of unpaid community work over a period of two years. He was also sentenced to a fine in respect of another count to which he pleaded guilty and which did not involve the applicant.
It is apparent from the sentencing remarks of his Honour that he regarded the offence and the offending as serious for reasons which he explained to the applicant. However, he took into account a number of factors of mitigation in favour of the applicant, including his youth, his stable home environment, his early plea of guilty, his lack of prior conviction and his ancillary role in the commission of the offence. His Honour made it clear to the applicant that if he failed to comply with the CBO he would be brought back before his Honour and there would be no option but to impose a sentence of imprisonment in relation to the offence. In this respect, his Honour said this:
"You should understand that if during the period of the community-based order, which will be two years, you are in breach of it in any way and I mean that in any way, and you come back before me there will really be no option but to impose sentences of imprisonment. So I hope you make a determined decision to comply with the orders that I will make, if you agree to it."
The terms of the order were read to the applicant and he agreed to abide by them. His Honour also told the applicant that if he had any difficulty in complying with the conditions he should contact the relevant officer and explain that in advance of the relevant date and not after the event. The judge said that it would be "no good trying to come with an excuse ... after the event".
As it happened, on 4 August 2000, the applicant was brought back before his Honour for having breached the CBO. There had been many failures on his part to comply with it. Some of the reasons given by him to the Public Correctional Enterprise ("CORE"), which supervised the CBO, were acceptable to it but others were not. According to the CORE report of 13 June 2000 the applicant had without acceptable reasons, failed to attend for supervision as directed on three occasions between 15 November 1999 and 4 April 2000. As to his failure to attend on 15 November 1999, the applicant claimed that he confused the appointment but this reason was not accepted by CORE. He failed to give any reasons for the other two occasions. On 8 February 2000 he received a final warning for four unacceptable absences from supervision appointments and community work. In addition, during this period the applicant failed to attend for community work as directed on three occasions, 30 November 1999, 14 December 1999 and 8 April 2000. As to the first two occasions, he told CORE that he had been unwell but no documentation was provided to support this. CORE did not accept that excuse. The applicant provided no reasons for his third failure to attend for community work. Furthermore, on 9 May 2000, instead of engaging in the work required of him at Clifford Park Scout Activity Centre, the applicant went to sleep in the bus that had transported him to the site without advising anyone of his whereabouts. The supervisor searched for him for two hours. He was subsequently removed from the place and warned about his behaviour.
Notwithstanding these lapses, the recommendation of the corrections officer was that he should be given another chance to complete the CBO. Having considered all the circumstances, on 4 August 2000, his Honour imposed a fine of $200 on the applicant for having breached the CBO but did not re-sentence him in respect of the original offence. On this occasion, his Honour said this:
"Just because you have got away with it once, do not think that you will get away with it again. These things are written down and they do accumulate, and I am prepared to take the course that your counsel has asked me to take today, but it is because you have not committed any other offences and because you have hopefully woken up to yourself a bit in the last few months. But you will not get the same leeway again, neither from the Department, nor from me. ... so I am prepared to take the course that your counsel has asked me to, but I hope that you do not misinterpret that as being an indication of laxity in the enforcement of the obligation that you have taken on."
A little over nine months later, on 16 May 2001, the applicant was brought before his Honour for having yet again breached the conditions of the CBO. Some of the breaches were due to his paid employment commitment and CORE found those excuses acceptable, but on other occasions, his absences were not adequately accounted for. In particular, the applicant failed, without acceptable reasons, to attend for supervision on 16 November 2000, 15 February 2001 and 14 March 2001. There was no contact on his part with CORE in relation to the first of these absences. He failed to attend on 15 February 2001 as I have mentioned, despite a letter having been sent to him by CORE advising him of the appointment. Again, no contact was made by him in relation to the appointment which he had to attend on 14 March 2001. Further, the applicant failed without acceptable reasons to attend to unpaid community work as directed on four occasions being 19 and 24 February and 3 and 10 March 2001. When considering the matter on 16 May 2001, his Honour noted that, despite the leniency that was extended to the applicant and notwithstanding the warnings that had been given to him to comply with the CBO, he had failed to do so and his breaches were, in the main, inexcusable. His Honour accepted the applicant's evidence that he had been working long hours in the new year but he nevertheless failed to comply with the conditions of the order and had failed to provide acceptable reasons to CORE for his non-attendance. His Honour regarded the applicant's excuses that were made on his behalf by his counsel on 16 May 2001 were of the same character as those made on 4 August 2000. It should also be mentioned that the CORE reports make it clear that the CORE management had gone out of its way to re-arrange schedules and places at which the applicant could perform his unpaid community work in order to accommodate his changes in the location of his normal work and the hours which he was required to work at his paid employment. Notwithstanding these efforts on the part of his supervisors, the applicant failed on many occasions to attend to his obligations as I have already said. He was given many opportunities by his supervisors to "start again", in order to obviate the need for CORE to report or charge him for breaches of the CBO. It seems that he had little appreciation of the extra work he was thereby causing to CORE, or, if he did appreciate it, he chose to disregard it I have already mentioned that on 16 May 2001 his Honour fined the applicant $200 for the breach of the CBO and cancelled the order. In re-sentencing the applicant his Honour again reminded him of the seriousness of the original offence, and that the original sentencing disposition was lenient in the circumstances. His Honour took into account specifically the number of hours that he had worked pursuant to the order, saying that had it not been for the fact that he carried out the number of hours of unpaid work that he had, he would have imposed on the applicant a sentence of 12 months' imprisonment; because of the extent of his compliance with the order, the judge sentenced him to eight months' imprisonment for the count of armed robbery and suspended four months of it for a period of 12 months.
The applicant now seeks leave to appeal against the sentence on the following grounds:
1.The learned sentencing judge erred in giving insufficient or no weight to the following facts:
(a) the applicant's youth;
(b)the applicant's co-operation with the police and his earlier plea of guilty;
(c) there should be parity considerations operating in his favour;
(d) the applicant had partially completed the CBO.2.In all the circumstances, the sentence was manifestly excessive.
In the submissions made in support of these grounds it was contended that, in determining the sentence, his Honour failed to give any or any sufficient weight to the following factors:
(a) the extent to which the applicant had complied with the CBO;
(b)the fact that the offence was committed over four years prior to the passing of the sentence;
(c)the factors in mitigation of sentence originally relied upon by the applicant;
(d)mitigating factors that have arisen since the imposition of the CBO, more particularly that:
(i) he had been in full-time employment;
(ii)he had not committed any further offences thereby demonstrating
reduced need for supervision;
(iii)he had completed 197 hours of community work.
In a strong argument by Mr Dean for the applicant on the hearing of this application, it was contended that his Honour did not exercise his sentencing discretion on 16 May 2001 but merely imposed the prison sentence that he foreshadowed on 16 September 1999. His Honour failed, it was said, to consider whether in all the circumstances a custodial sentence was the only appropriate sentencing disposition. In my view, however, that submission is without foundation. It is quite apparent from the sentencing remarks and what was said at the hearing of the plea in mitigation, that his Honour considered all the sentencing options and concluded that there was no real alternative but to impose a sentence of imprisonment. The applicant's counsel at the hearing of the plea for mitigation accepted that a sentence of imprisonment would be an appropriate sentencing disposition but argued that it should be fully suspended. His Honour in fact suspended one half of the term of imprisonment. Thus it is apparent from his Honour's sentencing remarks that he had regard to the mitigating circumstances to which he had referred on 16 September 1999. The learned judge repeated some of the mitigating factors and it is clear enough that his Honour had available to him the record of his earlier sentencing remarks (in which he had said that he would retain a record of them in case the applicant was brought back before him for re-sentencing). It is obvious, as I have said, that his Honour took into account in re-sentencing the applicant the extent to which he complied and completed the community-based order. I note in passing that to say, as has been said for the applicant, that he "had been in full employment" does not fully state the position. The reality is that he had full-time casual employment which ceased not long after the Grand Prix, and for some time before he was re-sentenced he was essentially unemployed. In any event, his Honour did acknowledge and did take into account as a mitigating factor the applicant's term of employment. Similarly, there is, in my view, no substance in the contention that the applicant's prospects of rehabilitation must be high because he had not committed further offences since May 1997 and that he had completed a large amount of unpaid community work. That submission totally disregards the applicant's breaches of the CBO and his effective abuse of the leniency extended to him by the court and by CORE. For the reasons to be given later, it is my view that his Honour was entitled to take into account in determining the sentence in question the applicant's failure to adhere to his promise to observe the conditions of the CBO as making him a person who was unsuitable for further leniency from the court.
In my opinion, there is also no substance in the claim that was made on behalf of the applicant that his Honour failed to take into account when sentencing him the matters listed above.
Similarly, I do not accept that the sentencing judge did not give due weight to the above matters. There is nothing in his Honour's sentencing remarks that supports such a claim, and, for the reasons stated below, the sentence is not manifestly excessive - it is well within the range of sentences properly available to his Honour. Whether the sentence is manifestly excessive does not admit of much debate. It is essentially a matter of impression, and the question is not whether this Court would have imposed the same sentence had it been in the shoes of the sentencing judge, but whether the sentence is wholly disproportionate to the crime committed given the circumstances of the offending and the relevant circumstances of the offender. In re-sentencing the applicant, his Honour was required to fix a sentence which properly reflected the gravity of the offence and of the offending, and obviously taking into account matters personal to the applicant, including mitigating factors. That his Honour did this, as I have said, is clear from his sentencing remarks.
The crime of armed robbery is regarded by the Parliament as one of the most serious crimes in the statute and is reflected in the maximum penalty prescribed for the offence, namely, 25 years' imprisonment. Moreover, the circumstances of the offending in this case were serious. They involved terrorising, in his own premises, an unarmed and considerably older person with a weapon and stealing his takings under threat of causing him serious physical harm. It was a cowardly crime which was perpetrated simply because one of the offenders was pressed to pay his drug related debts. It is true that, as his Honour recognised and as I have already mentioned, the applicant was not the instigator or the principal perpetrator of the offending, but he participated in its execution with full knowledge of the circumstances, intending that Mr Wang be deprived of his money under threat of physical harm. Next, the applicant abused the leniency extended to him by the court on two occasions by persistently breaching the terms of the order. In my view, the breaches of the CBO by the applicant could not be properly characterised as mere failure on occasions to comply with the terms of the original order. The frequency of the breaches and the applicant's blatant disregard for the need to give an acceptable explanation or excuse to CORE for not being able to comply with the conditions, bordered on a contumelious disregard by him of the court's order and of the leniency
it had extended to him. It is true that the applicant cannot be punished for breaches of the CBO by the court increasing the sentence that is to be imposed in respect of the original offence so as to reflect such breaches, but it is appropriate to take them into account in determining whether he is a suitable person to whom leniency should be extended (once again) when the new sentence is fixed. In that context, it is relevant to bear in mind that in this case the applicant has effectively thumbed his nose at the court by frequently ignoring its order and the conditions of that order.
When the aggravating matters are balanced against the above-mentioned mitigating circumstances which his Honour took into account, it becomes apparent that the sentence imposed on the applicant on 16 May was well within the range of the sentencing options available to his Honour. It follows that, in my opinion, the application should be dismissed.
BROOKING, J.A.:
I agree.
VINCENT, J.A.:
I agree.
BROOKING, J.A.:
The application is dismissed. The applicant will, of course, remain in custody to resume the service of his sentence.
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