Umi v The Queen

[2013] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0113

SAOLOAPU UMI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO and OSBORN JJA and HARGRAVE AJA
WHERE HELD	MORWELL
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	13 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 211
JUDGMENT APPEALED FROM	DPP v Downe & Anor (Unreported, County Court of Victoria, Judge Maidment, 29 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery and associated offences – Total effective sentence of eight years’ imprisonment with a non-parole period of five years – Co-offender sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years in respect of the co-offending and additional unrelated offending – Parity – Applicant fell to be charged on one count as a serious violent offender under s 6A of the Sentencing Act 1991 – Leave to appeal granted – Appeal allowed – Applicant re-sentenced – Total effective sentence of seven years and six months’ imprisonment with a non-parole period of four years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Carter	Doogue O’Brien George Criminal Lawyers
For the Respondent	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. I will ask Osborn JA to deliver the first judgement. 

OSBORN JA:

1. On 28 May 2013 the applicant pleaded guilty to a series of offences arising out of armed robbery and associated circumstances which occurred on 24 November 2012. 

1. On 29 May 2013 the applicant was sentenced as follows:

Charge[1]	Offence	Maximum	Sentence	Cumulation
Indictment C13304478
1	Armed Robbery [s 75A Crimes Act 1958]	25 years	7 years	Base
2	Making a threat to kill [s 20 Crimes Act 1958]	10 years	3 years	-
3	Prohibited person possess firearm [s 5(1) Firearms Act 1996]	10 years or 1200 penalty units	3 years	1 year
Summary charges
4	Assault with weapon [s 24 Summary Offences Act 1966]	12 months	6 months	-
9	Possession ammunition without licence [s 124 Firearms Act 1996]	40 Penalty Units	Convicted and discharged	-
10	Use drug of dependence [s 75 Drugs, Poisons and Controlled Substances Act 1981]	12 months	Convicted and discharged	-
14	Unlicensed driving [s 18 Road Safety Act 1986]	3 months	1 month	-
17	Use threatening words in a public place [s 17 Summary Offences Act 1966]	3 months[2]	14 days	-
18	Deal with property suspected proceeds of crime [s 195 Crimes Act 1958]	2 years	2 years	-
Total Effective Sentence:		8 years
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		169 days
6AAA Statement:		TES 10 years 6 months NPP 7 years
Other orders: Disposal order; Retention of forensic sample order.

[1]The charge numbers for the appellant and the co-offender are as they appear in the Summary Prosecution Opening in R v Downe and Umi dated 23 May 2013 (‘SPO’). 

[2]Penalty for a second offence. 

Background facts

1. At about 12:30 am on Saturday 24 November 2012 the applicant and his co-offender Jody Lee Downe met at the Turf Side Tavern in Moe.  They were not known to each other prior to this occasion.  The applicant was 36 years of age and Downe was 24 years of age.  Downe was a drug addict and had consumed a quarter of a cube of LSD earlier that evening. 

1. Downe asked the applicant for a lift to Sale.  The applicant agreed, and a short time later they left Moe in a vehicle driven by the applicant.  The applicant did not hold a current driver’s licence (summary charge 14 - unlicensed driving). 

1. During the course of their trip from Moe to Sale, the applicant and Downe discussed committing an armed robbery using a large knife that was present in the pocket of the front passenger door and a double barrel side by side shotgun located in the boot of the car. 

1. At about 3:30 am the applicant pulled the vehicle up at the United Petrol Station in Sale, out of view of the CCTV cameras on the east side of the building.  The applicant retrieved the shotgun from the boot of the car and there was further discussion about the armed robbery.  Downe then walked into the shop section of the business.  She requested a pen and paper to write down a phone number.  She spent some time writing on the paper.  The applicant entered the shop. Downe handed the piece of paper to the applicant and they both then left the shop.  The applicant and Downe then walked back to the vehicle and put on extra items of clothing.  Downe put on a shirt, cap and bandana belonging to the applicant in an attempt to conceal her identity.  The applicant put on a large hooded jacket and used a bandana to cover his face. 

1. The applicant and Downe then re-entered the store.  The applicant was carrying the shotgun.  Downe was carrying the knife.  They went to the counter and demanded cash from the register.  Downe slashed the knife on the counter and the applicant pointed the shotgun directly at the attendant, Gurjeet Singh (summary charge 4 - assault with weapon). 

1. Singh pressed the duress alarm.  Both the applicant and Downe said, ‘Don’t press the button. Give us the money. We are serious we can kill you’  (charge 1 - armed robbery; charge 2 - threat to kill; charge 3 - prohibited person in possession of unregistered firearm).  Downe was doing most of the talking at this point.  The applicant pointed the gun straight at Singh and said, ‘Give me the money.’  Singh gave him 5 cent and 10 cent coins.  The applicant said, ‘No I want the other money’.  He reached over and grabbed money from the cash register.  Downe told Singh to give her money or she would stab him.  She also leaned over and helped herself to money from the cash register. 

1. The applicant and Downe collected about $500 from the robbery.  Upon leaving the scene in the applicant’s vehicle, Downe showed the applicant the way to a friend’s house in Sale.  Once there, they purchased about $300 worth of heroin using the stolen money and injected themselves with it (summary charge 10 - use drug of dependence). 

1. The applicant left the house later that morning and travelled to Lakes Entrance, where he visited the house of his ex-partner and hid the shotgun in the ceiling.  He also left a number of items, including the hooded jacket and shoes which he wore during the armed robbery as well as two shotgun cartridges, at the house.  The shotgun was identified by police as having been stolen from a house in Lalor (summary charge 9 - possess ammunition without a licence; summary charge 18 - dealing with property suspected of being the proceeds of crime). 

1. Downe was arrested and interviewed on 25 November 2012 and made admissions to the armed robbery. 

1. The applicant was arrested and interviewed on 27 November 2012 and made admissions to the armed robbery.  He stated that the shotgun was not loaded at the time.  While police were awaiting transport for the applicant to the Melbourne Custody Centre, the applicant threatened the informant by saying, ‘When I get out in seven or ten years, you had better be on holidays’ (summary charge 17 - use threatening words in a public place). 

1. Downe pleaded guilty on the same date as the applicant and was sentenced together with him.  In addition to offences arising out of the armed robbery at the service station, she fell to be sentenced for additional charges of recklessly cause serious injury, burglary, theft, attempted robbery, unlawful assault and use of LSD.  She was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Indictment C1308975
1	Recklessly cause serious injury [s 17 Crimes Act 1958]	15 years	2 years 6 months	1 year
2	Burglary [s 76 Crimes Act 1958]	10 years	2 years	6 months
3	Theft [s 74 Crimes Act 1958]	10 years	18 months	-
4	Attempted robbery [ss 75 & 321M Crimes Act 1958]	10 years [ss 75 & 321P Crimes Act 1958]	2 years	6 months
7	Unlawful assault [s 23 Summary Offences Act 1966]	3 months	9 months	-
9	Use drug of dependence (LSD) [s 75 Drugs, Poisons and Controlled Substances Act 1981]	12 months	3 months	-
Offences in common with applicant
5	Armed Robbery [s 75A Crimes Act 1958]	25 years	6 years	Base
6	Making a threat to kill [s 20 Crimes Act 1958]	10 years	2 years 6 months	-
4	Assault with weapon [s 24 Summary Offences Act 1966]	12 months	9 months
10	Use drug of dependence (heroin) [s 75 Drugs, Poisons and Controlled Substances Act 1981]	12 months	Convicted and discharged	-
Total Effective Sentence:		8 years
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		185 days
6AAA Statement:		TES 10 years 6 months NPP 7 years
Other orders: Disposal order;  Retention of forensic sample order.

Ground one of appeal - the sentence imposed upon the applicant was not sufficiently disparate with the sentence imposed upon the co-offender Jody Lee Downe.

1. The offences for which Downe was sentenced included a number of matters which occurred prior to her meeting with the applicant on the night of the armed robbery. 

1. On 22 June 2012 Downe, who was a long term heroin user, stabbed a man with whom she was residing following a tantrum over a telephone discussion with the man’s daughter.  Downe used a kitchen knife and caused a penetrating wound to the chest 2 centimetres wide and 3 centimetres deep.  The victim staggered from the house and collapsed.  He was taken to hospital by ambulance and required treatment in hospital for five days.  As the sentencing judge observed, Downe was lucky she did not kill the victim or injure him more seriously.  His Honour imposed a sentence of two years and six months’ imprisonment for this offence of recklessly cause serious injury (charge 1). 

1. On 18 October 2012 Downe went to a house in Sale and, when no-one answered the front door, went to the rear of the house, entered as a trespasser and stole NZ$1,100 from a handbag.  When arrested on 25 October 2012 she admitted the offence and said what she had done was wrong but that she had done it in order to obtain drugs.  His Honour imposed a sentence of two years’ imprisonment for burglary (charge 2) and 18 months’ imprisonment for theft (charge 3) arising out of this incident. 

1. On 15 November 2012 Downe attempted to rob a visitor she met at Sale Hospital of her handbag.  In so doing she threatened to hit the victim.  His Honour imposed a sentence of two years’ imprisonment for the attempted robbery (charge 4) and one month’s imprisonment for the assault (charge 7). 

1. His Honour cumulated a total of two years’ imprisonment in respect of the incidents in which the applicant was not involved as a component of Downe’s total effective sentence of eight years. 

1. The applicant submits that, given the seriousness of Downe’s offending and in particular the reckless cause serious injury, the principle of parity has been breached by imposing equivalent total effective sentences upon the two offenders.  In my view, although the matter is not free from difficulty, this submission should ultimately be accepted. 

1. On the one hand it must be recognised, as the Crown submits that:

·     The applicant was more mature than Downe (36 as against 24). 

·     Downe’s frank drug addiction developed in a broken family situation where her mother suffered from mental illness and was a drug addict and where she herself commenced substance abuse at the age of 12.  That abuse continued in the context of a series of abusive relationships.  In turn, all of her offending was plainly drug related and, save for one offence, directly drug motivated. 

·     It was the applicant who provided the weapons and motor vehicle used in the armed robbery. 

·     It was the applicant who used the shotgun.

·     It was the applicant who had more serious prior convictions (a matter to which I shall return), including in particular prior convictions for assault. 

1. It also seems clear, although his Honour did not so state, that the applicant fell to be sentenced as a serious violent offender with respect to the threat to kill.  The offence of threat to kill[3] is a serious violent offence[4] although, armed robbery is not.  The applicant had a prior conviction for intentionally cause serious injury on 25 October 2005, reinstating a sentence first imposed on 24 June 2011,  and one prior conviction for threat to kill (12 March 2004) and for each of those convictions he received immediate terms of imprisonment.  I should interpolate that intentionally cause serious injury like a threat to kill is a serious violent offence.[5] 

   [3]Crimes Act 1958 s 20.

   [4]Sentencing Act 1991 sch 1 cl 3.

   [5]Ibid.

1. Accordingly, on the threat to kill charge now under consideration the applicant fell to be sentenced as a serious violent offender under s 6A of the Sentencing Act 1991.  In turn, protection of the community was the principal purpose for which the sentence fell to be imposed and a sentence disproportionate to the gravity of the offence might be imposed under s 6D.  Further, prima facie the sentence was required to be cumulative pursuant to s 6E. 

1. On the other hand:

·     The armed robbery was a joint enterprise entered into following discussion and agreement as to the manner of its commission. 

·     Downe took a very active part in the robbery, slashing the counter with a knife and making threats and demands. 

·     The applicant had had a four year break since his last offending in 2008. 

·     Downe was on three sets of bail for serious offending including attempted robbery at the time of the armed robbery. 

·     Whilst his Honour accepted both offenders were remorseful, he further found that Downe’s drug addiction was more serious than the applicant’s substance abuse and that in consequence the applicant’s prospects of rehabilitation were better than Downe’s. 

·     The prior stabbing offence by Downe was a serious violent offence causing serious injury to the victim. 

·     The burglary and house theft and the attempted robbery of the handbag were dishonesty offences of at least the same gravity as the applicant’s possession of a stolen shotgun. 

·     Downe’s prior criminal history was also extensive.  She has had one prior conviction for threat to kill; seven prior convictions for contravention of family violence intervention orders; three convictions for recklessly causing injury; convictions for assault, assault with a weapon and assault by kicking; seven convictions for wilful damage to property and like offences; and eight convictions for dishonesty offences.  She had previously been sentenced to imprisonment on three occasions although two of these sentences were wholly suspended and on the last she was sentenced to only five days’ imprisonment representing the period of pre-sentence detention.

·     Downe had failed to respond to a series of interventions intended to assist her to address her substance abuse problems. 

1. Whilst the parity principle allows for different sentences to be imposed on joint offenders to reflect degrees of culpability and differences in circumstances, nevertheless in my view the offences committed on the three additional occasions in which Downe was involved, required that the penalty imposed upon Downe was greater than that imposed upon the applicant. 

1. The principle of parity is an aspect of equal justice.  Equal justice requires that like offences should be treated alike but, conversely, relevant differences between offenders will justify different outcomes.  The principle raises the question whether there is a marked disparity between the two sentences which gives rise to a justifiable sense of grievance on the applicant’s part.[6] 

   [6]Postiglione v The Queen (1997) 189 CLR 295, 301; Lowe v The Queen (1984) 154 CLR 606, 610, 613, 623.

1. In my view the present case does give rise to a justifiable grievance on the part of the applicant.  At heart this is because the applicant fell to be sentenced for one episode involving offending only whereas the co-offender fell to be sentenced for four episodes. 

1. It follows that the applicant should be re-sentenced and it is not necessary to consider the further grounds of appeal which were framed by reference to allegations of manifest excess[7] save in the course of such resentencing, which must include consideration of matters of proportionality and totality. 

   [7]Grounds 2 and 3 of the notice of appeal are as follows:

   Ground 2The Sentencing Judge erred by imposing the maximum penalty for the offence of dealing with property suspected to be the proceeds of crime.

   Ground 3The sentences imposed on the charge of armed robbery, threat to kill and prohibited person possess a firearm:

   (i)were manifestly excessive; and

   (ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and

   (iii)resulted in a total effective sentence and non-parole that were manifestly excessive.

1. A principal factor counting against a substantial reduction in penalty is the applicant’s prior criminal record.  This goes back to 1999.  It includes some 18 appearances before the courts[8] and 15 separate convictions for assault, recklessly cause injury, intentionally cause injury, threat to kill and intentionally cause serious injury.[9]  Further, the applicant has previously served terms of imprisonment on a series of occasions, although for periods of less than one year. 

   [8]Including four appeals to the County Court. 

   [9]None of the applicant’s prior convictions are for armed robbery and none involve offences causing serious injury. 

1. As against this, the applicant relies on a series of matters relating to his personal history and circumstances.  First, the applicant co-operated with the investigating authorities and made voluntary admissions of his offending.[10]  He pleaded guilty at the earliest opportunity and the sentencing judge made positive findings of remorse, which I accept despite the threat he made when arrested.   

   [10]Although initially falsely blaming Downe for the provision of the shotgun.

1. Secondly, the applicant’s criminal history has occurred in the context of a troubled transition through early adult life.  More particularly, he was separated from his parents early in his childhood in Samoa and grew up with limited family support.  He completed school to Year 11 and in 1995 moved as a 19 year old from the society in which he grew up to play professional rugby in this country.  After some two years of success, his career ended with injury.  It was subsequent to this that his criminal history commenced in 1999. 

1. Between 1998 and 2010 he lived in a relationship with a woman whom he married and with whom he had four children (now aged between three and 14).  The offending now in issue occurred after this relationship of 12 years had broken down. 

1. Thirdly, the applicant’s prior offending involved no use of weapons and was associated with recurrent heavy drinking and a failure to manage anger.  Whilst it may be said that the current offence was premeditated and not of this kind, it may also be observed that the applicant was able to break the pattern of his previous offending and had no convictions for a period of four years prior to the matters now in issue. 

1. Fourthly, at the time of the offending, he was using heroin and had been out of work for a year.  He did not have the means to support his drug habit.[11]

   [11]His instructions in this regard are consistent with the immediate application of the proceeds of the robbery to the purchase of drugs. 

1. Fifthly, whilst in prison he has:

·     undertaken drug and alcohol programs;

·     undertaken an anger management course;

·     studied the repair of CD players;

·     worked in the prison industries as a welder;

·     become a mentor and support for younger Pacific Islanders in prison; and

·     successfully tested as clear on urine screen tests for illicit drugs.   

1. On his release, he aims to:

·     resume a relationship he had formed after the breakdown of his marriage with a woman who has remained in contact with him in prison;

·     find a worthwhile job;

·     engage in recreational activities which will allow him to feel ‘good about himself’;

·     stop using drugs and moderate and control his drinking; and

·     be a good father and role model to his children. 

1. When these matters are put together I accept, as did the sentencing judge, that the applicant does have some reasonable prospects of rehabilitation.  Nevertheless he has demonstrated a persistent weakness for alcohol and drugs and a propensity to resort to violence.  Moreover as I have already observed the current offence was a deliberate and premeditated robbery. 

1. The sentence imposed must thus reflect significant elements of punishment, specific deterrence and protection of the community. 

1. Having regard to all the circumstances of the case, I would grant leave to appeal, allow the appeal and resentence the applicant as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C13304478
1	Armed Robbery [s 75A Crimes Act 1958]	25 years	6 years	Base
2	Making a threat to kill [s 20 Crimes Act 1958]	10 years	3 years	6 months
3	Prohibited person possess firearm [s 5(1) Firearms Act 1996]	10 years or 1200 penalty units	3 years	1 year
Summary charges
4	Assault with weapon [s 24 Summary Offences Act 1966]	12 months	6 months	-
9	Possessionammunition without licence [s 124 Firearms Act 1996]	40 Penalty Units	Convicted and discharged	-
10	Use drug of dependence [s 75 Drugs, Poisons and Controlled Substances Act 1981]	12 months	Convicted and discharged	-
14	Unlicensed driving [s 18 Road Safety Act 1986]	3 months	1 month	-
17	Use threatening words in a public place [s 17 Summary Offences Act 1966]	2 months	14 days	-
18	Deal with property suspected proceeds of crime [s 195 Crimes Act 1958]	2 years	18 months	-
Total Effective Sentence:		7 years 6 months
Non-Parole Period:		4 years 6 months

1. I have reduced the penalty with respect to charge 1 in order to give effect to considerations of parity, because in my view a sentence of six years better reflects current sentencing practice in respect of armed robbery,[12] and because of the imposition of further cumulative penalties for discrete elements of the offending.

   [12]Cf R v Broadbent [2009] VSCA 320; Mamonitis v The Queen [2011] VSCA 370; Sentencing Snapshot June 2012 Number 122 – Armed Robbery.

1. Nevertheless this was a very serious armed robbery involving the terrifying use of both a shotgun and knife.  It is true, as counsel for the applicant submitted, that the shotgun was neither discharged nor loaded and that the victim was not injured but the offending comprised a direct, violent and overwhelming joint confrontation by two offenders, each apparently heavily armed.  Considerations of just punishment, specific and general deterrence mean that a substantial period of imprisonment must be imposed. 

1. Those who handle cash in businesses such as late night service stations must know that the law will protect them, and conversely those who are tempted to offend against such ‘soft targets’ must know that they face substantial periods of imprisonment. 

1. In my view the policy underlying the serious violent offender provisions means that there must also be some material cumulation for the threat to kill conviction, albeit that the threat was made in the course of the armed robbery. 

1. Moreover the offence of possession of a firearm by a prohibited person was also a serious offence having regard to the extent and nature of the applicant’s prior record.  The applicant will have to learn to stay away from guns. 

1. I would somewhat reduce the penalty for charge 18 but, because no order for cumulation was made in respect of it by the sentencing judge and I have taken a similar course, this has no net effect upon the total effective sentence.  I have not myself cumulated any part of this element of the sentence because the cumulation in respect of charge 3 provides a sufficient penalty with respect to possession of the firearm. 

1. I would declare pursuant to s 6F of the Sentencing Act 1991 that the applicant is resentenced as a serious violent offender for the offence of threat to kill and direct that such declaration be entered into the records of the Court pursuant to s 6F(1).

1. I would declare pursuant to s 6AAA of the Sentencing Act 1991 that but for his pleas of guilty I would have sentenced the applicant to a total effective sentence of nine years six months’ imprisonment with a non-parole period of six years three months. 

BONGIORNO JA:

1. I agree that leave to appeal should be granted and the appeal upheld, the applicant re-sentenced in accordance with the proposed sentences of Osborn JA and the declaration that he has made.

HARGRAVE AJA:

1. I also agree.