Sabitovic v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0206

ALLEM SABITOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2024
DATE OF JUDGMENT:	17 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 66
JUDGMENT APPEALED FROM:	[2023] VCC 1894 (Judge Ellis)

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CRIMINAL LAW – Sentence – Appeal – Armed robbery – Serious armed robbery – Category 2 offence – Lengthy criminal history – Substantial mitigatory factors – Good prospects of rehabilitation – Sentence of 2 years and 6 months, with non-parole period of 1 year and 4 months – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr J Portelli
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA:

On 13 September 2023, the applicant pleaded guilty in the County Court to one charge of armed robbery and one related summary charge of committing an indictable offence while on bail. On 19 October 2023, following a plea hearing on 11 October 2023, the applicant was sentenced to a term of imprisonment of 2 years and 6 months on the armed robbery charge, and 1 month imprisonment (to be served concurrently) on the related summary offence. This made a total effective sentence of 2 years and 6 months. The judge fixed a non-parole period of 1 year and 4 months. The maximum penalty for armed robbery is 25 years.
At the time of sentencing, the judge declared that 211 days had already been served by the applicant under the sentence she imposed. In addition, her Honour declared that, but for the applicant’s plea of guilty, she would have sentenced him to a total effective sentence of 3 years and 2 months, with a non-parole period of 1 year and 10 months.
The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that, in all the circumstances, the head sentence and non-parole period imposed are manifestly excessive.

Circumstances of the offending

The applicant and his girlfriend Fiona Jones attended the St Kilda RSL on Acland Street on the evening of 24 January 2021, where they met up with Zereth Lebeter. The applicant and Jones left the RSL when police attended for an unrelated matter. Lebeter followed shortly thereafter.
On the morning of 25 January 2021, the victim, a 56 year old man, was driving along Greeves Street, St Kilda seeking services from a street sex worker. The victim observed Jones near the intersection with Inkerman Street. They spoke about paid sexual services and Jones told the victim to go to her flat. She led him to the courtyard of premises in Greeves Street.
The applicant and an unidentified co-offender crouched behind a wall near the courtyard. Lebeter was also present in the vicinity, and when the victim and Jones walked through the courtyard, Lebeter approached them from behind.
Lebeter had a T-shirt wrapped around his head and was carrying a yellow boxcutter. Lebeter said to the victim ‘what the fuck are you doing with my girlfriend?’. The victim replied ‘She introduced herself to me. She put it on me’.
The applicant then ran towards the victim, Jones, and Lebeter, carrying a red boxcutter. He said ‘Get his gold, get his wallet, get his keys and get his watch’. The victim ran away onto Greeves Street while the applicant and the unidentified co-offender followed. Lebeter yelled ‘I’m going to kill you, I’m going to rob ya, you’re fucked’.
The victim tripped and fell, and the group caught up to him. The applicant and Lebeter pinned the victim to the ground by standing on him. Jones eventually caught up to the group.
The group stole from the victim:
•a wallet containing $200 cash, an ANZ bank card and a Medicare card;
•a single vehicle key to a Holden Commodore;
•a black Nokia mobile phone;
•a gold chain with a gold cross;
•a Seiko banded watch; and
•a gold coloured bracelet.
While holding their boxcutters to the victim’s throat, the applicant and Lebeter told him that if he did not stop screaming they would stab and kill him. Lebeter stomped on the victim’s head and the applicant kicked the victim to the head. A nearby neighbour observed the assault and made a complaint to police at 4.22 am.
A short time later, Lebeter ran back into the courtyard of the Greeves Street premises. The applicant and Jones were nearby. The victim approached the applicant and asked for his gold chain back, as his mother had given it to him. The applicant swung his boxcutter towards him and stole his gold bracelet. He asked the victim which car was his. Jones then pointed to the car parked in Greeves Street and said ‘that one’.
At approximately 4.42 am, the victim approached a patrolling police car on Greeves Street. Paramedics were called to assess him. The victim suffered a laceration to the back of his head, bruising in the shape of a shoe print to the back left side of his head and scratches to his neck.
On 28 April 2021, police arrested the applicant and Jones at premises in Dandenong. At Dandenong police station, the applicant participated in a record of interview. He told police that he was in a relationship with Jones and that he had memory issues. He denied involvement in the offending.
At the time he committed the armed robbery, the applicant was on bail — giving rise to the related summary offence, for which the applicant was given a sentence wholly concurrent with the sentence imposed on the armed robbery charge.

Applicant’s background

The applicant was born in December 1988. He was 32 at the time of the offending, and 34 at the time of sentencing. His parents separated when he was a child. His father re-partnered when he was in primary school, and his mother re-partnered when he was 16.
The applicant struggled academically at school. After leaving school, he began an apprenticeship, but then switched to working as a truck driver. He later lost his driver’s licence, which prevented him from continuing with this work. For periods of time, he worked as a painter and as a tiler.
After leaving school, the applicant commenced using cannabis. His cannabis use increased and, in his early twenties, he commenced using methylamphetamine. He also consumed alcohol heavily.
The applicant has a significant criminal history, dating back to 2007. His first conviction occurred after he started using methylamphetamine. Between 2007 and committing the armed robbery for which he fell to be sentenced, the applicant was convicted of numerous offences, including criminal damage, riot, possessing cartridge ammunition without a licence or permit, possessing a controlled weapon without an excuse, multiple dishonesty offences, burglaries, attempted burglaries, drug offences, driving offences, and multiple convictions for committing an indictable offence while on bail and contravening a conduct condition of bail. He also has an extensive history of breaching court and parole orders.
The applicant was diagnosed with severe anxiety and depression in his early twenties. He was subsequently placed on a disability support pension and, since then, has largely remained unemployed.
Upon his arrest in April 2021, the applicant was remanded in custody. He was later released on bail in November 2021, in order to attend a rehabilitation program at The Cottage in Shepparton. The program lasted for a period of 16 weeks, during which the applicant was subject to onsite supervision, regular urine screens, daily drug counselling and education programs. There was evidence tendered on the plea that, throughout the applicant’s time at The Cottage, he demonstrated a firm commitment to his recovery from substance abuse, and displayed a willingness ‘to change and grow’.
Between the time the applicant left The Cottage and the time he was sentenced, he lived with his grandmother, acting as her carer. During that period, he also worked on a part-time basis for a domestic building company operated by his uncle.

Sentencing reasons

The judge commenced her reasons for sentence by noting that, on 17 July 2023, following a sentence indication hearing,[1] she had said that she ‘would impose a sentence of a specified type, that being an immediate custodial sentence’.[2] The judge said that, after considering the indication given, the applicant’s counsel later indicated that the applicant intended to plead guilty and that, on 13 September 2023, the applicant pleaded guilty to the charges for which he fell to be sentenced by her.[3]
[1]See ss 207–209 of the Criminal Procedure Act 2009.
[2]DPP v Sabitovic [2023] VCC 1894, [1] (‘Reasons’).
[3]Ibid [2].
After setting out the circumstances of the offending,[4] the judge referred to the victim’s Victim Impact Statement. The judge observed that the victim ‘places blame on himself for being in such a position and notes that he made a mistake’. The judge also referred to the victim having experienced depression, anxiety and suicidal thoughts, and having sought help from a psychologist to deal with the impacts of the offending. The judge said that she took into account the impact on the victim of the applicant’s offending.[5]
[4]Ibid [3]–[21].
[5]Ibid [22]–[24].
In summarising the procedural history, the judge noted that the applicant was committed to stand trial, following a contested hearing in the Magistrates’ Court. The judge also noted that there had been multiple directions hearings in the County Court, and that an examination of the victim, pursuant to s 198B of the Criminal Procedure Act 2009, had occurred in that court.[6]
[6]Ibid [25]–[28].
The judge summarised the applicant’s prior criminal history, noting that he had prior appearances in the County Court in 2007 and 2016. Her Honour said that, while the applicant relevantly had prior convictions for burglary, attempted burglary, theft and theft of a motor vehicle, he did not have any prior convictions for robbery or armed robbery. The judge said that ‘[t]his incident demonstrates an escalation to some degree in criminal offending’.[7] Additionally, the judge noted the applicant’s history of non-compliance with sentencing orders as well as his history of disregarding bail conditions. The judge noted, however, that in relation to the current matter, the applicant had ‘maintained compliance with [his] bail conditions’.[8]
[7]Ibid [29].
[8]Ibid [30].
The judge summarised the applicant’s personal circumstances in some detail.[9] In the course of doing so, her Honour referred to the health of the applicant’s grandmothers. The judge said that she accepted, and took into account, the possibility that their health may decline, causing the applicant ‘considerable stress’ which would make his time in custody more burdensome.[10]
[9]Ibid [31]–[50].
[10]Ibid [39].
The judge said that the applicant was very fortunate to have the support of his mother as well as his extended family.[11] Her Honour referred to a supportive character reference written by the applicant’s mother; a supportive letter written by the applicant’s uncle; and two supportive letters written by Aaron Gilhooly, the Operation’s Manager of The Cottage.[12]
[11]Ibid [41].
[12]Ibid [38], [40].
The judge referred to reports tendered on the plea from a psychologist, Miriam Latif; a psychologist, Ross Evans; and another psychologist, David Lococo.[13] The judge said:
I accept that you have presented with a complex history of mental health issues and that these may make your time in custody more onerous than somebody who is not suffering those conditions. I also accept that there is a risk that your mental health may decline as a result of the custodial environment but given that the report from Ms Latif is a number of years old, I give this some weight but it is not an overwhelming consideration.[14]
[13]Ibid [42]–[49].
[14]Ibid [44].
The judge noted that, while on bail, the applicant had been seeing Mr Lococo, who had been working with him to assist in managing his anxiety and symptoms of panic. The judge noted Mr Lococo’s opinion that the applicant had responded well to treatment, and that there had been some improvement in mood, and that the applicant would benefit from continuing with treatment.[15]
[15]Ibid [49].
The judge said that she took into account the fact that the applicant had spent a number of days in custody during the COVID-19 pandemic, ‘in which prison conditions were more onerous than usual’.[16]
[16]Ibid [50].
In relation to the nature and gravity of the applicant’s offending, the judge said:
The offence of armed robbery is a serious one and this is reflected in the maximum penalty applicable. The prosecution submits that this is a serious example of this offence. This was a violent armed robbery carried out by you and co-offenders to sustain your drug habit. That it was committed in company makes it particularly serious. There was a degree of planning involved with Ms Jones luring the victim to a more secluded area where he was confronted with a weapon. You later used the box cutter to threaten him, and undoubtedly the experience would have been terrifying for him.
The violent confrontation involved you physically kicking him to the head when he tried to get up. As I have said, you have not been charged in relation to this assault, but it forms part of the circumstances of the offending, as does the fact that your victim sustained minor injuries. You stole items that were of sentimental value to him, and he made this clear to you when he asked you to return the gold chain gifted to him from his mother. I accept that the offending was relatively unsophisticated, and that you made little or no attempt to disguise your identity or your movements.[17]
[17]Ibid [51]–[52].
The judge then observed that the sentencing principles of general and specific deterrence were relevant, as were the principles of denunciation, protection of the community and just punishment, ‘whilst balancing these with the need to consider [the applicant’s] rehabilitation’.[18]
[18]Ibid [53].
The judge said it was to the applicant’s credit that, despite his extensive criminal history and his longstanding issues with substance abuse, he had managed to sustain a lengthy period of abstinence for almost two years between the time he was released on bail and the time of sentencing.[19]
[19]Ibid [54].
After referring in more detail to the time the applicant spent at The Cottage, the judge said that she accepted that the program at The Cottage involved a degree of confinement which, in accordance with this Court’s decision in Akoka v The Queen,[20] her Honour said that she took into account in moderating the applicant’s sentence.[21]
[20][2017] VSCA 214.
[21]Reasons, [57].
The judge returned to the issue of rehabilitation, saying that it was in both the applicant’s and the community’s interests that the applicant be rehabilitated. The judge accepted that returning the applicant to custody ‘may expose [him] to negative influences and risks dismantling the structures and networks that [he had] developed in the community’.[22] However, her Honour then said:
Unfortunately, there is no other alternative to ordering a further period of imprisonment. Although your efforts at rehabilitation are impressive and although gaol carries with it a risk of undoing the excellent progress that you have made, given the seriousness of the offending here, and to give effect to the principles of sentencing, it is necessary that I must impose a further period of imprisonment.[23]
[22]Ibid [59].
[23]Ibid.
In the course of dealing with the issue of parity,[24] the judge contrasted the applicant’s position with that of the co-offender, Lebeter,[25] noting that the applicant had the benefit of having engaged in residential rehabilitation and having made significant steps towards his own reform. The judge said:
I accept that there has been a powerful change in your trajectory and I give this considerable weight in the sentence that I am about to impose.[26]
[24]Ibid [60]–[66].
[25]Who had been sentenced to a term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years.
[26]Reasons, [64].
The judge also noted that, although the applicant’s plea of guilty ‘came much later than that of [his] co-offenders, it is nonetheless valuable’.[27] As the judge put it:
By pleading guilty you have saved the court and the community the time and the costs of a trial. More importantly you have spared the victim from having to give evidence and relive the experience. In the context of COVID‑19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence. Whilst that backlog has now in effect been reduced to a pre-COVID standard, your decision to plead guilty should be considered in light of that backlog. By pleading guilty this has ensured a reduction in trial work and accordingly I propose taking into account that your plea of guilty occurred during the pandemic, albeit that the weight attached to this is no longer as great as it was earlier this year.
Furthermore, I accept that by pleading guilty you have demonstrated a degree of remorse for the offending. You have accepted responsibility for your behaviour, and this is consistent with your rehabilitative efforts to date. Your mother speaks of your regret. I accept that you are remorseful.[28]
[27]Ibid [66].
[28]Ibid [66]–[67].
The judge also took into account the issue of delay, saying that the matter had been hanging over the applicant’s head for a number of years and that this had no doubt been stressful. The judge said that it was to the applicant’s credit that he had continued with his rehabilitation, despite the stresses and uncertainty caused by that delay.[29]
[29]Ibid [68].
Finally, the judge said that, given the applicant’s efforts to stay off drugs and rehabilitate himself, she was of the view that his prospects of rehabilitation were good, and that they were enhanced by the fact that the applicant has considerable family support. Her Honour said that, in the light of those matters, she had fixed a longer period of parole to facilitate the applicant’s ongoing rehabilitation.[30]
[30]Ibid [69].

Applicant’s submissions

In contending that the head sentence and non-parole period imposed by the judge were manifestly excessive, the applicant submitted that her Honour erred by giving insufficient weight to the following matters:
(a)the substantial rehabilitation achieved by the applicant, which included his successful completion of a 16-week residential drug rehabilitation program at The Cottage; his positive compliance with bail conditions; his continued abstinence from drug use; and his engagement in further treatment with a psychologist on an ongoing basis;
(b)the two year delay ‘in connection with the COVID-19 pandemic’;
(c)the strong support from the applicant’s family;
(d)the applicant’s anguish because of family hardship;
(e)the gainful employment in which the applicant had been, and was, engaged in at the time of sentencing;
(f)the applicant’s complex mental health history;
(g)principles 5 and 6 of R v Verdins;[31]
(h)the fact that the time the applicant served on remand was more onerous than normal as a result of the COVID-19 pandemic;
(i)the applicant’s remorse; and
(j)the applicant’s plea of guilty.
[31](2007) 16 VR 269 (‘Verdins’).
In submitting that the sentence imposed upon him was manifestly excessive, the applicant referred to the judge’s recognition that there was a significant correlation between the applicant’s criminal offending and his drug addiction. While that drug addiction provided ‘scant excuse’ for the applicant’s offending, the applicant submitted that, as against that background, in the two years prior to sentencing, he had achieved what could only be described as ‘spectacular rehabilitation from his longstanding drug addiction’.

The applicant noted the judge’s conclusion that his prospects of rehabilitation were good and would be substantially enhanced if he were to continue on the path he was on at the time of sentencing.[32] The applicant submitted that, in the light of his good prospects of rehabilitation, there was ‘no significant need for specific deterrence to form part of the sentencing exercise’.
[32]Reasons, [69].
In his written case in this Court, the applicant concluded:
Notwithstanding all of the favourable findings made [by the judge], it is submitted that the sentencing judge did not appropriately reduce the need for the sentence to give effect to general and specific deterrence and the protection of the community and did not accord sufficient weight to the applicant’s powerful efforts towards his rehabilitation. In light of the applicant’s impressive proven rehabilitation over the course of two or so years, it is submitted that his punishment ought to have been mitigated in favour of his continued rehabilitation and that this was not reflected in the head sentence and non-parole period which was imposed on him.

Consideration

Armed robbery is a serious offence that carries a maximum penalty of 25 years’ imprisonment. The armed robbery committed by the applicant in this case was a serious example of that serious offence. It was a violent armed robbery, carried out by the applicant in company, during which the applicant and a co-offender threatened the victim with boxcutters.
Notwithstanding the objective gravity of the offending, synthesising the various matters relied upon by the applicant in mitigation with the circumstances of the offending and the circumstances of the applicant, the judge imposed a head sentence of 10 per cent of the prescribed maximum penalty. While a sentence’s percentage of the maximum penalty available cannot be determinative, it should also be noted that the non-parole period fixed by the judge was less than 6 per cent of the maximum penalty.
As sentencing judges often are, the judge in this case was faced with a difficult decision requiring her to synthesise factors which called for a substantial period in custody (the objective seriousness of the offending and the applicant’s prior criminal history) with factors which called for significant moderation and leniency (the applicant’s very substantial efforts to rehabilitate himself while on bail, coupled with the various other matters in mitigation to which we have already referred). Sentencing the applicant in circumstances where there were such competing considerations was no easy task.
That said, in her reasons for sentence, the judge gave careful and detailed consideration to all of the matters relied upon by the applicant in mitigation. A fair reading of the Reasons shows that each of the matters relied upon by the applicant in mitigation were appropriately considered and dealt with as part of the sentencing synthesis.
There is no substance in the applicant’s complaint about the judge’s determination that specific deterrence was a relevant sentencing consideration. While the applicant’s efforts to rehabilitate himself while on bail were to his great credit, the existence of those matters and the finding that the applicant has good prospects for rehabilitation did not render specific deterrence irrelevant. The applicant’s substantial criminal history going back over many years required the judge to take account of the issue of specific deterrence in sentencing him for his present crimes.
But for the matters the applicant was able to call in aid in mitigation of sentence, we would have expected the applicant to have received a significantly longer term of imprisonment than that imposed by the judge. Contrary to the applicant’s submissions, the fact that the applicant was given such a moderate sentence (head sentence and non-parole period) in this case can only be explained by the judge having given full weight to all of the mitigatory factors relied upon by the applicant.
Section 5(1) of the Sentencing Act 1991 provides that the only purposes for which sentences may be imposed are punishment which is just in all the circumstances; deterrence; to establish conditions within which rehabilitation may be facilitated; denunciation; protection of the community; or a combination of two or more of any of those purposes. While it may be accepted that, where an offender has demonstrated rehabilitation and that a sentence should be tailored as much as possible to allow the offender to complete the process of rehabilitation, as has been said before, the sentencing purpose of rehabilitation cannot be allowed to overwhelm the sentencing exercise — especially in a case involving serious and violent offending.[33]
[33]DPP v Reynolds [2022] VSCA 263, [94]–[96] (T Forrest JA and Kidd AJA).
Armed robbery (when the victim of the offence suffers injury as a direct result of the offence, or the offence is committed by the offender in company) is a category 2 offence within the meaning of s 3(1) of the Sentencing Act. As a result, s 5(2H) of that Act required the judge to impose a term of imprisonment of greater than 12 months unless one of the exceptions in that section applied. It was common ground on the plea, and in this Court, that none of the exceptions in s 5(2H) applied. It follows that, in sentencing the applicant, the judge was bound to impose a term of imprisonment of greater than 12 months. The question then becomes whether the term of imprisonment imposed, or the non-parole period fixed, in this case was, in all of the circumstances, manifestly excessive.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[34] In the present case, the proposition that the sentence imposed by the judge was wholly outside the permissible range is simply not arguable. To the contrary, in our view, the sentence imposed by the judge was well within range. To have imposed any lesser sentence for this serious and violent offending (notwithstanding the powerful mitigating circumstances present in this case) would have risked permitting the sentencing purpose of rehabilitation to overwhelm the sentencing synthesis in which the judge was required to engage.
[34]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

Conclusion

It follows from the above that leave to appeal must be refused.
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[2024] VSCA 66

17 April 2024