Shok v The Queen
[2020] VSCA 294
•20 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0189
| AGOC DENG SHOK |
| v |
| THE QUEEN |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 November 2020 |
| DATE OF JUDGMENT: | 20 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 294 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1447 (Judge M Sexton) |
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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of nine offences – Three counts of theft (12 months, 1 month, 1 month) – Attempted aggravated burglary (3 years 6 months) – Armed robbery (5 years) – Dangerous driving while pursued by police (12 months) – Use of imitation firearm (12 months) – Driving unlicensed (3 months) – Commit indictable offence on bail (1 month) – Total effective sentence 6 years 7 months – Non-parole period 3 years 9 months – Whether sentences for attempted aggravated burglary and armed robbery manifestly excessive – Whether total effective sentence manifestly excessive – Whether non-parole period manifestly excessive – Whether judge gave mitigating factors adequate weight in sentence – Leave refused – Crown conceded sentence for driving unlicensed manifestly excessive – Incorrect maximum penalty provided to judge – Leave granted – Appeal allowed – Applicant resentenced to one month to be served concurrently – Orders made addressing failure to order mandatory licence disqualification in relation to two charges.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Karapanagiotidis | David Barrese & Associates Criminal Defence Lawyers |
| For the Respondent | Mr P Bourke SC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
On 7 January 2018, the applicant used an imitation semi-automatic handgun in an attempted aggravated burglary of a hotel room and, later that day, an armed robbery at a 7-Eleven store. He drove from the scene of the armed robbery by car and, seeking to flee from police who were in pursuit, drove dangerously, colliding with two other vehicles. In addition to the three serious offences of attempted aggravated burglary,[1] armed robbery[2] and dangerous driving while pursued by police,[3] the applicant also committed associated, less serious offences. He had stolen the car he was driving five days before,[4] he was driving unlicensed,[5] he stole petrol from two service stations,[6] his use of the imitation firearm was itself an offence,[7] and he was on bail at the time.[8]
[1]Charge 2.
[2]Charge 5.
[3]Charge 6.
[4]Charge 1.
[5]Summary charge 9.
[6]Charges 3 and 4.
[7]Charge 7.
[8]Summary charge 18.
His conduct resulted in the laying of nine charges (including two summary charges) to which the applicant pleaded guilty. On 4 September 2019 he was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1. Theft[9] 10 years 12 months 3 months 2. Attempted
aggravated burglary[10]
20 years 3 years, 6 months 12 months 3. Theft[11] 10 years 1 month — 4. Theft[12] 10 years 1 month — 5.
Armed robbery[13]
25 years
5 years
Base
6. Dangerous driving while pursued by police[14] 3 years 12 months 2 months 7. Prohibited person use imitation firearm[15] 10 years or 1,200 penalty units 12 months 1 month Summary charges
9.
Drive motor vehicle without licence[16]
3 months or 25 penalty units[17]
3 months
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18. Commit indictable offence whilst on
bail[18]
3 months or 30 penalty units 1 month 1 month Total Effective Sentence: 6 years and 7 months. Non-Parole Period: 3 year and 9 months. Pre-sentence detention
declared:582. 6AAA Statement: 10 years’ imprisonment with a non-parole period of 8 years. Other relevant orders:
· Disposal orders.
· Cancellation of all Victorian licences and/or permits and disqualification for 18 months.
[9]Crimes Act 1958 s 74(1).
[10]Ibid ss 77(1) and 321M.
[11]Ibid s 74(1).
[12]Ibid s 74(1).
[13]Ibid s 75A(1).
[14]Ibid s 319AA(1).
[15]Control of Weapons Act 1990 s 5AB(2).
[16]Road Safety Act 1986 s 18(1)(a).
[17]As discussed below, the respondent concedes that the judge was informed (in error) that the maximum penalty was 6 months’ imprisonment or 60 penalty units.
[18]Bail Act 1977 s 30B.
He seeks leave to appeal on one substantive ground, namely, that the individual sentences on charges 2 and 5 are manifestly excessive. For the reasons that follow we are unable to uphold that ground.
He also seeks leave to challenge the sentence of 3 months’ imprisonment on summary charge 9, which was the maximum prescribed penalty for that offence. It was imposed after the judge was wrongly told that the maximum penalty was 6 months’ imprisonment. It will be necessary to correct that sentence. However, as the sentence on summary charge 9 was wholly concurrent, the applicant accepts that success on ground 2 is not enough to disturb the total effective sentence or non-parole period that were imposed by the judge.
Grounds of appeal
1.The individual sentences imposed on counts [2] and [5], the total effective sentence and non-parole period are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
Particulars
(a)The sentence imposed is excessive in that the learned sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant’s case, including the following:
i.Plea of guilty.
ii.Refugee background and significant childhood trauma and instability.
iii.Significant period on remand, representing to date his longest period in adult custody (582 days).
iv.Diagnosis of Post-Traumatic Stress Disorder and the application of Verdins principles.
The offending
There is no doubt that the offending, particularly that caught by charges 2, 5 and 6, was serious. It is only necessary to refer to the following brief account to demonstrate why that is so.
At approximately 6:44 am on 7 January 2018, the applicant arrived in a stolen Mercedes car at a hotel in Doveton and knocked on the door of a hotel room. It was occupied by two men who were not known to the applicant. When one of the occupants opened the door, the applicant asked if any mail had turned up. The man replied that he had been there for two months and no mail was there, and attempted to close the door. The applicant pulled out the imitation handgun and was pushing on the door. The applicant said something like ‘you’ve got five seconds to open the door or I’ll put a bullet in your head.’ The victims heard the applicant start counting and managed to bolt the door shut before retreating to the bathroom and calling the police. The applicant then left.
Just over six hours later, the applicant stole petrol from two service stations.
A short time later, he arrived at a 7-Eleven store in Cranbourne North. He ran into the store, pointing the imitation handgun in front of him. He had disguised his appearance by pulling a hoodie over his head and covering his face with a bandana or scarf. The applicant moved in front of the four customers lined up at the counter and pointed the gun at the staff member. There were numerous other customers in the store who began to scream and flee the shop. The applicant threatened the staff member with the gun, saying: ‘give me the money, I have a gun, I will shoot you’, telling him to ‘hurry up’. The staff member opened the till and placed it on the counter. The applicant placed the handgun on the counter to load the money ($600) into a bag and then left, taking the money and the handgun with him.
A short time later, the applicant was observed by police in a patrol car, who commenced a pursuit. In order to evade capture, the applicant drove through a bottle shop car park, over a garden bed, and back onto the road. A second police vehicle took up the pursuit. The applicant was estimated to be travelling at about 95 km/h in a 60 km/h zone. As he approached a red light where two cars were stationary side by side, the applicant attempted, unsuccessfully, to drive between them. The applicant’s vehicle collided with them both, causing considerable damage to it; the force of the collision dislodged one of its front wheels. Undeterred, the applicant continued through the red light and turned left, while the police in pursuit stopped to assist the drivers of the other two cars. There was only minimal damage to those cars and no injuries to the drivers.
A short time later, the applicant abandoned the car and proceeded on foot through a retirement village. He then made his way to a bus stop where police spoke to him before he left the scene by bus.
The applicant was subsequently charged and pleaded not guilty. The prosecution case relied on CCTV footage and fingerprints at the hotel and in the car, as well as forensic analysis of items left by him at the retirement village and in the car, and DNA evidence derived from those items. He was committed for trial. After an adverse evidentiary ruling by the trial judge, the applicant changed his plea to guilty.
The reasons for sentence
In a careful and detailed set of reasons, the judge observed that the offending was very serious.[19] The judge noted the applicant’s use of a disguise, his active use of the imitation handgun during the attempted aggravated burglary and the armed robbery, and the threats he made as aggravating factors.[20] As well, the judge noted the applicant’s significant and relevant criminal history from at least 2010 which, based on the material before the judge, included three convictions for armed robbery in the Children’s Court and nine convictions for unlicensed driving, six convictions for theft of a car, and many other dishonesty convictions as well as driving, drug and assault related offences from appearances in both the youth and adult jurisdictions.[21]
[19]DPP v Deng Shok [2019] VCC 1447, [16] (‘Reasons’).
[20]Ibid.
[21]Ibid [18].
Given the seriousness of the offending and the significant prior history of the applicant, it is unsurprising that, both before the judge, and in this Court, the applicant’s personal history assumed great significance. It is necessary to refer to it in some detail, as it formed the centrepiece of the applicant’s submissions in this Court.
The applicant’s background
The applicant was 23 at the time of the offending and 24 when he was sentenced. He was born in North Sudan. His country of birth has been significantly blighted by years of civil war and unrest. As a young child the applicant saw people who had been shot and killed. The applicant’s family fled to Egypt when the applicant was about five years old and remained in a refugee camp there for one or two years before coming to Australia as refugees. In Egypt the applicant was subjected to racial vilification.
His parents separated within a couple of months of their arrival in Australia and he became estranged from his father as his mother did not permit contact. After a period of unemployment, his mother gained employment as a cleaner. His mother was prone to violent outbursts, rendering the home unstable. As a result, the applicant ran away at the age of 12. He lived on the streets, had a short period of living with his father, who was largely absent, and then again became homeless, squatting with friends. He was placed in residential care for several years before returning to the family home.
The applicant engaged in offending that brought him within the youth justice system. He was incarcerated at Malmsbury Youth Justice Centre for a number of months before being given a home on release. He then breached parole and was returned to his mother’s home. The applicant said that he was basically living on the street prior to his arrest and had not seen his father for two years.
The applicant’s offending has occurred in a context of substance abuse. The applicant used alcohol from the age of 13 or 14, cannabis from the age of 14 or 15 and methylamphetamine from the age of 17. He was using in excess of one gram of methylamphetamine per day prior to his arrest on the present charges.
The judge observed:
From a young age, you were keeping away from home, had no supervision, began chroming, binge-drinking, mixing with older young men, and self-harming. You began using ice at the age of 17 years. Your schooling was interrupted with the cycle of absconding, being at home, conflict arising, leaving again, drug use, and compounded by a negative view of the authorities. Eventually, to your credit, you passed Year 10 and completed part of a bricklaying apprenticeship. Unfortunately that was interrupted by time spent in the Youth Justice System and, because of your issues, your application to the apprenticeship requirements was inconsistent.[22]
[22]Ibid [24].
In a report tendered on the plea, Dr Aaron Cunningham, a forensic psychologist, concluded that the applicant suffers from Post-Traumatic Stress Disorder (‘PTSD’), for which he was predisposed by the exposure to war-related trauma in Africa. Dr Cunningham says that the condition was ‘precipitated by the abuse and instability in his family home’, which led to periods of homelessness and abandonment. The applicant ‘formed negative peer associations on the streets and in residential care and was vulnerable to the abuse of drugs. He has since struggled to break out of the cycle of offending and drug abuse.’
Although Dr Cunningham did not accept that the PTSD was directly related to the offending, he was of the opinion that the condition increased reckless and self-destructive behaviour. Dr Cunningham observed that: ‘in the context of his trauma and abandonment, [the applicant was] poorly equipped to cope with life stressors and engage in prosocial consequential thinking.’
From a psychological perspective, Dr Cunningham said that in his opinion ‘long term periods of incarceration would perpetuate his trauma.’ Dr Cunningham said that the applicant ‘would benefit from a disposition that facilitated his rehabilitation.’ He noted that the applicant had been in a two or three year relationship with a young woman who did not abuse drugs or alcohol. The applicant ended that relationship when he was incarcerated and stated that she remains supportive. Dr Cunningham observed that the applicant had ‘expressed openness with regard to engaging with treatment for his trauma’ and that ‘[h]e would require stable accommodation and employment or positive community engagement to provide stability and structure.’
Dr Cunningham said that exposure to trauma and violence in the prison system would likely aggravate and perpetuate the applicant’s trauma. He referred to the fact that the applicant had been involved in fights in prison and had been placed in isolation. He observed that ‘[d]isconnection from others would worsen his symptoms of trauma.’ Those symptoms included symptoms of depression, suicide attempts and refusing food.
The judge accepted all of the opinions expressed by Dr Cunningham and was satisfied that the diagnosis of PTSD and its effects would make serving a term of imprisonment harder for the applicant than for someone without such a diagnosis and background.[23] That opinion was bolstered by the applicant’s lamentable experience on remand which has entailed violent interactions with other prisoners and an inability to control his reckless behaviour, resulting in periods of solitary confinement.
[23]Ibid [29].
The judge took into account the applicant’s plea of guilty for its utilitarian value and demonstration of remorse.[24] Her Honour also noted the signs of remorse and insight based on what the applicant had told Dr Cunningham and the corrections officer who assessed him for a CCO.[25]
[24]Ibid [32].
[25]Ibid [33].
The judge said that the applicant’s background and PTSD impacted on his moral culpability, which she found to be lower than it would have been had the applicant enjoyed the advantage of a proper and stable upbringing without being subjected to the trauma, violence, disadvantage and dislocation which he had suffered.[26]
[26]Ibid [35].
The judge noted some positive steps towards rehabilitation but concluded that the applicant’s prospects were ‘guarded’.[27] The applicant was assessed as being suitable for a community correction order (‘CCO’) but notably, in the report, he was identified as being at ‘high risk of re-offending’.
[27]Ibid [25], [36].
Although the judge was prepared to have the applicant assessed for a CCO, and the assessment was positive, the judge concluded that the offending was ‘too serious’ to permit a combined sentence and CCO.[28] The judge acknowledged the importance of treatment and rehabilitation but concluded that this could not be the primary purpose of sentencing for such serious offending.[29] The judge placed emphasis on denunciation, deterrence, both specific and general, and the protection of the community.[30] In that respect, the judge found the likelihood of the applicant re-offending to be ‘high.’[31] In aid of rehabilitation the judge said that she would impose a longer parole period to enable the applicant to have longer term support as he re-enters the community.[32]
[28]Ibid [41].
[29]Ibid.
[30]Ibid.
[31]Ibid.
[32]Ibid [42].
Understandably, the reasons for sentence focussed on the more serious charges and the other charges were dealt with briefly. It is necessary to refer to two aspects. First, the judge was told that the maximum prescribed sentence for summary charge 9, driving without a licence, was six months’ imprisonment or 60 penalty units, and the judge imposed a sentence of three months, which was fully concurrent. In fact, the maximum penalty for that charge was three months’ imprisonment or 25 penalty units. That error is the subject of ground 2.
In addition, the judge did not make the mandatory orders disqualifying the applicant from obtaining a driver’s licence for a specified period of time with respect to charge 1 (theft of motor vehicle)[33] and charge 6 (dangerous driving while pursued by police).[34] Her Honour did, however, make an 18 month disqualification order in relation to summary charge 9.[35]
[33]Sentencing Act1991 s 89(4)(c).
[34]Ibid s 89(3)(c).
[35]Ibid s 89A(1)(c) and Road Safety Act 1986 s 28(1)(b) gave her Honour the discretion to do so.
Ground 1
The applicant submits that when proper regard is had to his plea of guilty, his traumatic and unstable background, the long period spent on remand and diagnosis of PTSD, which engaged the fifth and sixth limbs of R v Verdins,[36] the individual sentences on charges 2 (attempted aggravated burglary) and 5 (armed robbery), the total effective sentence and the non-parole period are manifestly excessive.
[36](2007) 16 VR 269; [2007] VSCA 102.
The applicant also submits that his traumatic and impoverished personal history and circumstances engaged the principles explained by the High Court in Bugmy v The Queen.[37]
[37](2013) 249 CLR 571; [2013] HCA 37.
In helpfully succinct oral submissions, counsel for the applicant focused on charge 5 and submitted that although the judge took into account all of the relevant matters urged on behalf of the applicant, those mitigating factors were not ultimately reflected in the sentence imposed on charge 2, the sentence imposed on charge 5, the total effective sentence and the non-parole period.
In relation to the armed robbery, counsel referred to a number of cases in which shorter sentences have been imposed with respect to offences of comparable gravity but without the constellation of matters in mitigation on which the applicant could draw.[38]
[38]DPP vYounan [2017] VSCA 207; DPP vMendelle [2018] VSCA 204; Lord v The Queen [2018] VSCA 52. In Lord sentences of five years and six years respectively were imposed on two charges of armed robbery that differed in levels of seriousness.
The respondent submits that the judge gave proper weight and consideration to the mitigating factors and imposed individual sentences, a total effective sentence and non-parole period that were within range.
In relation to the armed robbery, the respondent noted that there were a number of customers in the store who were terrified by the robbery. The applicant brandished the handgun, pointed it at the staff member and threatened to shoot. The respondent characterised it as a mid-range example of the offence and the applicant did not dispute this.
The respondent submits that the attempted aggravated burglary was not a low-level instance of the offence. The respondent pointed to the fact that the applicant fabricated a story in an attempt to enter the room, brandished the imitation handgun that the victims observed, uttered (in effect) threats to kill and tried to force open the door with an intent to steal, knowing that the victims were in the room. The respondent said that these efforts constituted an enthusiastic attempt to burgle victims who were unknown to the applicant and who would have been shocked and horrified to be confronted in this way. It called for the degree of cumulation and, in the circumstances, the 12 months selected by the judge was moderate.
It is convenient to deal first with the individual sentences imposed on charges 2 and 5, and to do so in reverse order.
The sentence on charge 5: Armed robbery
Plainly, armed robbery of a store in which there is both a staff member and a number of innocent shoppers present, and in which the disguised perpetrator uses an imitation handgun and threatens to shoot the staff member, is a serious offence.
The maximum penalty is 25 years. Such an offence is terrifying for the victims, extremely dangerous, and cannot be tolerated in a law abiding society. As Osborn J observed in DPP v Stevens,[39] such offending is ‘predatory in its violence and fundamentally destructive of the security and confidence in the law which those who operate facilities such as convenience stores are entitled to enjoy.’[40]
[39][2013] VSCA 187.
[40]Ibid [31].
The fact that the gun was an imitation made the offending less serious than if the applicant had been armed with a genuine, loaded weapon. However, brandishing an accurate replica of a handgun to commit two serious offences over the course of a day is a very dangerous activity. It is likely to provoke an armed response from police who have no way of knowing that the handgun is an imitation. More importantly, given how lifelike the replica was, the fact that it was an imitation would not have reduced the terror felt by the victims. Plainly, this was a serious example of armed robbery.
Even a short survey of cases in this Court show there to be a range of sentences for armed robbery, covering a diverse range of circumstances both in terms of the offence and the offender. For example, in DPP v Stevens,[41] this Court overturned a sentence of five years’ imprisonment on an offender who committed an armed robbery on a newsagent with a large knife, on the ground that it was manifestly inadequate. A term of seven years’ imprisonment was substituted. The offender in that case had 16 prior convictions for armed robbery spanning a decade.
[41][2013] VSCA 187.
In Younan v The Queen,[42] the offender committed two armed robberies of a hotel and a conspiracy to commit a third. The offences were committed in company by masked offenders with one offender armed with a rifle and the other a knife. The offender was sentenced to three years’ imprisonment for each armed robbery and conspiracy, and together with associated firearms offences, a total effective sentence of six years and eight months. A charge based on manifest excess directed to the conspiracy charge succeeded and the offender was resentenced to a total effective sentence of five years and five months.
[42][2017] VSCA 207.
In Mendelle v The Queen,[43] this Court refused a challenge to a sentence of three years and six months on a single charge of armed robbery of a 7-Eleven store. The offence was committed in company using an imitation firearm. Although the proposed appeal in that case was brought under the ground of specific error, the Court held that there was no reasonable prospect of a lesser sentence being imposed.[44]
[43][2018] VSCA 204.
[44]Ibid [17] (Coghlan and Weinberg JJA).
In Walker v The Queen; Dargan v The Queen,[45] the two offenders had committed an armed robbery on a bottle shop with a large knife and an imitation handgun. The manager was robbed at gun point and a staff member and two customers were also threatened. The offenders had relatively modest prior convictions. They were sentenced by a judge in the County Court to 12 years’ imprisonment each. Those sentences were set aside by this Court on the basis that they were manifestly excessive. Each offender was resentenced to a term of eight years and six months’ imprisonment for the offence. In arriving at that conclusion, this Court surveyed a number of cases dealing with armed robbery that showed sentences of five years,[46] six years,[47] seven years,[48] eight years,[49] 10 years[50] and 14 years.[51]
[45][2019] VSCA 137.
[46]Lord v The Queen [2018] VSCA 52; Driver v The Queen [2012] VSCA 242. In Driver, the applicant was sentenced to five years and six months which was confirmed on appeal.
[47]Lord v The Queen [2018] VSCA 52; Umi v The Queen [2013] VSCA 211. In Umi the applicant was sentenced to seven years but resentenced to six years on appeal.
[48]Cottee v The Queen [2010] VSCA 285; DPP vStevens [2013] VSCA 187. In Cottee, the applicant was sentenced to seven years and six months’ imprisonment and the appeal was dismissed. As noted above, in Stevens, the applicant was sentenced to five years but resentenced to seven years on appeal.
[49]Waugh v The Queen (2013) 38 VR 66; [2013] VSCA 36. In Waugh the offender was sentenced to eight years and three months but resentenced to seven years and six months on appeal.
[50]Johnson v The Queen [2011] VSCA 348.
[51]Binse v The Queen [2016] VSCA 145. The applicant was sentenced to 14 years and two months and the appeal was dismissed.
Of course, that survey at most tells only part of the picture. It is not possible to identify the appropriate sentencing range without close regard to the individual circumstances of the offender.
In this respect, it is important to record that there were a number of features that weighed against the applicant. Aggravating the position was the applicant’s criminal history, which the judge aptly described as both relevant and significant.[52] As noted, based on the material before the judge, this included three convictions for armed robbery in the Children’s Court and nine convictions for unlicensed driving, six convictions for theft of a car, and many other dishonesty convictions as well as driving, drug and assault related offences. It is true, as the applicant submits, that these prior convictions include a number in the Children’s Court and had not resulted in any periods of incarceration as long or significant as the present one. The period on remand for the present offences was the longest period the applicant had experienced in custody. However, his prior history revealed a persistent and troubling disregard for the law. It was highly relevant to specific deterrence. The fact that the offences were committed when the applicant was on bail for other offending also underscored the need for the judge to give careful attention to specific deterrence and protection of the community.
[52]Reasons [18].
As noted, the judge assessed the applicant’s risk of re-offending as high,[53] which was an assessment that accorded with the evidence and was well open to her.
[53]Ibid [41].
Against these matters, there were important matters in mitigation. As noted, the judge acknowledged that the applicant had pleaded guilty to the offending which, although it occurred late in the piece, after he was committed for trial and on the heels of a losing argument on the exclusion of evidence at trial, was nevertheless valuable for its utilitarian benefit.[54] Further, the judge was prepared to find in the plea, and in the applicant’s exchanges with Dr Cunningham and the corrections officer who assessed him for a CCO, some positive signs of insight and remorse.[55]
[54]Ibid [32].
[55]Ibid [33].
The applicant’s upbringing and diagnosis of PTSD were also very significant factors. And the judge addressed those matters in some detail and with considerable care. It is notable that the applicant very properly acknowledged that his PTSD formed part of the background to his recklessness and behaviour but it was not causative of the offending. Indeed, as Dr Cunningham observed, the applicant’s drug use ‘would have increased his impulsivity and recklessness and been the main contributor’ to the offending. Further, the applicant said that he was trying to get money to allow him and his partner to obtain stable housing.[56] That shows a level of insight and planning that is inconsistent with any relevant contributing impairment.
[56]Ibid [37].
The judge accepted that the applicant’s background led to his PTSD which, in turn, reduced his moral culpability for the offending.[57] It is legitimate to be cautious in punishing a person who, by reason of circumstances outside of their control, has a reduced capacity for self-restraint. The evidence suggested that the applicant’s capacity for self-control would benefit from treatment and support.
[57]Ibid [35].
However, protection of the community, including through both general and specific deterrence, remain important factors that a sentencing judge must weigh. Here, the judge was faced with a youthful offender with a very poor record and at high risk of re-offending. Having regard to those matters, the objective seriousness of the offending and the judge’s careful assessment of the applicant’s history and personal circumstances, we are not satisfied that the sentence imposed on charge 5 was wholly outside the range available.
The sentence on charge 2: Attempted aggravated burglary
The attempted aggravated burglary was also a very serious offence. Although the aggravated burglary was not a completed offence, it is clear that the applicant made a full throated attempt. The applicant was armed with the imitation handgun and, based on their reactions and panicked retreat to the bathroom, the experience was terrifying for the victims.
The victims were entitled to be safe in their hotel room and the attempted burglary by forcing the door open and threatening to shoot them was appalling. It warranted a substantial term of imprisonment. As we have observed in the context of our consideration of charge 5, the judge very carefully weighed the matters that pulled in different directions. The weight to be attached to those matters was a matter for the sentencing judge. We are not persuaded that the sentence she arrived at on this charge suggests that some error must have occurred. The sentence does not reveal that something has clearly gone wrong. To the contrary, having regard to the circumstances of the applicant, discussed above, we are not persuaded that the sentence imposed on charge 2 was wholly outside the range.
Once it is recognised, as it must be, that the individual sentences on charges 2 and 5 were not outside the available range, it is necessary to consider whether, by reason of the orders for cumulation, the total effective sentence was manifestly excessive. We are not persuaded that it was.
The orders for cumulation were, in our assessment, relatively modest. The aggravated burglary was, as we have noted, a serious offence in itself. It was a separate act of criminality that needed to find reflection in the overall sentence. The applicant was prepared to commit two separate and distinct offences, armed with the imitation handgun, within the course of a single day. That he was able to avoid detection when police stopped him after he had fled the scene, suggests a degree of composure and control. Having committed the first offence, he had the opportunity to stop. However, he escalated the offending by the commission of the armed robbery.
It is also significant that the judge imposed a relatively short non-parole period. This reflected an awareness of the applicant’s reduced moral culpability and need for support in his rehabilitation, as described by Dr Cunningham. Although it was submitted that the non-parole period was itself manifestly excessive, we cannot agree. The judge gave the applicant the benefit of a relatively short non-parole period. Doing so was an appropriate way to reflect the factors in mitigation identified by Dr Cunningham.
We would refuse leave to appeal on ground 1.
Ground 2
On summary charge 9 the judge ordered that the applicant be convicted, sentenced to three months’ imprisonment (to be served concurrently), that all Victorian licences and/or permits held by him be cancelled, and that he be disqualified from obtaining any such licence or permit for a period of 18 months from 4 September 2019.
It was common ground that the judge erred in imposing a sentence of three months’ imprisonment, which was the maximum available custodial sentence for the offence at the relevant time. Evidently, her Honour did so because she was told that the maximum penalty was six months’ imprisonment or 60 penalty units, which was incorrect. Given that the sentence imposed was ordered to be served concurrently, the error had no impact on the total effective sentence or the non-parole period. The applicant accepts that this error does not otherwise affect the sentences imposed, including the total effective sentence.
Finally, as noted earlier, the judge did not deal with the mandatory licence disqualification which was required in relation to charges 1 and 6.
In the circumstances, we will grant leave, allow the appeal on ground 2 and set aside the sentence imposed on summary charge 9. In respect of charge 9, the applicant will be convicted and we will substitute a sentence of one month’s imprisonment to be served concurrently with the sentences imposed by the judge on the other charges. On charges 1, 6 and 9, we will order that all Victorian licences and/or permits held by the applicant be cancelled and that the applicant be disqualified from obtaining any such licence or permit for a period of 18 months from 4 September 2019.
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