Tokarahi v The King
[2023] VSCA 298
•5 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0176 |
| JEROME TOKARAHI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 November 2023 |
| DATE OF JUDGMENT: | 5 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 298 |
| JUDGMENT APPEALED FROM: | [2023] VCC 681 (Judge Cahill) |
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CRIMINAL LAW – Leave to appeal – Sentence – Breach of procedural fairness – Whether judge departed from indication on objective gravity given during plea hearing – Applicant given every opportunity to address objective gravity – Judge’s observation on objective gravity qualified and position remained open – No unfairness.
CRIMINAL LAW – Leave to appeal – Sentence – Double punishment – Whether base sentence and order for cumulation punished applicant twice for same conduct – Judge alive to overlap between two offences – Cumulation modest – Kidnapping involved additional criminality.
CRIMINAL LAW – Leave to appeal – Sentence – Objective gravity of offending – Whether assessment of objective gravity erroneous – Have regard not only to judge’s description but also to sentence actually imposed – Gravity not reduced by absence of other aggravating features – Judge not required to discount seriousness because offending could have been worse – Sentence arrived at open – Extension of time granted – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr AS Dickinson | ||
| Respondent: | Ms E Ramsay | ||
Solicitors | |||
| Applicant: | Giorgianni & Liang | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KIDD AJA:
The applicant, now aged 24 years,[1] pleaded guilty to one charge of armed robbery,[2] one charge of kidnapping[3] and one charge of obtain financial advantage by deception.[4]
[1]The applicant’s date of birth is 4 February 1999.
[2]Contrary to Crimes Act 1958, s 75A.
[3]Contrary to Crimes Act 1958, s 63A.
[4]Contrary to Crimes Act 1958, s 82; rolled up charge.
Following pleas on 20 April and 2 May 2023, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Armed robbery | 25 years | 2 years | Base |
| 2 | Kidnapping | 25 years | 2 years | 6 months |
| 3 | Obtain Financial Advantage by Deception | 10 years | 1 month | — |
| Total Effective Sentence: | 2 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 1 year and 3 months’ imprisonment | |||
| Pre-sentence Detention Declared: | 161 days | |||
| Section 6AAA Statement: | 3 years and 9 months with a non-parole period of 2 years and 6 months’ imprisonment | |||
| Other Relevant Orders: 1. Compensation order of $2,399.00 2. Forfeiture order | ||||
Proposed grounds of appeal
The applicant seeks an extension of time for leave to appeal against sentence on the following proposed grounds:
1. The Learned Sentencing Judge erred in that he imposed sentences for the armed robbery and kidnapping offences which doubly punished the applicant for the same conduct.
2.The applicant was denied natural justice on the question of the objective gravity of the offence of kidnapping.
3.The Learned Sentencing Judge erred in that he failed to assess the objective gravity of the kidnapping as low range.
4.The Learned Sentencing Judge erred in that he failed to assess the objective gravity of the offence of armed robbery as low range.
5.The individual sentences for the offences, the orders for cumulation and the head sentence were manifestly excessive.
Circumstances of the offending[5]
[5]This description of the circumstances is drawn from the Summary of Prosecution Opening, which was tendered as Exhibit A on the applicant’s plea.
On 14 November 2022 at 10:46 pm, the applicant got off a train at Noble Park Station and walked towards his home. The victim, Anmol Anmol, had also alighted the same train and was walking behind the applicant.
The applicant approached Mr Anmol in the Coles carpark and asked for his name and where he came from. The applicant proceeded to put an arm around Mr Anmol’s shoulder, pulling an imitation semi-automatic handgun from his pants and saying, ‘Give me your wallet. Otherwise I will shoot you’.
Mr Anmol told the applicant that he did not have a wallet. The applicant returned the handgun to his pants before searching Mr Anmol’s jacket and taking his bank card, driver’s licence and Apple iPhone 14 Pro, valued at $1,900.00, from his pants pocket (Charge 1).
Mr Anmol offered his jacket and backpack to the applicant in an effort to be let go. The applicant refused and told Mr Anmol to come with him, threatening to shoot him if he tried to run. The applicant put an arm on his shoulder, forcing him to walk to a nearby ATM (Charge 2).
The applicant demanded Mr Anmol activate his Commonwealth Bank App and used Mr Anmol’s phone to withdraw $500 from his account. The applicant had Mr Anmol reset the iPhone to its factory settings and kept the iPhone. The applicant told Mr Anmol to go and not look back, threatening to shoot him if he looked back. Mr Anmol ran home.
On 15 November 2022, the applicant used Mr Anmol’s debit card nine times to purchase food, tobacco and clothing to the value of $301.08 (Charge 3 — rolled up charge). That same day, Mr Anmol reported to the incident to police. CCTV cameras captured the applicant’s movements when he robbed and kidnapped Mr Anmol.
At approximately 2:14 pm, the applicant took a taxi and paid the $15.50 fare using Mr Anmol’s debit card.
The applicant attended the Dandenong Plaza shopping centre at approximately 2:21 pm. He purchased two Nike t-shirts and a pair of Nike shorts from the Sports First retail store to the value of $120.50, using Mr Anmol’s debit card.
The applicant proceeded to purchase two Under Armour t-shirts for $49.98, using Mr Anmol’s debit card, at another store within the Plaza.
Plea hearing
Defence submissions
Counsel for the applicant categorised the offending as ‘low level examples of serious offences’, on the basis that the offending was short in duration, lacking sophistication and ‘actual violence’. It was noted that the applicant had an argument with his sister over the phone, just prior to the incident, which had been ‘triggering and confronting’ in the context of his post-traumatic stress disorder (‘PTSD’).
The sentencing consideration of rehabilitation was emphasised due to the applicant’s age, limited but relevant prior convictions, early plea of guilty, family support and reasonable prospects of rehabilitation. The applicant was ‘keen to address substance abuse issues’ and undergo therapeutic intervention, treatment and support.
It was accepted that general and specific deterrence were relevant factors at sentencing. Counsel for the applicant submitted that the applicant’s plea of guilty, remorse, insight into the offending, poor mental health and risk of deportation were all factors to be considered in mitigation.
Prosecution submissions
Counsel for the prosecution submitted that it was a ‘serious example’ of such offending, with aggravating factors such as use of an imitation firearm, level of sophistication and the vulnerability of the victim. The applicant’s relevant criminal history was emphasised.
In light of the applicant’s traumatic upbringing, in the context of his moral culpability, counsel for prosecution explained:
Despite the complex trauma history, the Crown’s submission is that [the applicant] did know what he was doing and understood the complexity of his actions … The Crown does accept that [the applicant] may have been triggered by some of the things that were said in the argument between himself and his sister, but then that does not explain why he preyed upon somebody who was not involved in that fight at all.
The relevance of the applicant’s early plea of guilty, relative youth and risk of deportation at sentencing, was accepted.
Discussion of gravity of the offending on the plea
The plea proceeded over two days.
On the first day of the plea, there was a discussion about the objective gravity of the offending including by reference to some other cases, said to be comparable. In the course of that discussion the judge said:
But you’ve made a submission that these are low-level examples of serious offences. One of my tasks is to assess the objective gravity of this offending, and in relation to the armed robbery that [the applicant] was travelling on public transport and then walking home carrying an imitation firearm and then used it to set upon another young man who had got off the train and was walking, by chance, ahead of him, and then he’s produced it … threatened him and demanded his wallet in the first instance, which is the armed robbery, the carrying of the weapon in the nature of an imitation firearm and then using it in the manner that he did elevates it, in my view, above low range. It’s somewhere between low and mid-range but, in my view, falls more towards mid-range offending. Somewhere below mid-range, somewhere between low and mid-range is probably the best kind of classification or best assessment that I can make of it.
…
It’s a serious example of a serious crime. The armed robbery is a serious example of a serious crime which carries a maximum penalty of 25 years’ imprisonment. As I’ve indicated to you, it strikes me as an example that is somewhere between low and mid-range, and there’s the additional criminality of having kidnapped this man to access his ATM through his phone and then used his credit card to obtain items albeit, you know, life essentials rather than extravagances. So there is the additional criminality of the kidnapping and the other dishonesty offence.
After this discussion, in which the applicant’s counsel said that he would try and persuade the judge out of his view on the seriousness of the offending, attention then turned to the kidnapping, leading the judge to say:
Yes, it’s a low-level kidnapping in the sense that he didn’t use physical force, but it was part of a continuing episode from the time that he’s robbed him until the time that he’s got his money out of the ATM. I accept that the kidnapping crime, as between low and mid, would fall nearer to low range, but it’s additional criminality nonetheless. And I accept that the obtain financial advantage by deception probably falls to the lower end between low and mid-range, but it’s additional criminality nonetheless.
After the conclusion of the hearing, the applicant made a further written submission and the matter was listed on a second occasion. The further written submission addressed a number of matters including the gravity of the two offences. During the course of the argument on the second day, the judge said:
You’ve made some additional submissions where you seek to persuade me that this is a low level example of armed robbery and kidnapping and that again that you’ve emphasised the lack of physical violence. But nonetheless, [the applicant] has used an imitation firearm intending that Mr Anmol believe it to be genuine and potentially lethal to intimidate him to hand over his property and also to intimidate him to go to the ATM where [the applicant] used his phone to remove funds from his online bank account. As I said to you on the last occasion, my assessment is that it falls between the low and mid-range but most closer to mid-range than low and your further submissions really emphasise the point that you made on the previous occasion and I’m not moved in that assessment that I’ve made.
Sentencing remarks
The judge characterised the offending, comprising both of the principal offences, as ‘above low-range and nearer to mid-range’,[6] explaining:
I also have to take into account the additional criminality of you forcing Anmol to the ATM in order take money from his bank account using his mobile phone App (kidnapping) and using the bank card you stole from him to buy personal items (obtaining financial advantage by deception).
Your kidnapping of Anmol was part of a single episode which started when you robbed him. You used the imitation handgun to intimidate Anmol into giving up his belongings to you and to go with you to the ATM. Because it was part of a continuing course of conduct, I assess the objective gravity of kidnapping offence to be similar to the armed robbery.
Considering the low value of the goods you purchased I assess the objective gravity of the deception offence as low-range.[7]
[6]DPP v Tokarahi [2023] VCC 681, [91].
[7]Ibid [92]–[94].
The applicant’s early plea of guilty, remorse, mental health concerns (namely PTSD), his first time in custody and risk of deportation were taken into account in mitigation.[8]
[8]Ibid [97]–[101], [107].
In light of the applicant’s relative youth, genuine remorse, limited criminal history, previous compliance with a good behaviour bond and good working history, the judge marked his prospects of rehabilitation as ‘relatively good’.[9]
[9]Ibid [111].
The judge emphasised the application of the principles of totality and parsimony, while also balancing the need for denunciation, punishment and deterrence, while also addressing the importance of rehabilitation.[10]
[10]Ibid [113]–[115].
Consideration
Ground 2: breach of procedural fairness
Counsel for the applicant commenced his oral submissions with ground 2, and it is convenient to commence there.
The applicant complains that the judge said during the hearing that he regarded the kidnapping as ‘low-level’, but when he came to pass sentence, he treated both the armed robbery and kidnapping as being nearer to mid-range.
It is uncontroversial that a party is entitled to procedural fairness. A party may be denied procedural fairness where a judge gives an indication of what he or she is proposing to accept and then, without warning, departs from that indication, thus denying the affected person the opportunity to address the issue by way of submissions or evidence. That notion is part of the broader principle that a party should be given a reasonable opportunity to be heard on the issues in dispute and the obligation of a judge to draw important matters to the attention of the party unless they are obvious or naturally inhere in the subject matter.
As is invariably the case, the objective seriousness of the offending will be an important matter for the judge to consider in sentencing and the parties, that is both prosecution and defence, must be given a reasonable opportunity to address the matter. Usually, the parties will not need to be told that it is a matter which they should address. That is what occurred here.
In our opinion, the applicant was given every opportunity to address the objective gravity of the two principal offences. In virtually every respect, the matters that were relevant to objective gravity were the same for the two offences. That is unsurprising as they arose out of the same circumstances. The victim was vulnerable, the applicant used an imitation firearm that was plausible and which the victim believed was real, the applicant used threats of lethal force on three occasions and, although the entire incident was not of long duration, it extended for around 13 minutes.
It is true that, in assessing the gravity of the offending, the judge appeared to differentiate between the two main offences. However, his observation that it was low level kidnapping was not unqualified and the central point, that it involved additional criminality to the armed robbery, was clearly raised by the judge at the first hearing.
After the first hearing, the applicant took the opportunity to further address the gravity of the offending.
The applicant was given, and took advantage of, a reasonable opportunity to address the question of the gravity of the kidnapping. The judge’s observation of the first hearing was qualified on the second hearing and his position remained open. All that could have been said, was said.
There was no unfairness.
Ground 1: double punishment
The applicant submits that he was punished twice for the same conduct. He says that in imposing the individual sentence for the kidnapping and the orders for cumulation, the judge impermissibly doubly punished the applicant for the criminality forming the armed robbery count.
This ground is without merit.
The armed robbery charge was bookended by the initial theft of the victim’s mobile phone and the theft of cash that was withdrawn from the ATM. The kidnapping involved the deprivation of liberty within these two events. They arose out of a single course of events over a relatively short period of time.
The judge was clearly alive to the fact that there was some overlap between the two offences and the extent of cumulation was very modest. To march someone at gunpoint and take them even a short distance while threatening to shoot them if they seek to escape is serious conduct. Here it facilitated the further armed robbery at the ATM, but it also involved a deprivation of liberty and would have been terrifying. It also served to extend the time of the overall offending.
In a conventional way the judge imposed a sentence on each charge referable to both the offence and the particular attributes and antecedents of the applicant. He used the order for cumulation to address the additional criminality involved in the kidnapping. The modest extent of cumulation makes it plain that the judge was conscious not to impose a double punishment.
Ground 3: objective gravity of the kidnapping
Ultimately, the judge said that he regarded each of the two main offences as ‘above low-range and nearer to mid-range’.[11] The applicant says that this involves an erroneous assessment of the gravity of the kidnapping and a vitiating error.
[11]Ibid [91].
This ground must be rejected.
This was by no means a minor offence.
Any attempt to assess how the judge placed this instance of the offence within the spectrum of kidnappings must have regard not only to his description but also to the sentence actually imposed. Even allowing for strong mitigatory factors, including his young age, remorse and good prospects of rehabilitation, a sentence of 2 years’ imprisonment for a kidnapping at gunpoint could not be regarded as a mid-range sentence. Indeed, for the offence of kidnapping, which carries a maximum imprisonment of 25 years, 2 years is at the lower end. Further, once regard is had to the degree of cumulation, the sentence on kidnapping was moderate and must have proceeded on a modest assessment of both objective gravity and the additional criminality that it entailed.
Ground 4: objective gravity of the armed robbery
For similar reasons, there was no error in the judge’s assessment of the objective gravity of the armed robbery. Although the issue for this Court is whether the judge’s assessment was open to him, as it happens, we agree with it.
The gravity was not reduced by the absence of other aggravating features, although it was necessary to place this example within the range of offences comprehended by the charge. The judge was not required to discount the seriousness because it could have been worse or involved more serious aspects.
It is also important to appreciate the context in which the judge made the assessment. The applicant had submitted that this was a low-end armed robbery and, by reference to a number of other cases involving armed robbery by imitation weapon, said that a community correction order was warranted. In saying that the example was mid-range, the judge was doing little more than saying it was too serous to justify a non-custodial sentence. There was no error in that approach.
Ground 5: manifest excess
In order to establish that the sentence imposed on the applicant was manifestly excessive, the applicant must demonstrate that the sentence was ‘wholly outside the range of sentencing options’ available to the judge if proper weight was given to all the relevant factors. In other words, the applicant must demonstrate that it was not ‘reasonably open’ to the learned sentencing judge to impose the sentence that he did.[12] Manifest excess is a stringent ground that is difficult to make good.
[12]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
In his written case. the applicant points to the following as being significant:
a. No intention to harm [Mr Anmol],
b. No actual physical violence was used,
c. No injuries were occasioned,
d. No physical restraints were used,
e. Short duration,
f. Unsophisticated,
g. No disguises were used,
h. The offending was not in company with others,
i. No evidence of preplanning,
j. Offence occurred in a public place where a significant number of CCTV cameras were present,
k. [Mr Anmol] is an adult male with no apparent vulnerabilities,
l. [Mr Anmol is] not a recognised soft target (i.e. child, elderly, female, infirm),
m. Imitation weapon — therefore incapable of causing significant injury,
n. Weapon not pointed at [Mr Anmol],
o. No ‘menacing’ of [Mr Anmol] with the gun,
p. No shouting, and
q.Offence effected in such a way as to keep [Mr Anmol’s] fear to a minimum.
Each of those matters required consideration and the judge gave close attention to them. Ultimately, he regarded the offending as being too serious for a non-custodial disposition.
There was some discussion in argument about where the sentence imposed in this case fitted within the statistical snapshot. We have not found recourse to statistics of much assistance in resolving this ground.
What other cases show is that it is very common for armed robbery to attract a term of imprisonment. That is unsurprising; the maximum penalty is 25 years’ imprisonment, and armed robberies can, and often will, be terrifying for the victim and involve a high degree of criminality. They also often involve a risk, or perception of risk, of injury or the infliction of force, including lethal force.
There were some very positive aspects of the applicant’s plea, and some genuine hope for rehabilitation. He had a challenging upbringing in some respects but also showed periods of settled employment. Giving those matters due weight, it was well open to the judge to conclude that the armed robbery and kidnapping offences called for a term of imprisonment. The sentence he arrived at was open to him.
Conclusion
None of the grounds have been made out. We would grant the extension of time, but refuse leave to appeal.
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