Sankey v The Queen
[2016] VSCA 244
•7 October 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0143
| ANDREW SANKEY | Applicant |
| v | |
| THE QUEEN | Respondent |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 October 2016 |
| DATE OF JUDGMENT: | 7 October 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 244 |
| JUDGMENT APPEALED FROM: | DPP v Sankey (Unreported, County Court of Victoria, Judge Wischusen, 29 June 2016) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery – Obtaining property by deception – Total effective sentence of 12 months’ imprisonment and Community Correction Order of 18 months – Whether judge erred in imposing a CCO for all charges and term of imprisonment on one charge – Whether judge erred in finding applicant’s offending involved disguise – Whether judge erred in assessment of applicant’s prospects of rehabilitation – Whether judge erred in failing to moderate general or specific deterrence on account of the applicant’s intellectual deficits – No reasonable prospect of sentence being reduced – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Greg Thomas, Barrister & Solicitor |
| For the Crown | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA:
The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery, contrary to s 75A of the Crimes Act 1958 (charge 1) and six charges of obtaining property by deception, contrary to s 81 of that same Act (charges 2, 3, 4, 5, 6 and 7).
He was sentenced on 29 June 2016, on charge 1, to 12 months’ imprisonment, combined with a Community Correction Order (‘CCO’) of 18 months and to a CCO of the same duration in respect of charges 2, 3, 4, 5, 6 and 7.
The maximum penalty for armed robbery is 25 years’ imprisonment, and for obtaining property by deception, 10 years’ imprisonment.
By notice dated 26 July 2016 the applicant seeks leave to appeal against sentence. He relies on four grounds, as follows:
1.The learned sentencing judge erred in imposing a single Community Correction Order (‘CCO’) for charges 1 -7 in circumstances where he also imposed a term of imprisonment on charge 1.
2.The learned sentencing judge erred in finding the applicant’s offending involved disguise.
3.The learned sentencing judge erred in his assessment of the applicant’s prospects of rehabilitation.
4.The learned sentencing judge erred in failing to moderate general or specific deterrence on account of the applicant’s intellectual deficits.
For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
On 26 July 2014, two sisters, NW and SW, were dropped off at Hallam Railway Station at about 7.25 pm. They both intended to catch the train to Noble Park. They walked towards a ‘waiting booth’ on the platform to await a city-bound train.
As they reached the booth, the applicant and a co-offender, Nathan Foote, approached them. The applicant was wearing a blue hooded jumper with grey sleeves and khaki coloured pants. Foote was wearing a red hooded jumper and grey pants.
The applicant said to the two victims, in an aggressive manner, ‘take out everything you have’. One sister, NW, attempted to escape from the booth, but Foote blocked her exit. The other sister, SW, ran out of the waiting booth, jumped off the station platform, and ran across the railway line.
Charge 1 — armed robbery
Foote threatened NW with a silver fold-out knife, and said to her: ‘Give me some money, take out everything you have.’
The applicant and Foote then, acting together, grabbed NW’s purse from her handbag, which contained her Commonwealth Bank (‘CBA’) credit/debit card, and $50 in cash. They then ran in the direction of Hampton Park and Belgrave-Hallam Road, just as a train began pulling into the station. After seeing the applicant and Foote get into a car, SW then returned to the scene. The sisters then contacted the police. The entire incident was captured on good quality CCTV footage, from several angles.
During the actual course of the robbery, Foote was disguised, wearing a grey balaclava, which covered his face. However, the applicant was not, in fact, disguised.
Charge 2 — obtaining property by deception
At approximately 7.38 pm, the applicant attended a bottle shop in Hampton Park. Using the CBA card, he purchased a carton of Jack Daniels and cola cans for $97.
Charge 3 — obtaining property by deception
Moments later, the applicant and Foote were captured on CCTV entering the Hampton Park Shopping Centre and attending several stores. At approximately 7.40 pm, the applicant entered the Coles Liquorland store at Hampton Park and, using the CBA card, purchased a second carton of Jack Daniels and cola cans, this time for $80.
Charge 4 — obtaining property by deception
Several moments later, the applicant entered Coles Supermarket and, using the stolen CBA card, purchased a packet of cigarettes for $24.
Charge 5 — obtaining property by deception
Minutes later, the applicant and Foote entered Safeway Liquor BWS and, using the CBA card, purchased a third carton of Jack Daniels and cola cans, once again for $80.
Charge 6 — obtaining property by deception
Shortly thereafter, the applicant entered Safeway Supermarket and, using the CBA card, purchased a packet of cigarettes for $22.95.
Charge 7 —obtaining property by deception
At approximately 7.48 pm, the applicant and Foote entered a Safeway Plus Service Station. The applicant used the CBA card and purchased a packet of cigarettes for $27.50.
Arrest and Interview
It was not until some 12 months later that the applicant and Foote were arrested, as a result of the CCTV footage of the robbery having been shown on Crime Stoppers. That led to an anonymous tip identifying them. When interviewed by police, the applicant made no admissions of any kind.
Subsequently, at the committal mention, the applicant indicated an intention to plead guilty to all of these offences. The sentencing judge treated the plea of guilty as having been entered at a very early opportunity.
Ground One — the trial judge erred in imposing a single CCO for charges 1 to 7 in circumstances where he also imposed a term of imprisonment on charge 1
Applicant’s submissions
As indicated, the term of 12 months’ imprisonment was imposed in relation to charge 1 only. However, his Honour elected to combine that sentence of imprisonment with an 18 month CCO. He also imposed that same CCO in respect of each of the charges of obtaining property by deception. The CCO was to commence upon the applicant’s release from his term of imprisonment.
The applicant has chosen to describe that mode of sentencing as the imposition of a single ‘aggregate’ CCO of 18 months in respect of all seven charges. The judge did not use that term, but the applicant contends that this is the effect of what his Honour purported to do. It was submitted that the judge had no power to impose a sentence of that kind.
The applicant commenced his submissions regarding this proposed ground by noting that s 7 of the Sentencing Act 1991, which identifies the sentencing options available to a sentencing judge, expresses the various possible orders that can be made as, in effect, alternatives. It was submitted that the effect of the section is that, unless otherwise provided by the Sentencing Act, or any other Act, only one sentence may be imposed for a single offence.[1]
[1]Section 7(1)(k) of the Sentencing Act.
The applicant then drew attention to s 40(1) of the Sentencing Act, which provides as follows:
If an offender is convicted or found guilty by a court of two or more offences, which are founded on the same facts or form or are part of a series of offences of the same or a similar character, the court may make one community correction order in respect of those offences in place of separate orders in respect of all or any two or more of them.
The effect of s 40(1) was said to be to enable a single CCO to be imposed in respect of two or more offences, provided that those offences are of a kind that meet the requirements of the section. Thus, if a sentencing judge concludes that a term of imprisonment is not warranted, but that a CCO will suffice, the judge is empowered to impose a single CCO, albeit in respect of multiple offences.
The applicant relied primarily in support of this proposed ground upon s44(1). That section deals with what is often described as a ‘combination sentence’. It provides that, in certain circumstances, a sentence combining a term of imprisonment and a CCO can be imposed when sentencing for one or more offences. The terms of s 44(1) are, relevantly:
When sentencing an offender in respect of one, or more than one, offence … a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
The applicant submitted that neither s 40(1), nor s 44(1), confers upon a sentencing judge the power to impose what he describes as an ‘aggregate CCO’, combined with a term of imprisonment, on an individual charge. As such, in relation to charge 1, the applicant contended that the sentencing judge had imposed two quite separate sentences, one of which, the term of imprisonment, was said to apply to charge 1 alone, and the other, the CCO, which was described as an ‘aggregate sentence’, and which was said to apply to charge 1 as well as charges 2–7.
It was submitted that the sentencing judge had no power to ‘divide’ the sentence imposed on charge 1 in that way.
The applicant further submitted that there was another, quite separate, problem associated with the sentencing process adopted in this case. He submitted that it was not possible to discern, from the sentencing remarks, which component of the 18 month CCO related to any particular one of the seven offences to which the applicant pleaded guilty. He further submitted that the judge appeared to have evaluated the gravity of the offending as a whole, rather than by having regard to the gravity of each of its component parts. Even if the sentencing orders were otherwise within power, it was said to have been an error to have structured the sentence in this way.
Respondent’s submissions
The respondent submitted that it was incorrect to describe the judge as having imposed an ‘aggregate CCO’, as the applicant had done. It was submitted that s 40(1) of the Sentencing Act enables a court to impose a single CCO in respect of multiple offences. That being so, there was no reason why s 44(1), which allows for a combined term of imprisonment and a CCO, in respect of a single or multiple offences, should operate any differently.
The respondent noted that s 44(1) provides, in terms, that a court may impose a CCO ‘in addition’ to a sentence of imprisonment. Rather than two separate sentences having been imposed on charge 1, it was submitted that a single sentence had been imposed on that charge, albeit one with two components.
It was next submitted that the power to combine a CCO with a term of imprisonment, under s 44(1), was not limited to a single offence, but extended, rather, to multiple offences. There was no reason in principle why the power conferred by that provision should be in any way circumscribed.
Additionally, it was submitted that it was inherently improbable that the legislature would have contemplated that where no term of imprisonment was to be imposed, a single CCO encompassing multiple offences could be ordered, but that once it was decided that a custodial term was required, in combination with a CCO, the effect of s 44(1) was that a single CCO would no longer be available.
It was next submitted that the principles stated in Director of Public Prosecutions v Felton,[2] upon which the applicant’s written case partly relied, had no application to the present matter. Felton related to the inability of an appellate court to examine the appropriateness of the degree of cumulation in an aggregate sentence of imprisonment, where such an aggregate term did not reveal either the individual orders, or the orders as to cumulation.
[2](2007) 16 VR 214.
However, the respondent noted that Felton had been effectively reversed by the introduction of s 9(4) of the Sentencing Act. That section provides that, where a court imposes an aggregate sentence of imprisonment, it is not required to identify separate events giving rise to specific charges, and not required to announce the sentences that would have been imposed for each offence, had separate sentences been imposed. Nor, pursuant to that section, is the court required to announce whether those sentences would have been imposed concurrently or cumulatively.
It was next submitted that, since the introduction of the CCO regime, it had been the almost invariable practice of sentencing judges in this State, when minded to make an order for a CCO in respect of multiple offences, to do so by way of a single CCO, rather than a series of separate CCOs. To require sentencing judges to announce individual parts of an order would be impractical. It would also largely defeat the purpose of imposing CCOs for offenders who have committed a large number of individual offences. To require judges to impose separate CCOs for each offence would be unfair because that would expose an offender made subject to such an order liable to punishment for multiple breaches.
Ground Two — the learned sentencing judge erred in finding the applicant’s offending involved disguise
Applicant’s submissions
The applicant submitted, albeit somewhat faintly, that the sentencing judge had erred in finding, as it was contended he had, that the applicant’s offending specifically involved the use of a disguise. As previously indicated, although Foote wore a balaclava during the commission of the robbery, the applicant did not.
The applicant relied on the following passage taken from the sentencing judge’s reasons:
Against the matters to be taken into account in mitigation must be balanced the fact that these are serious offences, as the maximum penalties imposed by Parliament show. Your offending behaviour not only involved disguise, but also the use of a knife at a railway station at night in close proximity to your vulnerable female victims and where members of our community should feel and be safe from threatening behaviour by intoxicated armed criminals. It involved substance abuse (you were affected by ice and alcohol), robbing your victim of her property, and the use of her bank card on six subsequent occasions. As [NW]’s statement shows and viewing of the CCTV confirms, the victims were terrified by your actions. So much so that one of them leapt onto the railway line to escape.[3]
[3]DPP v Sankey (Unreported, County Court of Victoria, Judge Wischusen, 29 June 2016), [27] (emphasis added).
The applicant submitted that the judge’s reference to his having committed the armed robbery whilst disguised signified that his Honour had viewed that very fact as an aggravating factor. It was submitted that the same error may have contributed to his Honour’s finding that, so far as the applicant was concerned, the offending must have involved ‘at least some planning’.
It was submitted that this meant that the applicant had been sentenced on the basis that his offending involved a measure of sophistication and forethought which was actually lacking.
Respondent’s submissions
The respondent submitted that, on the plea, the case had been put on the basis that the applicant and Foote were engaged in a joint criminal enterprise. The prosecutor made it clear, in both his opening and closing submissions, that Foote alone was disguised, and the judge would have been well aware of that fact.
It was submitted that the passage from the sentencing remarks upon which the applicant relied should not be read as though it contained a literal and precise description of exactly what had occurred, but rather in a broader, and more common sense manner. When his Honour referred to the fact that the offending involved the use of a disguise, he was surely referring to the offending conduct of both the applicant and Foote in an overall sense, and not attempting to differentiate the role played by each offender.
In stating that the armed robbery involved ‘at least some planning’, it was submitted that, once again, the judge was doing no more than referring in that same broad, common sense, manner to the joint criminal enterprise in which both offenders had been engaged.
Ultimately, the judge concluded that the ‘objective seriousness of the offending’ was such that nothing short of a term of imprisonment would have sufficed. Plainly, his Honour considered that the imposition of a CCO alone, for which the applicant contended, would not sufficiently meet the various sentencing principles that were applicable to this case.
Finally, the respondent submitted that the applicant had clearly played an active role in the commission of the armed robbery. He was no mere secondary participant. There was no suggestion that he was unaware, before the offence took place, of the fact that Foote was both armed and had with him a balaclava which could be used as a disguise.
Ground Three – the learned sentencing judge erred in his assessment of the applicant’s prospects of rehabilitation
Applicant’s submissions
In support of his contention that this sentence was manifestly excessive, the applicant submitted that the sentencing judge had given insufficient weight to various mitigating factors that were present. He had been estranged from his family, and homeless from the age of 14, although he had recently reconciled with his mother and moved back home with her. He suffered from a borderline intellectual disability, bipolar disorder and ADHD. His earlier childhood offending, to which I shall shortly return, had taken place in the context of his homelessness and longstanding drug addiction.
In addition, it was submitted that there had been a gap of nearly two years between the offending in this case and date at which the applicant came to be sentenced for these offences.
Although the applicant had committed further offences during that period of two years, mainly driving offences (but also driving whilst his license was suspended, and failing to stop after an accident) as well as a breach of an intervention order taken out on behalf of his sister, these offences were of an entirely different order from the armed robbery and deception offences. In particular, the applicant’s subsequent offending, had nothing to do with his previous use of ‘ice’.
It was submitted that, during that two year period, the applicant had re-ordered his life. He had returned to live with his family, stopped drinking to excess and ceased using ice, attended to his medical needs, gained employment, no longer mixed with former associates and generally begun to lead a more settled life.
The sentencing judge accepted that the present offending had occurred in the context of the applicant’s ice addiction, which the applicant claimed to have overcome. The applicant submitted that it should be inferred that the armed robbery had been an isolated and spontaneous event, specifically linked to his association with Foote, who happened to be the boyfriend of the applicant’s sister at the relevant time.
The applicant next submitted that the sentencing judge had incorrectly treated his ongoing use of cannabis as detracting from his prospects of rehabilitation. He argued that there was no connection between his cannabis consumption and any of this offending, save for the offending inherent in the very use and possession of cannabis itself.
The applicant submitted that he had a borderline intellectual disability and weak verbal comprehension. As such, the trial judge had given too much weight to his statement made to a Corrections Officer in the course of preparing a CCO suitability assessment report that he had played only a ‘minor’ role in the offending. There was, in any event, a proper basis for differentiating the applicant’s role from that of Foote. After all, Foote had been wearing a disguise, and it was he, and not the applicant, that had been armed with a knife.
It was acknowledged that the applicant had been the ‘front man’ for the conduct that gave rise to the charges of obtaining property by deception, but these were of far less significance that the charge of armed robbery. Additionally, the applicant had pleaded guilty at an early stage, otherwise acknowledged his offending to his psychologist, and generally accepted responsibility for his conduct. In these circumstances, it was said not to have been reasonably open to the sentencing judge to have placed the weight that he did upon the applicant’s statement as to his perceived role in determining that he had limited insight into his offending. It was that finding, said to have been erroneously made, that led his Honour to conclude that the applicant had only ‘guarded’ prospects of rehabilitation.
The applicant further submitted that, even though he had what seemed to be a highly relevant, and particularly bad, prior conviction (for armed robbery), material in the possession of the prosecution indicated that he had only played a relatively minor role in the commission of that offence. The applicant had just turned 17 when he committed that armed robbery. That was five years before he committed the present offence, and seven years before he fell to be sentenced for these matters.
Respondent’s submissions
The respondent submitted that the sentencing judge had been entitled to conclude that the applicant’s prospects of rehabilitation were ‘guarded’. The basis for that conclusion was the applicant’s continued and acknowledged cannabis dependency, as well as his lack of insight when he discussed the incident with the representative of the Department of Corrections Officer. In addition, the applicant’s previous convictions, including that for armed robbery, did not auger well in terms of rehabilitation.
The respondent further submitted that the sentencing judge had been fully entitled to have made the ‘guarded’ finding as to rehabilitation that he did. That finding had to be assessed against the backdrop of the applicant’s prior and subsequent convictions.
Ground 4 – failing to moderate general or specific deterrence on account of the applicant’s intellectual deficits
Applicant’s submissions
The applicant submitted that, even though the sentencing judge appeared to have allowed some moderation of general and specific deterrence on account of his youth, he had failed adequately to take into account his borderline intellectual disability.
The applicant submitted that he had a full scale IQ of 77, which placed him in the borderline range of intellectual disability. The sentencing judge was, of course, aware of that fact and noted it in his sentencing remarks.
The plea was put on the basis that the offending occurred in the context of ice and alcohol abuse, and for that reason no attempt was made to invoke the principles laid down in Verdins.[4] The applicant accepted that it was this abuse, and not his particular intellectual deficits, that provided the impetus for the offending. It was not suggest that he did not fully appreciate, at the time, that his conduct was wrong.
[4]R v Verdins (2007) 16 VR 269.
It was submitted, however, that the applicant’s intellectual deficits were relevant in understanding why, and how, he should find himself acting in concert with another to commit an offence as serious as armed robbery. It was significant that neither, on this occasion, nor on the previous occasion of the previous armed robbery, had he acted alone. On neither occasion, it was submitted, had he been the principal offender.
The applicant further submitted that his capacity to cope with stress and problems was poor, as documented by the forensic psychologist who had assessed him. He had many such stresses stemming from his mental health, his difficult upbringing and his years of homelessness. In this context, his decision to use illicit drugs reflected his limited coping skills which, in turn, stemmed from his intellectual deficits.
Finally, the applicant submitted that those deficits were also relevant to specific deterrence, and to determining the form of sanction that might most effectively deter him from offending again.
Respondent’s submissions
The respondent submitted that the requisite link between the applicant’s mental impairment, such as it was, and the offending had not been demonstrated.
The respondent noted that the applicant had not sought to enliven Verdins principles with respect to moderation of both general and specific deterrence. In fact, his counsel effectively eschewed reliance on those principles by submitting that the offending could be explained by the applicant’s excessive drug use.
The respondent further submitted that the judge had taken into account the applicant’s mental health in a ‘general sense’ when determining sentence. However, it was only now that the applicant sought to argue that that his mental deficits demanded a moderation of the principles of specific and general deterrence.
The respondent next submitted that, even if an offender’s illness is clearly outlined in a relevant report, that of itself would not be sufficient to enliven Verdins. As Redlich JA said in Wassef v R:
Even if there had been evidence before the sentencing judge that may have supported the application of one or more of the principles discussed in Verdins, it was not relied upon in any relevant way. The submissions of counsel for a party must be sufficiently explicit to make clear to the sentencing judge that one or more of those principles are relied upon. The reasons why a party seeks to have the sentencing discretion exercised in a particular way must be made apparent to the sentencing judge. Had the bare opinion provided a basis for enlivening the principles in Verdins, it was rightly conceded in oral argument that as it had not been so identified during the plea, the sentencing judge was not obliged to treat such a matter as mitigating the sentence. [5]
[5][2011] VSCA 30, [18].
The respondent next submitted that there was no evidence suggesting that the applicant’s intellectual deficits prevented him from appreciating the wrongfulness of his conduct. The severity of his symptoms had not prevented him from obtaining gainful employment. In those circumstances, specific deterrence was a factor to be accorded appropriate weight.
Finally, the respondent submitted that the applicant’s intellectual deficits were not such as to reduce the importance of general deterrence as a relevant sentencing factor. The armed robbery was committed in a public place, frequented by people day and night. General deterrence remained a paramount sentencing consideration.
An additional submission
Although the applicant did not rely upon this point in any of his proposed grounds of appeal, he sought to argue that the sentencing judge had fallen into error in not fixing a non-parole period so far as the term of imprisonment was concerned.
That point was raised by the Crown in its written submissions. The author of those submissions noted that his Honour may not have considered the application of s 11(2) of the Sentencing Act, which provides that in fixing a sentence of imprisonment of less than two years, but not less than one year, the court may, as part of the sentence, fix a non-parole period.
It is true that the question whether to fix a non-parole period was not addressed by the judge. His Honour was not asked, on behalf of the applicant, to do so. It was noted by the prosecutor who prepared the written case for the Crown that in Boulton v The Queen this Court had observed that ‘there are significant conceptual and practical difficulties in such a combination [a CCO combined with a non-parole period], and that the sentencing court should ordinarily treat them as alternatives.’[6] Similar views have subsequently been expressed from time to time in later cases. Nonetheless, as the written case observed, the Act itself seems to allow a sentence to include both a non-parole period and a CCO, and there might conceivably be times when that could be the appropriate course.
[6](2014) 46 VR 308, 352 (‘Boulton’).
No application was made to amend the proposed grounds of appeal. Nonetheless, I shall deal with the point in my concluding remarks.
Conclusion
In my opinion, leave to appeal should be refused.
The argument in support of ground 1 is, of course, of a highly technical nature. It was conceded, quite properly, that there was no doubt at all that the sentencing judge intended the applicant to serve 12 months’ imprisonment followed by a period of 18 months under the supervision of a CCO. It was further conceded that this result could easily have been achieved by adopting a slightly different form of wording, when imposing sentence.
That makes the point one of little substantive merit. Nevertheless, if it be true that the judge lacked power to make the orders that he did, I would certainly grant leave to appeal.
In my view, the combination of ss 7, 40(1) and 44(1) of the Sentencing Act does not preclude a sentencing judge from combining a term of imprisonment with a CCO in respect of either a single offence, or multiple offences. It would be strange indeed if that were the effect of these provisions. Nothing in the text suggests that the course adopted in this case contravened the Act, and there are strong reasons why, as a matter of policy, a judge should have the power to do precisely what his Honour did. I do not consider the contrary arguments to be sufficiently strong to warrant the grant of leave.
As regards ground 2, as previously indicated, this point was only faintly pressed. The reasons were obvious. It is without merit.
Grounds 3 and 4 can be considered together. The judge was perfectly entitled, in my view, to find as he did that the applicant’s prospects of rehabilitation were ‘guarded’. I accept the respondent’s submissions regarding ground 3.
I also accept the respondent’s submissions regarding ground 4. The applicant did not seek to invoke Verdins, either directly or indirectly. At the same time, the judge did moderate the sentence to give some weight to the applicant’s intellectual disability and the additionally burdensome nature of incarceration upon him.
Finally, the point raised by the Crown in its written case regarding the failure to advert to the possible fixing of a non-parole period has no substance. It would be surprising, in the face of the observations in Boulton, if his Honour had fixed a non-parole period, as well as imposing a CCO. In any event, he was not asked to do so. Nor was any point made of his failure to have done so when the applicant was sentenced.
It is for these reasons that I consider that leave to appeal should be refused.
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