Sharkey v The Queen

[2010] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0883

JASON SHARKEY

v

THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	20 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 273
JUDGMENT APPEALED FROM	R v Sharkey, (Unreported, County Court of Victoria, Judge Pilgrim, 15 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Theft – Armed Robbery – Crown concession of error – Concession accepted – Appeal allowed and appellant re-sentenced – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Rainer Martini & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. Jason Sharkey, a man now aged 32, pleaded guilty to a count of theft (of a motor vehicle, on 26 February 2009 - count 1) and a count of armed robbery (of cash and cigarettes from a service station whilst armed with a kitchen knife, on 3 March 2009 - count 2).  He was sentenced (in substance though not in form) in the County Court on 15 October 2009 to six years’ imprisonment on the count of armed robbery, to 18 months on the count of theft, with ’12 months [of the latter sentence] to be served concurrently with the sentence imposed on count 1’.  The total effective sentence was six years and six months.  The judge fixed a non-parole period of four years’ imprisonment.  He cancelled any driving licence held by the appellant, and disqualified the appellant from obtaining any licence for a period of four years and six months.  He declared that, had the appellant not pleaded guilty –

35… on Count 1 I would have imposed a prison term of seven years with a minimum term of five years.  Count 2 has been made virtually concurrent with Count 1.  I have a (sic) set a minimum term as you well know.

Grounds of appeal

1. Now Sharkey appeals by leave.  He relies upon the following grounds:

GROUND 1:   The Learned Sentencing Judge erred in failing to have sufficient regard to the appellant’s plea of guilty.

GROUND 2:   The sentence imposed is manifestly excessive.

GROUND 3:   The Learned Sentencing Judge erred in his consideration of the period for which the appellant should be disqualified from driving.

Circumstances of offending.  Sentencing remarks

1. The circumstances of the offending were described this way by the learned sentencing judge –

2Mr Sharkey, it was between 11 pm on Thursday, 26 February 2009 and 8.30 am on Friday, 27 February that you went to 4 Valley Rise, Hampton Park.  You there stole a 1989 Mazda 929 motor car, registered number PQC-560.

3On Thursday a week later, 3 March 2009, at approximately 2.20 am you drove this stolen Mazda to the United Service Station at 1215 Stud Road, Rowville.  You there entered the console shop area of the service station armed with a knife.  That knife was described as a large kitchen knife with a 20 centimetre long silver blade.  You produced that knife and said to the attendant Barath Kumar Rayapudi, ‘Give me the money, give me the money and I won’t do anything to you.’

4You asked for $50 notes and for $20 notes and for the coins to be poured from the till into your bag.  You then asked for Winfield Red Cigarettes and Mr Rayapudi then handed you two packets of these cigarettes.  You departed the premises driving off in the stolen Mazda.  These circumstances are all recorded on a closed circuit security video film kept at that service station.

1. The appellant was soon identified as the armed robber.  He was arrested on the day that the offence was committed.  At interview, he maintained silence.  But he pleaded guilty to the instant offences at the first available opportunity, and the learned sentencing judge accepted that his plea was indicative of remorse.

1. Other than the matters just mentioned, I should notice that in his sentencing remarks the learned judge –

(1)       Identified a theme in the appellant’s life – which included a significant prior criminal history.  It was ‘a long and extensive drug addiction’, for which he had sought and received treatment – methadone and, for several years before the instant offending, prescribed antidepressants.

(2)       Stated that drug use from about age 14 had led to the appellant leaving school after completing year 10.  Drugs used then and in succeeding years had been cannabis, LSD, heroin, (to which he became addicted), Valium and Xanax.

(3)       Noted that prior offending – the appellant had a long history of thefts and other offences of dishonesty – had been related to his drug addiction.  Money gained fed the appellant’s habit.

(4)       Stated that the appellant’s prospects of rehabilitation, in the circumstances, ‘cannot be viewed as positive’.

(5)       Accepted, as I understand it, that the appellant suffered from ‘an adjustment disorder with mixed disturbance of emotions and conduct’.

(6)       Apparently accepted that the present offences occurred when the appellant felt disinhibited in consequence of taking Xanax.

(7)       Stated that he took account of what was said in Verdins, and had moderated sentence on that account.

(8)       Nonetheless, stated that the appellant was ‘an appropriate vehicle for both specific deterrence and general deterrence’.

Two preliminary matters

1. I should mention two problems with the sentence immediately.  First, the learned sentencing judge pronounced sentence incorrectly.  He identified the armed robbery as count 1 and the theft as count 2, and sentenced on that basis.  The record of orders is also incorrect in that respect.  Even if the sentence was otherwise without error – and it is not – the orders would have to be corrected to reflect the judge’s intention.

1. Second, the s 6AAA declaration which the judge made was obscure.  I have already set out the text of what his Honour said.  He may have meant that he would have made the sentence on the count of theft wholly concurrent with the sentence on the count of armed robbery.  If so, it is hard to say why that should be so, particularly when, the appellant having pleaded guilty, his Honour in fact cumulated part of the sentence on the count of theft on the armed robbery count.  The record of orders, I should add, expressed in general terms, does not assist an understanding of what his Honour would have done in the postulated circumstances.

Ground 1

1. Despite the partial obscurity of the s 6AAA declaration, it can be said that this is yet another instance in which, despite an early plea of guilty and accepted remorse, a sentencing judge made a s 6AAA declaration which reveals, on its face, a minimal discount in the sentence passed in recognition of the plea.  The revealed discount is indicative sentencing error.  But it is unnecessary to decide whether, on that account alone, the sentencing discretion should be re-opened;[1] because the respondent accepts that the sentence passed on the count of armed robbery was outside the range.

   [1]Cf R v Howard [2009] VSCA 281, [15]-[16].

Ground 2

1. The offending was admittedly serious.  It was committed by an offender with a lengthy and relevant criminal history.  The appellant had been before the Courts on 18 occasions between January 1997 and February 2009.  His offending had included very many instances of theft (some 59), also other offences of dishonesty (handling stolen goods, obtaining property by deception, going equipped to steal, being in possession of property suspected of being stolen, attempted theft, burglary and armed robbery [three counts, dealt with by the County Court in February 2005]).  By my reckoning, he had been sentenced to gaol (sometimes the sentence was wholly or partly suspended) on 16 occasions;  and had breached orders (suspended sentences and community based orders) on four occasions.  The longest sentence imposed upon him had been in February 2005 – three years and nine months with a non-parole period of 16 months.

1. Although the offences, particularly the armed robbery, were serious, and that the appellant had a significant history of relevant prior offending, counsel for the Crown helpfully submitted that although there was nothing wrong with the sentence on the count of theft (a submission with which appellant’s counsel did not disagree), the sentence for the armed robbery was outside the permissible range. The appellant’s past offending, and his failure to take opportunities for rehabilitation which the Courts had offered him, had made it proper to impose a sentence beyond the median three years revealed by the relevant sentencing snapshot;  but not a sentence which was twice the median.  The appellant was entitled to rely upon his early plea of guilty, indication of remorse, compromised mental state (making Verdins in point), the commission of the offence whilst on prescribed medication, this removing or reducing his inhibitions, and the fact that the stolen property was recovered.

1. I agree with the submissions made for the Crown, which essentially replicated the submissions made for the appellant.  The sentence imposed on the count of armed robbery was in my opinion impermissibly high.

Ground 3

1. The period of licence disqualification ordered pursuant to s 89(4) of the Sentencing Act 1991 (Vic) exceeded the earlier possible release date under the judge’s orders by about ten months. There is no bar to such an order being made after proper analysis. Whether or not there was a deficient analysis in this case need not be considered. The appellant must be re-sentenced, and the period of licence disqualification will need to be considered in a different context.

Re-sentencing

1. I propose that the appeal be allowed, the sentence and the order made under s 89(4) of the Sentencing Act be set aside, and that the following sentence be passed in lieu thereof.  On count 1, sentence the appellant to 18 months’ imprisonment.  On count 2, sentence the appellant to four years’ imprisonment.  Cumulate eight months of the sentence on count 1 on count 2.  The total effective sentence will be four years and eight months’ imprisonment.  Fix a non-parole period of three years and six months’ imprisonment. 

1. But for the plea of guilty, and assuming that the appellant had been convicted, I would have sentenced him to 22 months’ imprisonment on count 1 and five years’ imprisonment on count 2.  I would have cumulated eight months of the sentence on count 1 on the sentence on count 2.  The total effective sentence would have been five years and eight months.  I would have imposed a non-parole period of four years and six months.

1. The proper approach to determining an appropriate period of disqualification was summarised by Tadgell JA in R v Lefebure[2] in a passage which I cited in R v Novakovic.[3]  Thus:

   [2](2000) 112 A Crim R 41.

   [3](2007) 17 VR 21, 32 [63].

[7] … counsel for the appellants submitted that the learned sentencing judge had not been directed to, and did not himself take account of, the relevant matters to be taken into account in deciding whether a convicted person should be disqualified for any period of time from obtaining a driving licence.  We were referred to five cases in which the matter has been canvassed to a greater or lesser extent.  They were R v Tantrum (1989) 11 Cr App R (S) 348 at 349, R v George(unreported, Court of Criminal Appeal, Vic, No 155 of 1989, 21 September 1989), R v Boeyen(1990) 50 A Crim R 482, R v Bazley(unreported, Court of Appeal, Vic, No 9 of 1997, 21 August 1997) and Bell (1999) 30 MVR 115.  From these decisions I think it may be said that the following considerations are to be taken into account on the imposition of a period of disqualification.  First, since the disqualification falling to be imposed contains a punitive element, it is necessary to evaluate the extent to which disqualification is required in the total punishment in order to mark the dissatisfaction of the community with the offence.  In making that evaluation, aggravating or mitigating factors are to be considered, and also is to be weighed the length of the disqualification compared with any period of custody which is ordered.  It is not necessary that the two should be equated in length.  Sometimes it is desirable, balancing all the facts, that a period of disqualification will exceed the length of the period of any custody.

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[8]Next, it is usually appropriate that, in assessing the necessary length of any disqualification period, the convicted person’s dependency on a driving licence should be taken into account.  To do so it is usually necessary to ensure that the prospects of rehabilitation of the convicted person will not be unduly hampered.  Such considerations as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment are to be considered.

1. In the present case, the judge concluded, unsurprisingly, that the appellant’s prospects of rehabilitation could not be viewed as positive.  It was not shown that he had any particular legitimate need for a motor vehicle licence.  He had not been

employed for many years.  Further,  his prior criminal history suggests that he often enough had used a motor vehicle when unlicensed, or when disqualified, in the commission of other offences – as occurred in this instance.  In the circumstances, imposition of a period of disqualification ending some time after the appellant first becomes eligible for parole is justified.  Counsel for the appellant did not contend to the contrary.  In the past, an order for disqualification for a period extending six months beyond the appellant’s earliest possible release date was made.  I would make a similar order now.

WEINBERG JA:

1. I agree.