R v Ziergerink

[2001] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 280 of 2000

THE QUEEN

v.

THOMAS GERARD ZIEGERINK

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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 118

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CRIMINAL LAW - Sentence - Theft - Armed robbery - Drug addiction - Six years with non-parole period of four 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	In person

BROOKING, J.A. (delivering the judgment of the Court):

1. We have before us an application for leave to appeal against sentence by an applicant who has already been refused leave under s.582.  We have explained to him that we are considering his application, of course, for ourselves.  He was sentenced in the County Court last September for two offences of theft and two of armed robbery.  He was given twelve months' imprisonment for each theft and three years' imprisonment for each armed robbery, with orders for concurrency which were perhaps rather unusually expressed but which, it is clear, gave rise to a total effective sentence of six years, a non-parole period of four years six months being fixed. 

1. All the offences were committed on the same day, 1 April 2000.  In the first pair of offences the applicant stole a car for the purposes of an armed robbery which he committed at a service station in Chelsea, when, armed with a sawn-off .22 rifle and wearing gloves, a balaclava and a hooded windcheater, he pointed the rifle at the attendant's stomach and stole the contents of a till.  On the afternoon of the same day, about ten hours after the first offence, he stole another car, this time in company with his brother, who was the co-accused, and used it to hold up a licensed grocery store in Macrae, which also contained a newsagency, a Tattslotto agency and a post office.  The brother did a reconnaissance and then waited in the car while the applicant, armed with the sawn-off rifle and with his face covered by part of his jacket, pointed the rifle at two female staff and stole the contents of all four cash registers, a total of about $2,700.  The applicant used the proceeds of both robberies at once to buy heroin.  The maximum penalties available were 25 years for the armed robberies and 10 years for the thefts.

1. The grounds of appeal are really only one in number, manifest excess, with special reliance being placed on the early plea of guilty and the co-operation with the police, the applicant's remorse and his prospects of rehabilitation.  A suggestion has been made that the judge was wrong in setting up general deterrence as the major consideration, but it is clear that the judge was saying this in relation to offences of this kind and not generally. 

1. The applicant had 55 previous convictions or findings of guilt from ten court appearances between 1993 and December 1998.  Leniency in various forms of sentence had been extended to him on the early occasions, but he had then undergone a number of sentences of imprisonment, including one for nine months.  The prior offences included numerous offences of dishonesty, including burglary, theft, handling and obtaining property by deception.  The applicant is now 40.  He has appeared before us in person, although he was represented on the plea.  He has put forward a written submission supplemented by some written comments made at the suggestion of a solicitor, and he has addressed us.  In addition, and very effectively and persuasively, he points out, as is of course clear, that drug addiction has been his problem.  He emphasises his very early plea of guilty;  he emphasises his admitted remorse, which may be said to have been shown in what he said to the police even at that stage;  he emphasises what he says are his prospects of rehabilitation, saying that he is now, and has for quite some time been, drug free; and he says that he is not really complaining about the individual sentences or the total effective sentence but that the non-parole period fixed is too long and should be reduced.  He understands that it is for him to show, in the absence of specific error, that the sentence passed was outside the range of available sentences, and that that means, having regard to the way he has shaped his argument, that he must satisfy us that the non-parole period was beyond the range.

1. Having regard to the nature of these offences and the number of them, the maximum penalty, the prior convictions of the applicant, and the nature and number of them, notwithstanding the capable submission which he has advanced, we find ourselves unable to say error has been shown, and accordingly we dismiss the application.

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