Robinson v The Queen
[2017] VSCA 304
•24 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0010
| EDWARD ROBINSON | Appellant |
| V | |
| THE QUEEN | Respondent |
S APCR 2017 0016
| MARK ROBINSON | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 October 2017 |
| DATE OF JUDGMENT: | 24 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 304 |
| JUDGMENT APPEALED FROM: | [2016] VCC 2068 |
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CRIMINAL LAW – Appeal – Sentence – Appellant Mark Robinson convicted of aggravated burglary; possessing a firearm whilst prohibited; intentionally causing injury; possessing a drug of dependence – Six years’ imprisonment – Non-parole period of four years – Cumulation orders – Whether judge erred in regarding an uncharged criminal act as aggravation – Whether appeal court satisfied that different sentences should be imposed – Whether sufficient weight given to intellectual disability – Whether offending conduct and personal circumstances properly considered – Appeal dismissed – Sentencing Act 1991 (Vic) s 44 – DPP v Bowden [2016] VSCA 283 – R v Verdins (2007) 16 VR 269.
CRIMINAL LAW – Appeal – Sentence – Appellant Edward Robinson convicted of aggravated burglary; intentionally causing injury; storing firearm in an insecure manner while in possession of firearm without a licence– possess ammunition without licence (summary charge) – Five years and six months’ imprisonment – Non-parole period of three years – Parity – Cumulation – Whether sentence manifestly excessive – Early guilty plea – Degree of criminality – Limited criminal history – Rehabilitative steps taken – Appeal dismissed – Sentencing Act 1991 (Vic) – DPP v Bowden [2016] VSCA 283.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant, Edward Robinson | Ms C A Boston | Lethbridges Barristers & Solicitors |
For the Applicant, Mark Robinson | Ms E Clark | Stary Norton Halphen |
| For the Crown | Ms S A Flynn | Office of Public Prosecutions |
KAYE JA
BEALE AJA:
The two appellants, Mark Robinson and Edward Robinson, were each charged, on separate indictments, on a number of charges arising out of an aggravated burglary which they committed on 2 September 2015 at the premises of Walter Gorlin in Wickham Court, Greenvale. They both pleaded guilty to those charges before a judge at the County Court. Mark Robinson was sentenced to a total effective term of 6 years’ imprisonment with a non-parole period of 4 years, and Edward Robinson was sentenced to a total effective term of 5 years’ imprisonment with a non-parole period of 3 years.[1] By leave they each appeal against the sentences respectively imposed on them.
[1]DPP v Robinson (Unreported, County Court of Victoria, Judge McInerney, 16 December 2016) (‘Reasons’).
The sentence imposed on Mark Robinson was constituted as follows:
Charge
Offence
Maximum Penalty
Sentence
Cumulation
1 Aggravated burglary 25y 5y Base 2 Possessing a firearm whilst prohibited 10y 2y 6m 3 Intentionally causing injury 10y 1y, 6m 6m 4 Possessing a drug of dependence 1y 3m - Total Effective Sentence
6y imprisonment
Non-Parole Period Fixed
4y imprisonment
Pre-Sentence Detention 470 days Ancillary Orders Forfeiture and disposal orders 6AAA statement 8y imprisonment, with a non-parole period of 5y, 4m
The first charge (aggravated burglary) alleged that Mark Robinson entered the premises at Wickham Court with intent to commit an offence involving an assault to a person in the premises, and at the time he had with him an offensive weapon, namely, a firearm, and at the time of entering a person was then present in the building, and that Mark Robinson knew a person was so present or was reckless as to whether or not a person was then so present.
Originally, Mark Robinson applied for leave to appeal on four grounds. The judge, who heard that application, gave leave to Mark Robinson on two grounds, namely, grounds 2 and 4. On the hearing before us, counsel for Mark Robinson abandoned her client’s election to renew his application for leave on grounds 1 and 3. Thus, by leave, Mark Robinson appeals against that sentence on the following two grounds:
Ground 2:The sentencing judge erred in taking into account matters in the Victim Impact Statement which were not agreed facts.
Ground 4:The individual sentences on charges 1 and 2, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(a)The learned sentencing judge gave insufficient weight to the applicant’s intellectual disability and the application of Verdins principles, the need for targeted supervision and services upon release into the community and the principle of totality.
(b)The learned sentencing judge failed to distinguish the offending conduct and personal circumstances of the applicant from that of the respondent in DPP v Bowden [2016] VSCA 283.
The sentence imposed on Edward Robinson was constituted as follows:
Charge Offence Maximum Sentence Cumulation 1. Aggravated burglary
[s 77 of the Crimes Act1958]
25y 5y Base 2. Intentionally causing injury
[s 17 of the Crimes Act
1958]10y 12m 6m Charge Offence Maximum Sentence Cumulation 3. Storing firearm in an insecure manner whilst in possession of firearm without a licence [s 129A of the Firearms
Act 1996]
4y or 240 penalty units 6m Concurrent Summary Charge
13 Possess ammunition without licence [s 124 of the Firearms
Act 1996]
40 penalty units $758.35 fine Total effective sentence 5y, 6m imprisonment Non-parole period 3y Pre-sentence detention declared 183 s.6AAA statement 7y, 4m imprisonment with a non-parole period of 4y, 6m Other Orders:
• Forfeiture and disposal orders
• Forensic procedure order
The first charge (aggravated burglary) alleged that Edward Robinson entered the premises at Wickham Court as a trespasser with intent to commit an offence involving an assault to a person therein and at the time of entering a person was present, and Edward Robinson knew the person was present or was reckless as to whether or not that person was so present.
By leave, Edward Robinson appeals against those sentences on the following grounds:
Ground 1:The learned sentencing Judge erred in the application of the principle of parity, in particular His Honour erred by:
(i)assessing the objective criminality of the applicant's role in the aggravated burglary as being equivalent to the co-offender;
(ii)not sentencing the applicant for the aggravated burglary on the basis there were significant material differences between the Indictments and criminal histories between the applicant and co-offender;
(iii)cumulating a greater proportion of the sentence imposed for the charge of intentionally causing injury than that of the co-offender.
Ground 2:The individual sentence on Charge 1, orders for cumulation and resulting non-parole period are all manifestly excessive in the circumstances.
Circumstances of the offending
Edward Robinson was born in January 1987, and Mark Robinson was born in November 1989. At the time of the incident, relevant to the charges, Edward Robinson and one Victoria Petrellis were in a relationship. Mr Gorlin, who was then 49 years of age, had previously had an affair with Ms Petrellis for approximately three months.
In the period leading up to September 2015, Edward Robinson became suspicious that Ms Petrellis had not been loyal to him. When he confronted her, she admitted that she had had a brief affair with Mr Gorlin, having met him at the Westmeadows Hotel on one occasion, but she denied that the relationship was continuing. However, her denial did not allay Edward Robinson’s suspicions. Accordingly, he purchased a computer application that enabled him to download the contents of Ms Petrellis’s phone. When he did so, it revealed that the affair between Ms Petrellis and Mr Gorlin had not ceased.
On the evening on which the offending occurred, Wednesday 2 September 2015, Edward Robinson was at home with Ms Petrellis. He became angry and confronted her about the affair she was having with Mr Gorlin. As a consequence, Ms Petrellis drove Edward Robinson to Mr Gorlin’s home. As they approached it, Edward Robinson saw that the front light was turned on and he believed someone was home. They then drove to the Westmeadows Hotel, and then to Edward Robinson’s mother’s home in Gladstone Park. When they arrived at that address, Mark Robinson came out of the house, and he and his brother Edward had a conversation while Ms Petrellis remained seated in the vehicle. Mark Robinson then went back inside the house. He subsequently returned, got into the car, and sat in the rear driver’s side seat. At that stage, Mark Robinson was in possession of a sawn-off shotgun. It was common ground on the plea that Edward Robinson was not aware of the presence of the shotgun at that time.
After Mark Robinson entered the vehicle, Edward Robinson drove it to Mr Gorlin’s address in Greenvale. When they arrived, Mr Gorlin’s twin sons, were then 17 years of age, and a friend of theirs, were outside the premises. Edward and Mark Robinson asked them of the whereabouts of Mr Gorlin, who in fact was inside his house watching television. When Mr Gorlin was alerted by his sons, he commenced to walk to the front door to see who was outside. As he did so, he was confronted by Edward and Mark Robinson, who forced their way into the address. That conduct constituted charge 1 on each Indictment (aggravated burglary). Edward Robinson immediately started assaulting Mr Gorlin by kicking and punching him. Those actions constituted charge 2 on the Indictment against Edward Robinson (intentionally causing injury). During that altercation, Mark Robinson pulled out his shotgun and discharged one round towards the ceiling of the premises. Mr Gorlin described the incident in the following terms:
(Mark Robinson) fired a shot with his shotgun. I think it went right past my ear. I heard a loud ringing in my ear.
The altercation then continued and progressed to the front yard of the premises, where Mark Robinson assaulted Mr Gorlin on the back of the head with the butt of the shotgun, before Edward Robinson and he departed in their vehicle. That assault by Mark Robinson on Mr Gorlin constituted charge 3 on the indictment against him (intentionally causing injury). At about the same time, Ms Petrellis left the scene and went to a neighbouring address in Greenvale, where the occupants telephoned the police.
When the police arrived, the appellants had departed. The police recovered a spent shotgun shell, and observed a large amount of blood inside Mr Gorlin’s premises. As a result of the assault, Mr Gorlin was admitted to the Royal Melbourne Hospital suffering from lacerations to his head, face and hands. His injuries included a six centimetre long laceration to the left parietal region which required to be closed with three staples and sutures, bruising and dried blood in the inner aspect of his right ear, bruising to the outer aspect of the right ear, and general bruising, redness and abrasions to his face.
Edward Robinson was arrested by police on 3 September 2015. When interviewed, he admitted most of the offending, but he denied any knowledge that Mark Robinson was armed with a shotgun before they attended at Mr Gorlin’s address. After his interview, a search was conducted at Edward Robinson’s home with his consent, in the course of which police located a single barrel sawn-off shotgun in a khaki bag under the dressing table in the bedroom. The possession of that weapon by Edward Robinson constituted charge 3 on the indictment against him (storing a firearm in an insecure manner whilst unlicensed). The police also located a box of shotgun ammunition in a wardrobe in a green bag. His possession of that ammunition constituted the summary offence of possession of ammunition without a licence.
On the same day, police also arrested Mark Robinson at his home. When he was interviewed, he stated that he was on ‘Ice’ (methylamphetamine) and GHB (gamma hydroxybutyrate) on the previous evening, and he had no recollection of the events that had taken place at Mr Gorlin’s premises. A search warrant was executed at his home on the same day, resulting in the location and seizure of a number of items, including a quantity of methylamphetamine. His possession of that substance was the basis of charge 4 on the Indictment against Mark Robinson (possessing a drug of dependence — methylamphetamine).
The proceeding
The charges, against both appellants, were resolved shortly before the committal proceeding commenced in May 2016. Mark Robinson remained in custody from the time of his arrest until sentence. During the seven months before the time of his plea, he had been subjected to a 23 hour lock down that was then in force in the Metropolitan Remand Centre. Edward Robinson was in custody from the time of his arrest until he was released on bail on 3 March 2016.
The pleas, in relation to each of the appellants, commenced before the judge in the County Court on 1 August 2016. Counsel for each appellant submitted that the judge should impose a sentence that combined a term of imprisonment, that was equivalent to the time already served, with a community corrections order, pursuant to s 44 of the Sentencing Act. At the conclusion of the plea on that date, the judge accordingly adjourned the matter in order to obtain the necessary pre-sentence and other reports. The pleas resumed on 15 December 2016, and the judge pronounced sentence, in relation to each appellant, on 16 December 2016.
Previous convictions
As mentioned, Mark Robinson was born in November 1989, and he was 26 years of age at the time of the offence. He had a number of previous convictions, commencing in November 2012. On that occasion, he was convicted before the Broadmeadows Magistrates’ Court for trafficking methamphetamine, dealing with property suspected to be the proceeds of crime, and possession of a controlled weapon without excuse. For those offences, Mark Robinson was placed on a community corrections order for 12 months with a number of conditions attached.
Subsequently, on 3 December 2013, and again on 3 October 2014, he was convicted of trafficking amphetamine, and thus of contravening the community corrections order. On the first occasion, he was sentenced to a term of one month imprisonment which was wholly suspended. On the second occasion, in October 2014, the suspended sentence was wholly restored. On that occasion, he was also convicted of a number of other offences, including offences of dishonesty, contravening a family violence order, making a threat to kill, possession of a prohibited weapon, and using a carriage service to menace and harass. In respect of those and other offences, he was sentenced to a term of 8 months’ imprisonment, five months of which were suspended for a period of 12 months. He was then released in November 2014. On 1 May 2015, Mark Robinson came before the Broadmeadows Magistrates’ Court charged with further breaches of the intervention order relating to his former partner. The suspended sentence was reinstated and it was directed to be served wholly concurrent with six months that he received for the new offending. Subsequently, he was released from prison on 12 August 2015, three weeks before the incident that was the subject of the present charges.
Edward Robinson has one previous criminal matter. On 16 January 2013, he was before the Broadmeadows Magistrates’ Court on charges of possession of amphetamine, possession of a prohibited weapon, dealing with property suspected to be the proceeds of crime, and dishonestly receiving stolen goods. Without conviction, he was fined an aggregate sum of $2,500.
Mark Robinson — plea
As a child, Mark Robinson lived with his parents, and his elder brother Edward, in Gladstone Park. When he was approximately six years of age, his parents separated and his father left the family home. He attended Good Shepherd Primary School and Gladstone Park Secondary School, but due to an intellectual impairment, he struggled at school. He left school at Year 10 level, and commenced work, at Kentucky Fried Chicken, as an apprentice spray painter and then as a labourer. However, he has mainly acted as a carer for his mother.
Mark Robinson commenced using amphetamine from about the age of 16 years, and methylamphetamine from the age of 20 years. He escalated to smoking 1.7 grams to 2 grams of methylamphetamine per day.
When Mark Robinson was approximately 17 years of age a dispute arose between his family and some neighbours, who alleged that an air rifle had been discharged from the Robinson home towards the garage of their home. In retaliation, the neighbours attacked the Robinson home with a number of weapons. During the ensuing fracas, the mother of the appellants caused the death of a man as he was attacking either Mark or Edward. She was charged with murder, but she was subsequently acquitted of that offence. Some time later, the Robinson family home was burnt down as a result of an arson attack.
Mark Robinson was assessed by Dr Aaron Cunningham, a forensic psychologist, in July 2016. On the hearing of the plea, a copy of Dr Cunningham’s report was tendered, and he also was called to give evidence.
Dr Cunningham considered that Mark Robinson has suffered from symptoms of post-traumatic stress disorder. Psychometric assessment revealed that, on the verbal comprehension index, Mark Robinson scored better than 2 percent of his age peers, on the perceptual reasoning index, he scored better than 3 percent of his age peers, on the working memory index, he performed better than 3 percent of his age peers, and on the processing speed index he performed better than 2 percent of his age peers. His full scale intellectual quotient was assessed as 64, with a range of 61 to 69. As such, 99 percent of his age peers would have a higher intellectual quotient. Dr Cunningham considered that, based on that testing, Mark Robinson would qualify for disability support services.
Dr Cunningham concluded by expressing the view that Mark Robinson presented with a diagnosis of post-traumatic stress disorder. Dr Cunningham considered that he was predisposed to that condition by a lack of emotional support in his family home. His mother suffered physical and mental illness, and his father was not present or supportive during his younger years. The stress disorder had been precipitated by the home invasion by the neighbours and the sequelae to it.
On the basis of the psychiatric tests, Dr Cunningham assessed Mark Robinson to be in the ‘extremely low range’ of intellectual functioning. Dr Cunningham stated:
In my opinion Mr Robinson would have an impaired understanding of the consequences of his actions and would be prone to impulsive behaviour relative to his peers. His abuse of drugs would aggravate his impairments in judgment. In my opinion, Mr Robinson’s intellectual impairment and drug abuse would have impaired his judgment with respect to his offence behaviour and their consequences.
Dr Cunningham further considered that, in view of his intellectual impairment, Mark Robinson would be prone to abuse and manipulation in a prison environment, and that exposure to trauma in prison would likely aggravate his symptoms of trauma and hypervigilance.
After the completion of Dr Cunningham’s evidence, Mark Robinson’s plea was adjourned in order to obtain the additional reports that we have referred to. During that period, the Department of Health & Human Services, having assessed Mark Robinson, declared that he was eligible to receive services under the Disability Act 2006 on the basis of his intellectual disability. A pre-sentence report from the Department of Justice & Regulation assessed him as having a high risk of general re-offending. It recommended that he be assessed by Offending Behaviour Programs to determine his suitability to participate in a program designed to address his violent behaviour, and that he also be assessed to determine whether drug and alcohol treatment or counselling was required. A Justice Plan was also provided by the Department of Health & Human Services.
On the resumed plea, counsel for Mark Robinson submitted that, based on those reports, and the evidence of Dr Cunningham, the judge should impose a combined sentence consisting of a community corrections order together with time in custody. It was contended that Mark Robinson’s impaired mental functioning was relevant to sentencing in each of the six respects identified by this Court in R v Verdins.[2]Counsel submitted that, by reason of his low intellect, Mark Robinson lacked sufficient capacity to reason and make judgments, and that his conduct, in the offending, was the result of the impulsiveness that was a feature of his intellectual disability. In particular, counsel contended that Mark Robinson did not have the capacity or time to think and reason through logically about what the consequences of his conduct would be. Counsel recognised that, in terms of parity of sentencing, Mark Robinson had more previous convictions, and that he, not Edward Robinson, had brought the weapon to the place of the burglary. On the other hand, counsel contended, those matters were balanced by Mark Robinson’s significant intellectual disability, and the fact that he had spent a substantial period of time in custody during a period of 23 hour lock down.
[2](2007) 16 VR 269, 276 [32] (‘Verdins’).
In response, counsel for the prosecution accepted that a sentencing disposition, combining a period in custody with a community corrections order, would be ‘within range’, but the period of custody should be close to the maximum of 2 years that was prescribed by s 44 of the Sentencing Act. Counsel for the prosecution further accepted that Mark Robinson’s post-traumatic stress disorder, and his intellectual disability, were relevant to the fifth and sixth items specified in Verdins, and that, in addition, as a result of those matters, general deterrence should be moderated, but only in a ‘very tempered’ degree. Counsel noted that Mark Robinson had had time to collect his thoughts before entering his brother’s car, in order to travel to Mr Gorlin’s residence. Counsel further submitted that it had not been established that the offending itself was due to Mark Robinson’s intellectual disability or post-traumatic stress disorder, or whether it was due to his consumption of methamphetamine or GHB.
Edward Robinson — plea
Counsel for Edward Robinson submitted that it would be appropriate for the judge to combine the period of imprisonment, already served by him, with a community corrections order. In terms of the offending, counsel noted that at the time he entered Mr Gorlin’s premises, Edward Robinson did not know that his brother was carrying a firearm. While Edward Robinson entered with the intention to assault Mr Gorlin, he came off second best, as Gorlin got the better of him.
Counsel noted that while the appellant had been on remand, he had made significant progress towards his rehabilitation. He had worked with Sleepeezee as a labourer, and a testimonial from the employer was tendered on the plea. In addition, he had attended ten out of twelve sessions in the Men’s Behaviour Change Program conducted by Plenty Valley Community Health, and a certificate of that organisation was also tendered. Edward Robinson had also attended four sessions of drug and alcohol counselling with Cohealth. A testimonial from that organisation stated that he had demonstrated a good insight into how his drug use had affected criminal behaviour, and that he had engaged well and demonstrated a willingness to change his lifestyle. In addition, two self-requested drug screens, both negative, were tendered in evidence.
Counsel then set out Edward Robinson’s personal background. Edward Robinson’s parents had split up when he was 8 years of age. He attended Gladstone Park Secondary School and he left school in Year 11. One year previously, he had been stabbed one night at a party, as a result of which his wounds required stitching. He attended a psychiatrist for treatment for a short period of time as a result of that assault, and he received assistance through the Victims of Crime Assistance Tribunal. Counsel also referred to the incident, already described, which involved the dispute between the Robinson family and their neighbour.
After leaving school, Edward Robinson worked in a warehouse for approximately six to twelve months. He completed a police entry examination preparation course at Kangan Institute, and also an information technology course at that institute. When he was approximately 19 years of age, he worked at the Reject Shop for 12 months in the capacity of a storeman.
At about that stage of his life, Edward Robinson commenced to use drugs, in particular amphetamine and methamphetamine. He nevertheless obtained further employment with Retail Adventures in Tullamarine for approximately two years. At that stage, he managed to wean himself off illicit drugs. However, after a motor vehicle accident at work, he resumed consuming methamphetamine at an increasing level, peaking at around 2 grams per day.
In 2013, Edward Robinson was arrested (with his brother Mark) in respect of drug related matters. As a result of a search of the family home, stolen items were found, and he pleaded guilty to the charges which have been earlier mentioned.
Counsel submitted that Edward Robinson’s plea of guilty was relevant, both for its utilitarian value, and also because it was accompanied by remorse. Counsel noted that in the course of the interview conducted by the police he had apologised for his offending and acknowledged that he had made a mistake.
Counsel submitted further that, on the issue of parity, his client’s offending was less serious than that of Mark Robinson, and his previous convictions were less serious than those of his brother. In addition, he was not armed with a weapon.
In response, counsel for the prosecution submitted that a combined sentence involving a custodial order together with a community corrections order was ‘within range’, but that the time already spent by Edward Robinson in custody was not sufficient for the purposes of adequate sentencing.
Reasons for sentence
The judge commenced his sentencing reasons by noting that Edward Robinson was the instigator and provocateur of the offences. He had taken the law into his own hands, investigated his suspicions, and acted ‘in the manner of a vigilante’. When he ascertained that someone was at home at Mr Gorlin’s house, he sought out and ‘recruited his brother to help in the escapade’.[3]
[3]Reasons [11].
The judge observed that shortly after Mark Robinson entered the premises with a loaded sawn-off shotgun, Edward Robinson assaulted Mr Gorlin. The judge then stated:
Mark Robinson then subjected the family of the victim, and the victim, to the terror of the discharge of a shotgun within the premises. This aspect being the aggravation of the aggravated burglary, insofar as Mark Robinson is concerned, which does not concern his brother.[4]
[4]Reasons [13].
The judge stated that the aggravated burglary had the characteristics of such offences that were considered by this Court in DPP v Meyers,[5] in that it was grievance driven, it involved a confrontation within the victim’s own home, and it was accompanied by violence. His Honour considered that it fell within the category of offences, considered by this Court, in Hogarth v The Queen.[6] In that case, the court had held that sentencing practices were inadequate for that category of aggravated burglaries.
[5](2014) 44 VR 486 (‘Meyers’).
[6](2012) 37 VR 658 (‘Hogarth’).
The judge then assessed the level of gravity of the charges of aggravated burglary against each appellant. His Honour stated:
In regard to both charges of aggravated burglary, that is both charges against the Robinsons, and noting that the charge is aggravated itself insofar as Mark Robinson is concerned by the firing of the shotgun, I assess the heinousness of the culpability in regard to both Robinsons as somewhere between mid-range and high.[7]
[7]Reasons [23].
The judge noted the evidence of Dr Cunningham that although Mark Robinson’s post-traumatic stress disorder did not have a relationship with the offending, his intellectual deficits had the effect that he was more prone to impulsive behaviour. He also noted that Mark Robinson was aware that what he was doing was wrong, but that his intellectual disability could be linked to explaining how he became involved in the offending. The judge found that although those matters might reduce Mark Robinson’s culpability, it could not be said that he had no sense of what he was doing.[8] Nevertheless, the judge accepted that Mark Robinson’s intellectual disability played a role in diminishing his capacity for rational judgment, so that his culpability for the offending was thereby reduced. As a consequence, the judge accepted that there was a need to moderate the sentencing considerations of punishment, general deterrence and denunciation.[9]
[8]Reasons [44].
[9]Reasons [45].
The judge also accepted that Mark Robinson’s post-traumatic stress disorder would impact on him in regard to any prison sentence, so that he would be more vulnerable in prison.[10] The judge noted Mark Robinson’s previous convictions, which were relevant to the issue of specific deterrence, but acknowledged that he did not have any previous conviction for actual violence, albeit that he did have convictions for breach of family violence orders and for uttering threats to kill.
[10]Reasons [46].
The judge accepted that the plea of both Mark and Edward Robinson, particularly in relation to the charge of aggravated burglary, was a valuable plea, as there was ‘no forced entry’ by them onto the premises.[11] His Honour also accepted that Mark Robinson had experienced difficulties while in custody, particularly during the seven months in which he had been subject to a 23 hour lock down.[12]
[11]Reasons [49].
[12]Reasons [50].
The judge then turned to the matters relating to Edward Robinson. He noted counsel’s submissions that he had no previous convictions apart from the matter in 2013, and that he had played no part in entering the premises with the shotgun. However, the judge observed that it was Edward who had instigated the whole escapade, which led to the brutal attack on the victim’s home. It was because of his grievance that Edward had gone and collected his brother Mark to assist him when he had ascertained that there were people at the victim’s home.[13]
[13]Reasons [56].
The judge referred to the mitigating factors relied on by counsel, noting that Edward Robinson had been in full time employment, he had involved himself in the Men’s Behaviour Change Program, he had undergone counselling for drug and alcohol, and he had reconciled with his partner.
The judge noted the concession made on behalf of the prosecution that in the case of both Mark and Edward Robinson, a combination of a prison sentence together with a community corrections order would be within range. The judge rejected that submission, stating:
Despite such submission … I do not consider such course appropriate by way of sentencing in regard to either prisoner. I consider that the seriousness of the objective criminality of their offending is such that a sentence involving a community correction order would not be just, nor appropriate, in all the circumstances.[14]
Mark Robinson — grounds of appeal
[14]Reasons [63].
Ground 2
Ground 2, of Mark Robinson’s grounds of appeal, is that the judge erred in taking into account matters in the victim impact statement of Mr Gorlin which were not agreed facts.
In particular, ground 2 is directed to the apparent reliance by the judge, in his reasons for sentence, on a part of Mr Gorlin’s victim impact statement in which he said that the shotgun was held to his head. The respondent has conceded that, insofar as the judge relied on that aspect of Mr Gorlin’s statement, he was in error, as it was not part of the agreed facts on the basis of which Mark Robinson pleaded guilty. In addition, the respondent has pointed to a further matter which it contends constitutes relevant sentencing error by the judge, namely, that in sentencing Mark Robinson on the charge of aggravated burglary, the judge took into account, as an aggravating factor, the discharge by Mark Robinson of the shotgun in the course of the ensuing confrontation that took place between Edward Robinson and Mr Gorlin. It has been put by the respondent that in regarding that factor as a mitigating circumstance, the judge contravened the principle stated by the High Court in R v De Simoni,[15] that an accused must not be punished on the basis of circumstances of aggravation which, of themselves, would constitute a different offence on which the accused has not been charged or convicted.
[15](1980) 147 CLR 383 (‘De Simoni’).
The first matter, relied on by the appellant in support of ground 2, is based on the passage in the judge’s reasons where his Honour recited a section of Mr Gorlin’s victim impact statement, in which Mr Gorlin described the trauma of ‘having a sawn-off shotgun held to your head in front of your child and have the gun go off and having the loud noise ringing through your ears … ‘. It was submitted on behalf of the appellant, and accepted on behalf of the respondent, that by reciting that passage from Mr Gorlin’s statement, the judge took into account a factor that was not part of the agreed facts.
At an early stage in the plea, Mr Gorlin’s victim statement was read to the judge by the prosecutor. When the passage, to which we have just referred, was read, the judge immediately interjected, noting that there was nothing in the prosecution opening about the weapon being held to Mr Gorlin’s head. He asked the prosecutor if he should disregard that aspect of Mr Gorlin’s statement, to which the prosecutor stated her agreement. Thus, the judge was well alert to the fact that the statement by Mr Gorlin, that the weapon was held to his head, was not to be a factor on the basis of which Mark Robinson was to be sentenced.
We have some hesitation in accepting the proposition that, notwithstanding the judge’s direct acknowledgement of that matter, his Honour nevertheless took it into account in sentencing Mark Robinson. However, as counsel have noted, the judge, in his reasons, said that there was no suggestion by counsel that there was ‘anything inappropriate’ about the description by Mr Gorlin of his reactions, which does indicate that his Honour might have taken into account the part of Mr Gorlin’s statement that the firearm was held to his head.
We also consider that it is not clear that, if the judge took the matter into account, it had any material effect on the sentence imposed by the judge on Mark Robinson. In particular, it is significant that, in the course of his reasons, the judge twice stated that the firing of the shotgun by Mark Robinson was an aggravating circumstance in respect of charge 1 (the aggravated burglary)[16], yet on neither occasion did the judge refer to the fact that the weapon had also been held to Mr Gorlin’s head. Nevertheless, and notwithstanding those reservations, in view of the concession by the respondent , in respect of that aspect of the judge’s reasons, we are prepared to act on the basis that the judge did take into account that Mark Robinson held the shotgun to Mr Gorlin’s head, and that that constituted a material error vitiating the exercise of the sentencing discretion.
[16]Reasons [13], [23].
On the other hand, it is clear that the judge did incorrectly take into account the discharge of the firearm as a circumstance that aggravated the involvement of Mark Robinson in the aggravated burglary.
The firing by Mark Robinson, of the weapon, was a separate criminal offence committed by him, with which he could have been, but was not, charged on the indictment. Indeed, the original indictment against Mark Robinson charged 15 offences, including two charges of reckless conduct endangering life and reckless conduct endangering serious injury. Those two charges were expressly particularised as relating to the discharge by Mark Robinson of the loaded firearm. In those circumstances, we accept the submission made by the respondent (and supported on behalf of Mark Robinson) that, by characterising the firing of the shotgun as a circumstance that aggravated charge 1, the judge failed to adhere to the established principle that an accused must not be punished on the basis of circumstances of aggravation, which, of themselves, would constitute a different offence in respect of which the accused has not been charged or convicted.
That principle was expressed by Gibbs CJ in De Simoni[17] in the following terms:
… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those sentences could have been made the subject of a distinct charge appears to have been recognised as early as the 18th century … .[18]
[17](1980) 147 CLR 383.
[18]Ibid, 389; see also Savvas v The Queen (1995) 183 CLR 1, 5; R v Olbrich (1999) 199 CLR 270, 291 [53] (Kirby J).
We further accept that the treatment by the judge, of the discharge of the weapon, as an aggravating circumstance, constituted an error that was material to the determination of the appropriate sentence to be imposed by the judge on charge 1. Consequently, the question which arises is whether a different sentence should be imposed on Mark Robinson in respect of that charge.
Before turning to that question, it is important to bear in mind that the discharge by Mark Robinson, of the shotgun, while not an aggravating factor in respect of charge 1, was nevertheless relevant to an assessment of the culpability of Mark Robinson in respect of that offence for other related reasons, that included the following:
(1)Plainly, the sawn-off shotgun that Mark Robinson used in the commission of the aggravated burglary was loaded.
(2)In the circumstances of the case, it might readily be inferred that, at the time Mark Robinson took the firearm to Mr Gorlin’s premises for the purposes of effecting entry into it, he knew that the firearm was loaded.
(3)Mark Robinson attended at Mr Gorlin’s premises, with the loaded shotgun, for the purposes of assisting his older brother Edward in a confrontation that was to take place at Mr Gorlin’s premises, at the instigation of Edward Robinson. In other words, the loaded shotgun was taken by Mark Robinson for the purposes of assisting in the commission of the confrontational aggravated burglary that took place at the premises.
(4)It might be inferred that, when Mark Robinson took the shotgun with him, and used it to effect entry into Mr Gorlin’s premises, he then intended to use it, not simply to intimidate Mr Gorlin by brandishing it, but in addition, if necessary, to intimidate him by firing it. That inference, in our view, is properly based on two facts, namely, first, the fact that Mark Robinson took the loaded shotgun with him for the purposes of effecting the confrontational aggravated burglary at Mr Gorlin’s premises, and, secondly, the fact that shortly after the initial confrontation between Edward Robinson and Mr Gorlin, in which Mr Gorlin got the better of Edward Robinson, Mark Robinson readily discharged his weapon for the purposes of intimidating Mr Gorlin.
Each of those four circumstances were relevant to an appropriate assessment of the gravity of the offence charged in count 1. While the respondent has been correct to point out, and accept, that the actual firing of the shotgun could not be taken into account, by the judge, as an aggravating circumstance of the aggravated burglary, nevertheless, as accepted by Mark Robinson’s counsel on this appeal, the four factors, to which we have referred, did not constitute uncharged criminal acts, but, rather, were necessarily relevant aspects of the commission by Mark Robinson of the aggravated burglary, which could properly be taken into account in assessing his culpability in committing that offence.
Having concluded that there was material error by the judge in sentencing Mark Robinson, we turn, then, to the question of whether, pursuant to s 281(1)(b) of the Criminal Procedure Act, this Court should be satisfied that a different sentence should be imposed on Mark Robinson in respect of both charges 1, 2 and 3. Obviously, if Mark Robinson is unable to persuade the Court that a different sentence should be imposed on him in respect of those charges, he would not be able to make good ground 4 of the appeal, that the sentences imposed on him were manifestly excessive. Accordingly, in considering the question whether a different sentence should be imposed in respect of charges 1, 2 and 3, we shall take into account the matters that were pressed, on Mark Robinson’s behalf, in support of ground 4.
In support of the submission, that a different sentence should be imposed on Mark Robinson, counsel relied, in particular, on two mitigating circumstances, namely, the effect of Mark Robinson’s impaired intellectual functioning, and, secondly, his plea of guilty, which, it was noted, the judge regarded as a ‘valuable plea’ in the circumstances of the case.
In respect of the first factor, it was submitted that Mark Robinson’s impaired intellectual functioning was a mitigating factor that ought to be accorded substantial weight. Counsel noted that the judge accepted the evidence of Dr Cunningham, and his Honour concluded that, as Mark Robinson’s disability was linked to his involvement in the offending, it reduced his culpability.[19] In addition, the judge accepted that, as a consequence of his intellectual impairment, there was a need to moderate the effect of the principle of general deterrence in the determination of Mark Robinson’s sentence.[20]
[19]Reasons [44].
[20]Reasons [46].
In respect of the second mitigating factor, counsel for Mark Robinson relied on the description by the judge, of Mark Robinson’s plea, as a ‘valuable plea’. Counsel submitted that the judge correctly considered that, at a contested trial, Mark Robinson would have been able to put in issue whether he entered Mr Gorlin’s house without any right authority to do so. In those circumstances, if the jury was not satisfied beyond reasonable doubt as to that element of the offence of aggravated burglary, Mark Robinson would only have been guilty of unlawful trespass, contrary to s 9 of the Summary Offences Act 1966, which carried a maximum sentence of 6 months’ imprisonment.
In our view, the judge was correct to assess the ‘objective criminality’ of Mark Robinson, in respect of charge 1 and charge 2, as being ‘in the high range’.[21] Mark Robinson, together with Edward Robinson, attended at Mr Gorlin’s house for the specific purpose of confronting him. The aggravated burglary was committed in circumstances in which Mark Robinson and Edward Robinson each intended that Gorlin be assaulted by one or both of them. A significant aggravating feature, of Mark Robinson’s offending, was that he was armed with a loaded shotgun for that purpose. He took that weapon with him to Mr Gorlin’s house with the intention of using it in the aggravated burglary, and, in particular, of using it to intimidate Gorlin. Further, as we have already stated, we are satisfied, on the evidence, that it should be inferred that Mark Robinson intended to intimidate Gorlin with the weapon by firing it, if the occasion arose. Mark Robinson committed the offence of aggravated burglary in company with his brother. He had been recruited, by Edward Robinson, to participate in the aggravated burglary, in order to enable the objective of the armed robbery to be carried out, namely, for Mr Gorlin to be assaulted in his own home.
[21]Reasons [47].
The offending, in charge 1, was quintessentially the type of offending that this Court has discussed in a trilogy of recent cases, namely, Hogarth, Meyers and DPP v Bowden.[22] In Hogarth, the Court concluded that the current sentencing practices, in respect of the type of offending described as ‘confrontational aggravated burglary’, had been inadequate to properly reflect the seriousness of that type of offending, and to address the requirements of appropriate sentencing. In reaching that conclusion, the Court drew attention to the maximum sentence prescribed by Parliament for the offence (25 years’ imprisonment), the prevalence of the offending[23] and the intrinsic gravity of that type of offending.[24] The views expressed in Hogarth, as to the seriousness of that category of offending, and the need for sentences to increase substantially above the then current sentencing practice, have been repeated and reflected in the subsequent decisions of the Court in Meyers and Bowden.
[22][2016] VSCA 283 (‘Bowden’).
[23]Hogarth (2013) 35 VR 658, 672 [52], [54].
[24]Ibid 673 [56].
The judge was also correct to describe the offending of Mark Robinson, in respect of charge 2, as involving criminality that was, objectively, in the ‘high range’. In assessing the culpability of Mark Robinson in respect of that offending, it is not, of course, permissible to take into account the circumstance that he had the shotgun in his possession for the purposes of the aggravated burglary that constituted charge 1. However, it is relevant that Mark Robinson had persistently committed offences involving the unlawful possession of firearms and other weapons. On 21 November 2012, he had been convicted by the Broadmeadows Magistrates’ Court for a number of offences, including possession of a controlled weapon without an excuse. On 3 October 2014, he was convicted of a number of further offences, including possession of a prohibited weapon without exemption or approval, and possession of a dangerous article in a public place. He was sentenced to a term of 8 months’ imprisonment, that was partially suspended. Subsequently, on 1 May 2015, he was convicted by Broadmeadows Magistrates’ Court on further offences, and the suspended sentence, that had been imposed on 3 October 2014, was restored. That conviction, in May 2015, was just four months before the commission of the offences in the present case. Even more significantly, Mark Robinson had only been released from prison a bare 18 days before he committed the present offences. In other words, having been imprisoned for a number of offences, including possession of a prohibited weapon, Mark Robinson, less than three weeks after his release, re-offended in the same respect.
The offending by Mark Robinson, in charge 3, was also serious. He assaulted Mr Gorlin in his own home. The assault was the objective of the aggravated burglary. In other words, it was not the product of a reaction by Mark Robinson on the spur of the moment. He struck his victim a severe blow to the back of the head with the butt of the shotgun, lacerating his scalp.
Certainly, the evidence of Dr Cunningham, as to Mark Robinson’s reduced intellectual capacity, was relevant to an assessment of his culpability for the offences that were the subject of charges 1, 2 and 3.[25] Further, by virtue of his intellectual impairment, Mark Robinson was not an appropriate medium for general deterrence, so that the weight to be accorded to that sentencing consideration needed to be appropriately moderated.[26] Nevertheless, as the judge correctly noted, Mark Robinson was well aware that what he was doing was wrong, and he was aware of the consequences of it.[27]
[25]Verdins (2006) 16 VR 269, 276 [32]; Muldrock v The Queen (2011) 244 CLR 120, 139–141 [50]–[55]; R v Yaldiz [1998] 2 VR 376, 381 (Batt JA), 383 (Winneke ACJ).
[26]R v Mooney (Unreported, Court of Criminal Appeal, 21 July 1978); R v Anderson [1981] VR 155, 160–161 (Young CJ and Jenkinson J).
[27]Reasons [44].
In addition, as the judge accepted, Mark Robinson had experienced, and would continue to experience, some difficulty in serving a prison sentence. As a result of recent riots at the prison in which he was incarcerated, Mark Robinson, together with the other prisoners, had been subject to a 23 hour lockdown for a period of seven months from April 2016. The judge also accepted that, as a result of Mark Robinson’s post-traumatic stress disorder, he might be more vulnerable in a prison environment, so that a sentence of imprisonment would be more burdensome for him.[28]
[28]Reasons [46].
The plea of guilty by Mark Robinson was a relevant mitigating circumstance. As mentioned, the judge regarded it as a ‘valuable plea’. In supplementary written submissions, counsel who was then acting on behalf of the respondent, went so far as to express the view that the judge had ‘significantly devalued’ that circumstance as a mitigating factor. Counsel, who appeared for the respondent on the appeal was, it is fair to say, less enthusiastic about that proposition, but, quite properly, she did not seek to take issue with the judge’s description of Mark Robinson’s plea (or the plea by Edward Robinson) as being ‘valuable’.
Of course, the plea of guilty, by both appellants, was of value, in that it constituted an acknowledgment by each of them of their offending, was of significant utilitarian value, and evidenced a willingness to facilitate the course of justice.
It might be accepted that Mark Robinson (and indeed Edward Robinson) could have endeavoured to resist a verdict on charge 1, on the basis that he had implied authority to enter Mr Gorlin’s home. However, and notwithstanding the finding by the judge that, for that reason, the plea was valuable, nevertheless, on the materials that were presented on the plea, there was, we consider, good reason to conclude that it was most unlikely that either appellant might have avoided conviction for that reason. Mark Robinson, in particular, attended at Mr Gorlin’s home armed with a shotgun, in order to enable him to effect entry into the premises. They both entered the premises with the intention that Mr Gorlin be assaulted. During the plea, the prosecutor referred to a part of the statement by Mr Gorlin, in which he stated that as he got to the door, Edward Robinson ‘pushed through the door and pushed his way in’. The prosecutor also read the statement of the friend of Mr Gorlin’s sons, Filippo Maiorana, who said that when Mr Gorlin went to the front door, he said ‘you’re not welcome here’ to the appellants as they approached him. Taking those factors into account, while it must be accepted that the plea was, to some extent, valuable, that circumstance, of itself, was not, we consider, a mitigating factor of the degree of weight that was sought to be attached to it on this appeal.
In the absence of the evidence concerning Mark Robinson’s intellectual impairment, and in the absence of the pleas of guilty by him, in our view the sentences imposed on him, in respect of charge 1, charge 2 and charge 3, could each properly be described as lenient. Each offence was, as we stated, particularly serious. Mark Robinson had a number of previous convictions. At the risk of repetition, he had only been released from prison three weeks earlier before he indulged in the offending in this case. He was a repeat offender in relation to the offence charged in count 2, namely, possession of the firearm. As we have described, his offending in charge 1 was particularly serious, given that he was armed with a loaded shotgun, which he intended to use for the purpose of effecting entry into Mr Gorlin’s premises.
Certainly, there were important mitigating factors to be taken into account in determining the sentences to be imposed on Mark Robinson. In particular, his intellectual impairment was of important weight for the reasons we have described. Nevertheless, taking those factors into account, and giving them full weight, we do not consider that different sentences should be imposed on Mark Robinson in respect of charge 1, charge 2 or charge 3 than those imposed by the sentencing judge. In our view, those sentences appropriately reflected a proper balance between the criminality of Mark Robinson in the commission of the offences contained in charges 1, 2 and 3, and the mitigating factors relied on, both on his plea, and in this Court. The cumulation of the sentences, imposed on charges 2 and 3, on the sentence imposed on charge 1, was quite moderate, and, in the circumstances, the total effective sentence, and the non-parole period, were each appropriate. There is no reason to depart from them at all.
Accordingly, ground 2 of the appeal must fail. It follows that, for the same reason, Mark Robinson has failed to demonstrate, for the purposes of ground 4, that the sentences on those charges were excessive.
Before passing from the appeal of Mark Robinson, we should say something about the decision of the Court in Bowden, as counsel for each appellant, in their submissions, placed some emphasis on the sentence imposed on the offender in that case.
Bowden was an appeal, by the Director of Public Prosecutions (‘DPP’), from a sentence imposed by a County Court judge on the respondent for a number of offences, including an aggravated burglary committed by him in circumstances that were considered by the Court to be ‘confrontational’. Bowden committed the aggravated burglary with a co-offender, Unlu. The judge, on the charge of aggravated burglary, sentenced Bowden to 3 years’ imprisonment. Unlu had pleaded guilty in the Magistrates’ Court, and was sentenced to a community corrections order for a period of 18 months. On appeal by the DPP, the Court considered that the sentence of 3 years’ imprisonment, imposed on Bowden, was manifestly inadequate, and increased it to a term of 4 years’ imprisonment.
In this appeal, counsel for Mark Robinson submitted that the judge, in the present case, had, in effect, regarded the sentence imposed on Bowden, on appeal, as a ‘benchmark’ and that the judge had incorrectly imposed a higher sentence on Mark Robinson than that imposed on Bowden, notwithstanding that Bowden’s offending was more serious. Counsel for Edward Robinson made a similar submission, contending that, as the offending by his client was less serious than that of Bowden, Edward Robinson should have been sentenced to a lower term of imprisonment on charge 1.
There are four short answers that should be made to those submissions.
First, it is clear that the judge did not regard the sentence, imposed in Bowden, as some sort of precedent or benchmark for the sentences to be imposed on the two appellants in respect of the charge of aggravated burglary. Instead, the judge noted that he had been provided with the decisions of the Court in Meyers and Bowden. The judge then specifically referred to the principle stated by this Court in Hasan v The Queen[29] and Hudson v The Queen,[30] in which the Court explained that previous sentences are not to be regarded as precedents, and as such they can only provide limited assistance in the determination of a sentence in an individual case.
[29](2010) 31 VR 28 [44].
[30](2010) 30 VR 610 [27]–[29].
Secondly, the judge was, with respect, entirely correct in treating the two decisions, that had been provided to him, in that way. The courts have, repeatedly, emphasised that ‘comparable cases’ are not to be regarded as precedents, to be closely analysed for similar and distinguishing features.[31] For present purposes, the relevant principles were adequately stated in Lieu v The Queen[32] in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[33]
[31]See, for eg, Hili v The Queen (2010) 242 CLR 520, 535 [48]–[54]; Hudson v The Queen (2010) 30 VR 610 [28]–[33]; Hasan v The Queen (2010) 31 VR 28 [44]; Russell v The Queen (2011) 212 A Crim R 57 [4] (Buchanan JA), [56]–[60] (Kaye AJA).
[32][2016] VSCA 277.
[33]Ibid [46].
Thirdly, as the High Court has recently emphasised in DPP v Dalgliesh,[34] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are relevant to the determination of a sentence in each individual case, nevertheless that factor is but one of a number of matters that must be taken into account in determining the appropriate sentence to be imposed in the particular case.[35]
[34][2017] HCA 41.
[35]Ibid [5]–[9] (Kiefel CJ, Bell and Keane JJ), [82] (Gageler and Gordon JJ).
Finally, in any event, the sentence imposed by this Court in Bowden, on appeal by the Director of Public Prosecutions, could not, on its facts, be used as any sort of benchmark or yardstick for current sentencing practices. In its decision in that case, the Court emphasised that, because of the need to observe the principle of parity of sentencing with the sentence imposed on Unlu, the sentence that it imposed on Bowden, on the appeal, was ‘substantially less’ than would otherwise have been the case.[36]
[36]Bowden [2016] VSCA 283 [7], [73].
Accordingly, the sentence, imposed on Bowden on appeal, was of little, if any, relevance in a determination of the appropriate sentence in the case of each appellant in this case.
As we have stated, for the foregoing reasons, ground 2 and ground 4 of the appeal on behalf of Mark Robinson must fail, and his appeal must be dismissed.
Edward Robinson — Grounds of appeal
Ground 1 — parity
The first ground of appeal, relied on by Edward Robinson, is that the judge erred in the application of the principle of parity. In particular, it is contended that the judge so erred in three respects, namely:
(a) The judge incorrectly assessed the objective criminality of Edward Robinson’s role in the aggravated burglary as equivalent to that of Mark Robinson.
(b) The judge failed to take into account that there were significant material differences between the indictments and the criminal histories of Edward Robinson and Mark Robinson respectively.
(c) The judge cumulated a greater proportion of the sentence imposed on Edward Robinson, in respect of the charge of intentionally causing injury, than on the sentence of Mark Robinson.
In advancing those grounds, counsel for Edward Robinson accepted that there were factors which favoured Mark Robinson, but not Edward Robinson. In particular, they included, first, Mark Robinson’s impaired mental function, secondly, the role of Edward Robinson as the instigator of the offending, and, thirdly, the circumstance that Mark Robinson had been exposed to a lengthy period of lockdown while in prison after the riots that occurred in April 2016.
However, counsel submitted that there were other factors that served as counterweights to those circumstances, and which had the effect that the sentences imposed by the judge on Edward Robinson, in the respects addressed by ground 1, did not adequately apply the principle of parity of sentencing.
In particular, counsel noted, in respect of the aggravated burglary, that the offending by Mark Robinson was seriously aggravated by the fact that he was armed with a loaded shotgun. Counsel referred to the observation of the Court in Bowden,[37] that, in an aggravated burglary of this nature, the fact that one accused was carrying weapons at the point of entry would make the offending ‘significantly more serious’. On the other hand, the plea of Edward Robinson proceeded on the basis that he was not aware that Mark Robinson was armed with a shotgun at the time of entry into Mr Gorlin’s premises.
[37][2016] VSCA 283 [58].
Counsel further noted that the charge against Edward Robinson, of causing injury to Mr Gorlin, was quite separate to the charge of that offence against Mark Robinson. The offence committed by Edward Robinson did not involve the use of any weapon, whereas the offence committed by Mark Robinson concerned the blow that he struck to Mr Gorlin’s head with the shotgun. In that respect, counsel drew attention to Mr Gorlin’s victim impact statement, which indicated that most of the injuries, sustained by him, were the result of the blow to the head by the shotgun wielded by Mark Robinson. Counsel also noted that the other offences on the indictment against Edward Robinson were less serious than those charged against Mark Robinson.
In addition, counsel submitted that Edward Robinson had a number of mitigating factors personal to him, which were not applicable to the sentence of Mark Robinson. In particular, Edward Robinson had no previous convictions, whereas Mark Robinson had a substantial previous criminal history. On his arrest, Edward Robinson made full admissions to the police in the course of his interview, and apologised for his conduct. The judge accepted that his plea of guilty was accompanied by genuine remorse. While on bail, he had gained fulltime employment, and had undertaken rehabilitative programs. During that time, he had been subject to stringent reporting conditions, and to a significant curfew.
Taking those matters into account, counsel submitted that the judge had failed to properly reflect the material differences between the position of Edward Robinson, and that of Mark Robinson, in the sentences respectively imposed on them.
In response, counsel for the respondent acknowledged that the possession by Mark Robinson of the shotgun, of which Edward Robinson was unaware, was relevant to an assessment of the respective culpability of each of the two offenders. On the other hand, she submitted, that difference was sufficiently counterbalanced by other matters, including that Edward Robinson was the instigator of the offending, and that he had recruited and involved Mark Robinson in it for his own purposes. Further, immediately after the two appellants forced their way into Mr Gorlin’s house, it was Edward Robinson who physically assaulted Mr Gorlin. Mark Robinson only intervened when Mr Gorlin got the better of Edward Robinson in the ensuing struggle. Counsel for the respondent noted that the offence of intentionally causing injury, committed by Edward Robinson, involved not only the striking of blows, but also Edward Robinson kicking Mr Gorlin, which, she contended, was quite egregious. In addition, counsel for the respondent took issue with the proposition, advanced on behalf of Edward Robinson, that most of the physical injuries sustained by Mr Gorlin were caused by the assaults committed by Mark Robinson, and not Edward Robinson. Further, counsel contended that the differences in the criminal histories between the two offenders were balanced by the application of the principles stated in Verdins to the determination of Mark Robinson’s sentence. In those circumstances, it was submitted that the sentences imposed by the judge on Edward Robinson and Mark Robinson respectively did not offend the principle of parity of sentencing.
The principle of parity of sentence is based on the concept that equal justice requires that, all things being equal, like offenders should be treated in the same way, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them that are relevant to their sentences, should be properly accommodated in the sentencing synthesis.[38] Sentencing error, on the basis of disparity, is demonstrated where, taking into account any relevant differences between the involvement of the offenders in the particular offences, and their personal circumstances, nevertheless there is such a manifest discrepancy between the sentences respectively imposed on them, so as to give rise to a justifiable sense of grievance on the part of the particular appellant and the objective bystander. In determining that issue, it is important to recognise the imprecise nature of sentencing in each case, which is essentially discretionary in nature, so that it may only be concluded that sentencing error has occurred, on the ground of disparity, where the appellate court is satisfied that it was not open to the sentencing judge to differentiate between the sentences of the relevant offenders in the way in which that judge did.[39]
[38]Lowe v The Queen (1984) 154 CLR 606 (‘Lowe’).
[39]Lowe (1984) 154 CLR 606, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J); Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); R v Mercieca [2004] VSCA 170 [17] (Winneke P); Kelly v The Queen [2011] VSCA 10 [5] (Redlich and Weinberg JJA).
Before considering whether the sentences imposed on Mark Robinson and Edward Robinson, respectively, failed to conform with the requirements of parity of sentencing, it is necessary, first, to address the submission made on behalf of Edward Robinson that the judge described the culpability of each offender as being equivalent. That submission was based on a passage in the reasons in which the judge, referring to the decision of the High Court in Ibbs v The Queen,[40] noted that it was necessary to define where the offence in question ‘sits on … the scale of heinousness’. The judge then stated:
In regard to both charges of aggravated burglary, that is both charges against the Robinsons, and noting that the charge is aggravated itself insofar as Mark Robinson is concerned by the firing of the shotgun, I assess the heinousness of the culpability in regard to both Robinsons at somewhere between mid‑range and high.[41]
[40](1987) 163 CLR 447.
[41]Reasons [23].
Certainly, in that passage, the judge placed the culpability, of each offender, in the same broad category in what he described as the ‘scale of heinousness’. However, that is not the same as the judge describing the culpability of each offender as being equivalent. Indeed, the specific acknowledgement by the judge, that the offending by Mark Robinson was aggravated (by the firing of the shotgun), militates against such a construction of the judge’s reasons.
The question, then, is whether, taking into account the relevant differences between the involvement of each of the appellants in their particular offences, and giving proper weight to their personal circumstances, there is nevertheless such a manifest discrepancy between the sentences imposed on them such as to give rise to a justifiable sense of grievance on the part of Edward Robinson and an objective bystander.
In broad terms, the judge was plainly correct in assessing the gravity of the offending by both appellants in charge 1 as being ‘between mid-range and high’. As already noted, the offending involved the two appellants attending at the house of Mr Gorlin, with the specific intention that Mr Gorlin be assaulted, due to a grievance harboured against him by Edward Robinson. As this Court has noted, in the trilogy of decisions to which we have already referred, such an offence, is, by its very nature, particularly serious. It offends against the basic notions of a civilised and decent society. Mr Gorlin was entitled to feel safe and secure in his own home. The courts have repeatedly made it clear that it regards intrusions into the homes of citizens, such as that which occurred in this case, as being particularly serious instances of the offence of aggravated burglary.
We turn then to the question of the comparative culpability of each of the two appellants. As noted, the judge correctly regarded the intellectual impairment of Mark Robinson as being an important mitigating circumstance, in assessing Mark Robinson’s culpability in respect of each of the offences that he committed on the evening in question. In particular, based on the evidence of Dr Cunningham, the judge accepted that at the time of that offending Mark Robinson’s intellectual disability played a role in diminishing his capacity for rational judgment, which explained why he so willingly and impulsively embarked on the escapade that had been instigated by his brother.[42] That consideration is, of course, an important factor that reduced Mark Robinson’s culpability in respect of each of the offences committed by him, and which thus differentiated him from Edward Robinson in an assessment of the respective culpability of each of them.
[42]Reasons [45].
It is of course of significance that Mark Robinson’s culpability, in respect of the aggravated burglary, was substantially aggravated by his possession of the shotgun. As already discussed, that was a serious aggravating circumstance. Not only did Mark Robinson arm himself with a weapon that, of itself, was calculated to intimidate the victim, but, importantly, in addition, he knew that it was loaded, and, as already noted, he intended to use it by firing it in order to intimidate his victim, if the need arose. Those circumstances were, self-evidently, important aggravating circumstances attaching to the culpability of Mark Robinson, that did not apply to an assessment of the culpability of Edward Robinson.
On the other hand, as the judge correctly found, Edward Robinson was plainly the architect, instigator and provocateur of the whole of the incident. The attendance of the appellants at Mr Gorlin’s house was for one purpose only, namely, to vindicate the grievance that Edward Robinson had against Gorlin, by assaulting him in his own home. For that purpose, Edward Robinson had already reconnoitred Mr Gorlin’s home to ascertain that he was there. Having done so, he drove to his mother’s place, where he recruited Mark Robinson to assist him in his illegal escapade. The whole of the episode was the product of Edward Robinson’s grievance and of his planning. It is clearly to be inferred that, if Edward Robinson had not sought to exact vengeance on Mr Gorlin in that manner, Mark Robinson would never have been involved in the offending at all. Those considerations, of themselves, were an important aggravating factor that applied to the offending of Edward Robinson and not Mark Robinson.
Counsel for Edward Robinson submitted that the culpability of Mark Robinson, for the physical assault that he perpetrated on Mr Gorlin, was greater than the culpability of Edward Robinson for the assault that he inflicted on Mr Gorlin. In particular, it was pointed out that Mark Robinson used the butt of his weapon to strike Mr Gorlin on the back of his head, which resulted in a number of injuries, including the laceration to his occipital region. Certainly, that aspect of the offences of intentionally causing injury, respectively committed by each appellant, was more serious in the case of Mark Robinson. On the other hand, it was Edward Robinson who first physically attacked Mr Gorlin almost immediately after both appellants broke into his home. In that assault, Edward Robinson resorted to kicking Mr Gorlin, which, of itself, is quite egregious conduct. On the other hand, Mark Robinson’s assault, on Mr Gorlin, was a sequel to the failed attempt by Edward Robinson to physically injure Mr Gorlin. Both assaults were, of their nature, serious. However, it could not be concluded that the differences, between the gravity of Mark Robinson’s offending by comparison with that of Edward Robinson’s offending, were not adequately reflected by the six months’ difference in the sentences imposed on them in respect of the offence of intentionally causing injury that they each committed.
There were a number of mitigating factors that applied in the case of Edward Robinson, including his lack of previous convictions, his work history, and the positive steps that he had taken towards his rehabilitation while he was on bail awaiting his sentence. Those factors did not apply in the case of Mark Robinson, who had a number of previous convictions, and who could not pray in aid the positive mitigating factors that supported the case of Edward Robinson. On the other hand, the judge correctly accepted that as a result of Mark Robinson’s intellectual impairment, and particularly as a result of his post-traumatic stress disorder, a term of imprisonment would be more onerous on him, as it rendered him more vulnerable to the difficult conditions in which a prison sentence is served.[43] Further, as a mitigating circumstance, Mark Robinson had already endured particularly difficult conditions in jail during the seven months of a 23 hour lockdown that had applied following the riots that occurred in the prison in early 2016.[44]
[43]Reasons [46].
[44]Reasons [50].
Viewed in that way, the factors that aggravated the offending of each of the appellants were substantial, and different. Equally, their mitigating circumstances were different, and relevant. Views might reasonably differ as to the weight that ought to be given to each of those factors, and as to their effect on the relativities to be applied in respect of the sentencing of each appellant. However, taking those differences into account, we do not consider that the judge erred, by failing to properly apply the principles of parity of sentencing, in imposing the sentences of 5 years’ imprisonment in respect of the aggravated burglary, and 12 months’ imprisonment in respect of intentionally causing injury, charged against Edward Robinson. Taking into account the matters that we have discussed, it was clearly open to the judge to impose on Edward Robinson the same sentence of imprisonment as that imposed on Mark Robinson in respect of the aggravated burglary, and a term of imprisonment, on the charge of intentionally causing serious injury, that was six months less than that imposed on Mark Robinson.
We also consider that it was open to the judge to make an order, in the case of each offender, that six months of the sentence, imposed on each of them, for their respective offences of intentionally causing injury, be cumulated on the sentences imposed on them for the offence of aggravated burglary. That is, the fact that the judge, by ordering the same period of cumulation, did not differentiate between the two offenders, was not such as to give rise to a justifiable feeling of grievance on behalf of Edward Robinson, or the objective bystander. The principle of totality of sentencing necessarily applied differently in the assessment by the judge of the amount of cumulation ordered in each case. In addition, on the issue of parity of sentencing, it is relevant that, while the non-parole period that was fixed for Mark Robinson constituted 66% of his total effective sentence, on the other hand, the non-parole period fixed for Edward Robinson was only 55% of the total effective sentence imposed on him. In that way, the judge differentiated between his assessment of their personal factors, and, in particular, his assessment of their respective prospects for rehabilitation.
For the foregoing reasons, we consider that ground 1 of the appeal of Edward Robinson must fail.
Ground 2 — manifest excess
In support of ground 2, that the sentences imposed on Edward Robinson were manifestly excessive, counsel submitted, first, that the judge gave excessive weight to Edward Robinson’s role in the offending, and, in particular, to the circumstances that he instigated the aggravated burglary, and that he acted in the manner of a vigilante with animus towards Mr Gorlin. Counsel submitted that, as countervailing factors, the judge ought to have taken into account that Edward Robinson was driven by a natural human response of jealousy when he learnt that his partner had been disloyal to him. It was significant, counsel contended, that unlike in the case of a number of aggravated burglaries, the commission of that offence by Edward Robinson was not accompanied by any other aggravating factor, such as the possession by him of a weapon or the like.
Counsel further submitted that the judge failed to give sufficient weight to his assessment that the plea of guilty by Edward Robinson, to the charge of aggravated burglary, was a valuable plea in the circumstances. In addition, it was relevant that Edward Robinson had made full admissions to the police during his interview, and that he apologised for his conduct, recognising that he had made a mistake. Further, it was contended that the judge failed to give appropriate weight to the fact that Edward Robinson had only a very limited criminal history, and to his personal circumstances, including his good record of employment, and the fact that he had taken positive steps towards his rehabilitation after he had been charged with the offences in question.
In support of ground 2, counsel also noted that, on the plea, counsel for the respondent had accepted that it would be appropriate for the judge to have imposed a sentence under s 44 of the Sentencing Act 1991, that combined a period of imprisonment with a community corrections order. In that respect, counsel referred to and relied on the views expressed by this Court in Boulton v The Queen[45] concerning the appropriateness of such an order.
[45](2014) 46 VR 308 (‘Boulton’).
In response, counsel for the respondent largely relied on the matters that she already put in relation to the first ground of appeal relating to the parity of sentences. She submitted that the offence of aggravated burglary, committed by Edward Robinson, was serious. In particular, his role as the instigator of the offence, and his motivation, justified the judge’s assessment of his offending as involving substantial culpability. Counsel again referred to the fact that the assault by Edward Robinson on Gorlin, constituting the second charge on the indictment, occurred immediately after he had forced his way into Mr Gorlin’s home, and that it had involved both punching and kicking of the victim. Counsel for the respondent acknowledged the concession made by her predecessor, that the plea of guilty, by Edward Robinson to the charge of aggravated burglary, was a valuable plea, and that the judge had not given it full weight. Nevertheless, she noted the passages from the transcript of the plea, in which the judge was referred to statements made by some of the witnesses, which, counsel submitted, would have refuted any assertion that the entry by the appellants onto Mr Gorlin’s premises might have been with his authority or consent.
Counsel contended that in light of the gravity of the offending, and Edward Robinson’s role and involvement in it, the sentences imposed on him were within the range of sentencing options reasonably available to the judge.
In order to establish the second ground of appeal, that the sentence imposed on Edward Robinson was manifestly excessive, it must be demonstrated that the sentences were ‘wholly outside the range of sentencing options’ available to the judge in all of the circumstances of the case.[46] In substance, in order to establish that the sentence imposed on him was manifestly excessive, Edward Robinson must demonstrate that that sentence was so excessive that it must have been the result of some error in the exercising by the judge of his sentencing discretion, notwithstanding that he has not been able to identify any specific actual error contained in the reasons for sentence given by the judge.[47]
[46]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[47]House v The King (1936) 55 CLR 499, 505; McPhee v The Queen [2014] VSCA 156, [9]–[11] (Redlich and Priest JJA).
In our view, the sentences imposed on Edward Robinson were well within the range of sentencing options available to the judge in the circumstances in this case.
At the outset, we should remark that we do not consider that a sentence under s 44 of the Sentencing Act, combining a term of imprisonment of 2 years together with a community corrections order, would have been at all adequate in the circumstances of the case. In particular, such a sentence would have been entirely insufficient to serve the important sentencing considerations, that applied in this case, namely, denunciation, general deterrence and specific deterrence. The prevalence of the kind of offending engaged in by Edward Robinson, in charge 1, and the serious nature of that offending, are such that the consideration of general deterrence is of particular importance in the determination of a sentence in a case such as this. Notwithstanding the punitive nature of the kind of penalty prescribed by s 44 of the Sentencing Act,[48] it is plain that in this case the related considerations of general deterrence and denunciation could not be given adequate weight if such a sentence were imposed on Edward Robinson in respect of charge 1, or indeed in respect of charge 2.
[48]Boulton (2014) 46 VR 308.
As we have already noted, this Court has repeatedly stated that offending of the kind committed by Edward Robinson, in charge 1, is to be regarded as particularly serious, involving as it did an intended confrontation by Edward Robinson with the occupant in his own home. That type of offending has become all too prevalent, and as already noted, offends against the fundamental basis of a civilised and decent society.
In Edward Robinson’s case, as already noted, there were particularly serious features attaching to his offending. It was Edward Robinson who decided to assault Mr Gorlin in his own home. He instigated the whole escapade, in order to vindicate the grievance that he felt against Mr Gorlin. There was some planning involved in Edward Robinson’s commission of the offence, in that he first conducted some surveillance on Mr Gorlin’s home, and then enlisted the aid of his brother Mark Robinson to assist him.
Counsel relied on the circumstance that the motivating factor behind Edward Robinson’s behaviour was the human response to learning that his partner had been disloyal to him. It is understandable that Edward Robinson would have felt aggrieved and upset, and indeed angry, on learning of that matter. However, it would be unacceptable for the courts to exercise any leniency, or extend any tolerance, to people who, through such emotions, take matters into their own hands, in order to visit violence on the person who they believe is the cause of their grief. Such conduct, and such motivation by Edward Robinson, in this case, was hardly a mitigating circumstance, but, rather, added to the gravity of the offending. The offence charged on count 1 was further aggravated by the circumstance that it was committed by Edward Robinson in company with his brother, who he had persuaded to assist him in order to add ‘weight’ to the attack that he intended to inflict on Mr Gorlin.
Equally, for reasons already canvassed, the offending by Edward Robinson, alleged in charge 2, was also serious. He assaulted Mr Gorlin immediately after forcing his way into his home. At the risk of repetition, the assault included kicking, which this Court has repeatedly regarded as a cowardly and vicious form of assault.
Certainly, it must be acknowledged that Edward Robinson was able to rely on mitigating circumstances of some substance. He pleaded guilty, made admissions in his interview, and apologised. He also had taken genuine and constructive steps to reform after he had been released on bail, and indeed during his term of incarceration before he was bailed. Importantly, Edward Robinson had only one previous matter in his criminal history, and he had no previous conviction. All of those matters were relevant to the sentencing discretion. However, taking them into account, they were not such as to offset the gravity of the offending committed by Edward Robinson, so as to lead to the conclusion that the sentences imposed on Edward Robinson were wholly outside the range of sentences available to the judge, and thus were manifestly excessive.
For those reasons ground 2 of the appeal must also fail. It follows that the appeal by Edward Robinson must be dismissed.
Conclusions
For the foregoing reasons, we have concluded that the grounds of appeal, relied on by each appellant, are not sustained. Accordingly, the appeal by each appellant must be dismissed.
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