Yeomans v The Queen

[2011] VSCA 277

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0043
JAKE YEOMANS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, ASHLEY JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2011
DATE OF JUDGMENT:	13 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 277
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Vic) v Yeomans (Unreported, County Court of Victoria, Judge Gullaci, 18 February 2010)

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CRIMINAL LAW – Sentencing – Armed robbery – Aggravated burglary – Robbery – Theft – Young offender – Prior convictions – Judge found little prospect of rehabilitation – No error in treatment of youth and rehabilitation prospects – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P A S Skehan	Mr D McGregor
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I have had the advantage of reading in draft the reasons for judgment of Ross AJA.  For the reasons his Honour gives, I too would dismiss the appeal.

ASHLEY JA:

1. I agree with Ross AJA that the applicant should have leave to appeal against sentence, but that the appeal should be dismissed.  The only specific error for which appellant’s counsel contended was not established.  The head term imposed was quite long for such a young man;  but he had to be sentenced for an extensive number of discrete offences, and the head term was the product of individual sentences and orders for cumulation which were unremarkable – and in some instances merciful. 

1. The sentencing judge allowed for a substantial potential period of parole.  I think that it will be of critical importance, if the appellant is to have any chance of escaping from a pattern of repeat offending and gaol, that he have substantial assistance from the parole service in whatever period of parole is granted to him.  Such assistance may provide the only antidote to the potentially corroding influence of years spent by a young man in an adult prison.

ROSS AJA:

1. On 9 February 2010 the applicant pleaded guilty before a County Court judge at Melbourne to 28 offences. The offences arose from 19 separate incidents between 15 April and 2 June of 2009, and included a number of burglaries, robberies and thefts.

1. The applicant’s plea was heard on 9 and 18 February 2010 and he was sentenced as follows:

Charge on Presentment	Offence	Maximum	Sentence	Cumulation
1	Robbery	15 years [Crimes Act1958, s75(2)]	18 months	4 months
2	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
3	Theft	10 years [Crimes Act 1958, s72]	3 months	1 month
4	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
5	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
6	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
7	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
8	Aggravated burglary	25 years [Crimes Act1958, s77(1)]	2 years	2 months
9	Armed robbery	25 years [Crimes Act1958, s75A(1)]	3 years	Base sentence
10	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
11	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
12	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months[1]	1 month
13	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
14	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months[2]	1 month
15	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
16	Theft	10 years [Crimes Act1958, s72]	3 months	1 month
17	Armed robbery	25 years [Crimes Act1958, s75A(1)]	3 years	9 months
18	Aggravated burglary	25 years [Crimes Act1958, s77(1)]	2 years	2 months
19	Robbery	15 years [Crimes Act 1958, s75(2)]	18 months	4 months
20	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
21	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
22	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
23	Theft	10 years [Crime Act 1958, s72]	3 months	1 month
24	Burglary with intent to steal	10 years [Crimes Act1958, s76(1)]	9 months	1 month
25	Theft	10 years [Crime Act 1958, s72]	3 months	1 month
26	Burglary with intent to steal	10 years [s76(1) Crimes Act 1958]	9 months	1 month
27	Burglary with intent to steal	10 years [s76(1) Crimes Act1958]	9 months	1 month
28	Theft	10 years [Crimes Act1958, s72]	3 months	1 month

[1]The sentencing judge initially sentenced counts 12 and 14 as theft offences and imposed 3 months’ imprisonment in respect of each: Director of Public Prosecutions (Vic) v Yeomans (Unreported, County Court of Victoria, Gullaci J, 18 February 2011) (‘DPP v Yeomans’), [69]. The sentences on each count were subsequently amended to 9 months’ imprisonment in accordance with sentences imposed on other burglary counts: Record of Orders CR 09-01702, 18 February 2010, 1; Presentment Y01638165.

[2]See footnote 1 above.

1. The cumulation orders produced a total effective sentence of 6 years and 7 months’ imprisonment.  The sentencing judge fixed a non parole period of 4 years’ imprisonment.  The judge also stated that had the applicant not pleaded guilty he would have imposed a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years and 6 months.[3]

   [3]Compensation orders totalling $11,689.28, in favour of 12 victims, were also made: DPP v Yeomans [85]–[96].

1. Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending.

Overview of the Facts[4]

[4]Facts as set out in the Crown Opening (Exhibit A) were not disputed;  DPP v Yeomans, [2]; DPP v Yeomans, Transcript of Plea Proceedings, 9 February 2010 (‘Tn’) 2–16.

1. In 19 separate incidents between 15 April 2009 and 2 June 2009, the applicant committed a number of burglaries (including two aggravated burglaries), robberies (including two armed robberies) and thefts in the Box Hill area. The applicant was aged 18 at the time of the offending.

1. On 15 April 2009 the applicant, in company with another young man, went to the Goodwill Travel Agency in Box Hill.  The victim, Ms Ly, was at work there when one of the men sat on her desk.  When Ms Ly’s colleague entered the room the applicant crawled under the desk and grabbed Ms Ly’s handbag.  As the two men tried to run away, Ms Ly grabbed the shirt of one of them.  She was pushed backwards but did not fall.  She followed them out of the suite and grabbed the shoulder strap of her bag.  The strap broke and the men ran away with the bag, which contained her mobile phone, her wallet, keys and other items, worth approximately $720 (Count 1 – robbery).

1. On 18 April 2009 the applicant unlawfully gained entry to the Box Hill Health Shop by smashing a hole in a plaster wall into the office area.  He stole an Acer laptop computer worth about $1,000 and $300 cash (Count 2 and 3 – burglary and theft).

1. On 30 April 2009 the applicant stole a Breville 820 Coffee Machine worth $549 from the Myer Knox City store in Wantirna South.  He was captured on CCTV footage selecting the item, and exiting the store (Count 4 – theft).  Several days later the applicant went to the same Myer store and stole two T-shirts valued at $98.  He was again captured on CCTV footage (Count 5 – theft).

1. On 9 May 2009 the applicant and an unknown man went to the Salvation Army East Care office in Box Hill and smashed the glass front door to gain entry (Count 6 – burglary).  Doors leading off the reception area were kicked in and blood was left on some walls and the floor.  Once inside they stole two safes which contained gift cards, entry swipe cards, about $487 cash, a $20 cheque marked out to the Salvation Army, $55 worth of stamps and a small quantity of Express Post envelopes (Count 7 – theft).  Repairs to the premises cost about $2,200.

1. On 12 May 2009 the applicant returned to the Box Hill Health Shop (where he  had punched a hole in the wall during the commission of earlier offences the subject of counts 2 and 3).  The owner of the shop, Ms Lee, had seen the applicant on 15 April 2009 when he robbed the neighbouring Goodwill Travel Agency.  Ms Lee was inside her shop, having locked her door at 4pm because of earlier break-ins.  The applicant approached the office door and asked Ms Lee to open it.  Ms Lee indicated that the shop was closed.  The applicant made further requests before walking away. Ms Lee unsuccessfully attempted to call 000 and then telephoned her husband. Whilst she was on the telephone, the applicant returned, yelling for her to open the door.  He kicked the door seven or eight times, then stopped and went around to the side of the office where he had previously made the hole in the wall.  Ms Lee could hear the applicant banging on the wall and ran into the office to see if she could stop him from coming through, but she could see that the wall was already cracking.  The applicant broke through the wall just next to the earlier hole and climbed through. When Ms Lee tried to prevent him from entering he pushed her, causing her to fall to the ground and hit her left elbow and shoulder on some wood and boxes.  Ms Lee tried to call her husband again but the applicant grabbed the phone out of her hand and threw it away.  At this point Ms Lee noticed that the applicant was carrying a knife which he waved in front of her face whilst demanding money.  Ms Lee feared for her life.  She went to the shop counter and placed $1,000 in notes and coins in a bag.  The applicant demanded more, but Ms Lee told him she did not have any more.  The applicant then went back to the office and picked up Ms Lee’s handbag. Ms Lee grabbed it and told him she did not have any money in her bag.  He took out her purse and left the shop.  The purse contained $200 cash and Ms Lee’s licence and debit card (Count 8 and 9 – aggravated burglary and armed robbery).

1. On the same evening the applicant entered the nearby premises of Barnett & Barnett Solicitors.  He gained entry by climbing into the roof of a disused adjacent office (Count 10 – burglary).  Nothing was stolen.

1. On 14 May 2009 the applicant stole car freshener and a packet of windscreen wipes from Quix Service Station in Nunawading.  CCTV footage captured the offence (Count 11 – theft).

1. Later that night the applicant entered the Little Lamb Hot Pot Restaurant in Box Hill via an unlocked window on the roof.  He stole $200 cash from the till (Count 12 and 13 – burglary and theft).

1. On the same night the applicant also entered Box Hill Cellars, breaking through the roof and ceiling.  He left without stealing anything after setting off the alarm (Count 14 – burglary).  $1,300.00 worth of damage was caused.

1. Just after midnight on Friday 15 May 2009 the applicant entered Nunawading Cellars, by breaking through the roof and ceiling, and stole $2,500 cash from a metal cabinet and the till (Count 15 and 16 – burglary and theft).  $770 worth of damage was caused.

1. The remainder of offences took place on 2 June 2009.

1. At approximately 2.30pm the applicant entered Bayswater Dry Cleaners in Bayswater where he approached the owner, Ms Mealor.  He demanded money and she told him to get out.  The applicant pushed Ms Mealor to the ground at which point she saw a knife in his hand.  Ms Mealor feigned injury and remained doubled up before trying to get to the front of the shop.  The applicant picked up a decoy cash bag from under a desk and made another demand for money.  Ms Mealor said she did not have any.  As the applicant opened the two top drawers of the desk, Ms Mealor tried to grab the bag to distract him from the drawers.  After trying to open the till and being unsuccessful, the applicant fled the store with the leather bag (Count 17 – armed robbery).

1. At approximately 5.30pm the applicant banged on the doors of hairdressing salon Stylofax in Nunawading, where the owner Ms Liew was in the process of closing.  Ms Liew opened the door and asked the applicant what he wanted.  The applicant stepped in and pushed Ms Liew hard in the upper chest causing her to fall over, injuring her wrist and coccyx.  The applicant went over to the till demanding money.  Ms Liew activated the alarm and ran outside.  Whilst inside the store, the applicant dropped the till.  He stole $100 cash (Count 18 and 19 – aggravated burglary and robbery).  Ms Liew sustained a fractured wrist, requiring it to be in plaster for 6 weeks and ongoing physiotherapy, and a fractured coccyx.

1. At an unknown time, the applicant went to Whitehorse Road, Box Hill, where he committed a further seven offences.  He entered a dental practice, Smile Gallery, by dislodging the heavy main glass door (Count 20 – burglary).  Nothing was stolen however the cost of fixing the door was $4,000.

1. The applicant entered nearby Skysea Home Loans by kicking in the doors to the upstairs offices (Count 21 – burglary).  Nothing was stolen, however, the cost to replace the two doors was $594.

1. The applicant went to 960 Whitehorse Road, and gained access to a number of tenants’ offices by destroying the locked doors to the individual suites.  He entered the office of software company XORA Australia and stole a laptop computer, laptop bag and adaptor lead, as well as $20 of coins (Count 22 and 23 – burglary and theft). The computer was subsequently returned minus the adaptor.  He then entered the offices of JS NAM Lawyer Partnership and stole a computer worth $2,400 (Count 24 and 25 – burglary and theft).  He also entered the office of call centre Well Done Group (Count 26 – burglary).  Nothing was stolen.

1. The applicant went to the Health Arts College on Ellingworth Parade, Box Hill, and gained entry by smashing a hole in the glass front door and unlocking it. All office doors and internal doors were opened with the bottom half of a door smashed to access one closed office.  The applicant stole a cash tin containing about $1,000 (Count 27 and 28 – burglary and theft).  Repairs cost over $2,000.

1. The applicant was arrested on 3 June 2009 and when interviewed made extensive admissions to the offences.  He also told police that he had a $1,000 a day ‘smack’ habit until about three weeks prior to his arrest.

1. I now turn to the grounds of appeal.

Grounds of Appeal

1. The applicant advances two grounds of appeal:

(i)         the sentences imposed were manifestly excessive in all the circumstances;  and

(ii)        the learned sentencing judge erred in finding that the applicant had ‘little prospect of rehabilitation’.

1. It is convenient to deal with the second ground first.

Ground 2

1. At paragraph [33] of his reasons for sentence the sentencing judge concluded that the applicant had ‘little prospect of rehabilitation’.  The applicant submits that a finding in these terms was not open having regard to:

(i)        the age of the applicant;

(ii)       the evidence of emerging maturity and insight;

(iii)      the past capacity of the applicant to conform to his parole;

(iv)      the fact that the applicant’s offending was inextricably linked with his drug using and that when not abusing drugs the applicant is capable of conforming to the law;  and

(v)       the content of Ms Warren’s report to the effect that the applicant did not suffer from any major mental health disorder, was optimistic in his outlook and was understanding to a degree of the nexus between his drug use and offending (a process of insight that would be expected to have continued with maturity).

1. The matters relied upon by the applicant have to be viewed in the context of the other evidence before the sentencing judge.  In that regard his Honour provided the following reasons in support of his conclusion that the applicant had ‘little prospect of rehabilitation’:

(1)       Your past criminal offending.

(2)       That you have little or no support structure in the community;  and

(3)that you have unresolved serious drug issues which you did not fully acknowledge, according to the report of Ms Warren.

(4)That there is a real risk that you will relapse into drug use and commit similar offences in the future;  and

(5)that you have unresolved, underlying aggressive tendencies that are disinhibited when you are intoxicated, under the influence of drugs or fear drug withdrawal, as Ms Warren concluded.

1. I note first that the findings which provided the basis for his Honour’s conclusion are supported by the evidence.

1. In relation to finding (1) the applicant has 120 previous convictions, from eight court appearances between 2001 and 2009.[5]  These included burglary x 17, assault with a weapon x 2, assault, reckless conduct endangering a person, attempted robbery x 2, aggravated burglary x 2, theft x 31, and affray as well as numerous other convictions.[6]

   [5]           DPP v Yeomans, [30].

   [6]Ibid [31]; Tn 51.

1. On 4 June 2009, the applicant was sentenced to 12 months’ detention in a youth justice facility for burglary and car theft offences which occurred on 12 and 13 March 2009.  The sentence expired on 14 June 2010.  As a result of his behaviour in detention, the sentence was transferred to an adult prison.[7]

   [7]           DPP v Yeomans, [28]–[29].

1. The applicant’s past offending has resulted in an escalation in the type of sentences imposed, but with no apparent impact on the applicant’s subsequent behaviour.  As the sentencing judge put it during the plea hearing:

And here you have got an escalation of sentences that there is no deterrence at all.[8]

[8]Tn 55 lines 4–5.

1. In such circumstances specific deterrence assumes particular significance.

1. The applicant relies upon his past capacity to conform to his parole.[9]  This is a reference to the fact that the applicant did not reoffend for a period of four or five months after his release on parole[10] and that when he was not using drugs he can present as a young person with potential who is able to meet appointments and commitments.[11]  His Honour specifically referred to this matter at [21] of his reasons for sentence.  It should also be noted that a number of the applicant’s recent offences were committed while he was on parole[12] and the applicant has minimised the extent of his drug dependency.

   [9]See [27](iii) above.

   [10]Tn 41 lines 8–10.

   [11]Ibid 44, lines 14–20.

   [12]Though that fact did not feature in the presentment: Tn 41 lines 24-28; 76 lines 4-31, 77 lines  1–5.

1. In relation to the last point his Honour refers to the applicant’s ‘unresolved serious drug issues’ and the ‘real risk’ of relapse in findings (3) and (4).[13]

   [13]DPP v Yeomans [36]–[37].

1. The applicant described his drug use as ‘recreational’ in his assessment interview with Ms Warren, a consultant forensic psychologist, and did not consider that he had a major drug problem or dependency.  In Ms Warren’s report she says:

He acknowledged use of stimulant drugs of amphetamine beginning at the start of 2009 and acknowledged that he then felt dependent upon the drug whereby he described it as a habit.  The latter comment suggests more drug dependence than he is otherwise acknowledging even to himself … This youth’s explanation for his offending … as ‘drug related’, suggests a more severe problem than he was remembering when seen for this assessment and as discussed throughout this report.  His belief that gaol is ‘rehab’ is also misplaced based upon recidivism statistics and his own relapse after release from Malmsbury.[14]

[14]Elizabeth Warren, Consultant Forensic Psychologist, Psychological Report (22 January 2010) (‘Warren Report’) 5 and 6.

1. Drug addiction is relevant to the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being addressed.[15]  His Honour’s finding that there is a ‘real risk’ of ‘relapse into drug use’, such that the applicant would commit similar offences in the future, is an inference which is open on the evidence.  The applicant was not drug free during his recent imprisonment at Malmsbury[16] and his history of prior offending gives little cause for optimism.

   [15]R v McKee (2003) 138 A Crim R 88, 92 (Buchanan JA).

   [16]Warren Report, 5.

1. As to finding (2),[17] the only support the applicant is getting in custody is from his grandparents, who visit him once a fortnight.[18]  During the plea the applicant’s counsel attributes his recent offending, in part, to ‘the fragile nature of the support network that he does have in the community’.[19]  The applicant’s mother lives in Tasmania and he has a conflictual relationship with his father.  While his grandparents are prepared to have the applicant reside with them on his release, he has had that opportunity in the past.[20]

   [17]DPP v Yeomans, [35].

   [18]Tn 44 lines 30–31 and 45 lines 9–11.

   [19]Ibid 42 lines 27-30.

   [20]Ibid 49 lines 5-15.

1. In relation to finding (5)[21] the report prepared by Ms Warren concluded:

Despite his belief that [t]he ‘gaol is rehab’ it is recommended he access what therapeutic programs he can during his current gaol term as he has underlying and unresolved aggressive tendencies that are disinhibited when he is either intoxicated or fearing drug withdrawal, as indicated in the offences now before the court.  In addition a parole period with a focus on assisting him establish vocationally would assist plus perhaps a parenting course given his desire to begin a family but without the beneficial example of sound parenting practices.[22]

[21]DPP v Yeomans, [38].

[22]Warren Report, 7.

1. Ms Warren’s report clearly supports his Honour’s finding.

1. The applicant relies on other aspects of Ms Warren’s report,[23] but that evidence must be viewed in its totality.

   [23]See [27](v) above.

1. I now turn to briefly deal with the two other specific matters advanced on behalf of the applicant.[24]  As to the applicant’s age, the sentencing judge was well aware of the applicant’s circumstances.  At paragraph 18 of his reasons for sentence the judge says:

You are still a young man of 19 years of age and the court has an interest in enhancing your prospects of rehabilitation, if that is possible.

[24]See [27] above.

1. The applicant’s youth is clearly relevant, but as has often been pointed out, R v Mills[25] is not authority for the proposition that in the case of youthful offenders, rehabilitation is invariably the overriding factor in sentencing.  As Maxwell P said in R v Wyley:[26]

[w]hat Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender’s future, as well as to the past conduct for which the offender is being sentenced.

Mills constantly reminds sentencing courts, and this court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future.  But that consideration is not unique to young offenders.  Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence.

[25][1998] 4 VR 235.

[26][2009] VSCA 17, [19]–[20].

1. In relation to the evidence of emerging maturity and insight[27] his Honour had regard to Ms Warren’s report and to her observation that the applicant accurately identified the possibility of relapsing into drug use as an impediment to achieving his goals.[28]  Further, in his reasons his Honour made specific mention of these matters:

   [27]See [27](ii) above.

   [28]DPP v Yeomans, [14](4).

[15]    I turn to factors in your favour …

[21]    (6) According to a youth parole report tendered on your behalf, you have made good progress whilst on youth parole, until you commenced reoffending …

[50]    I turn to matters of significance in my view …

[57]    (7) that there may be signs of maturity emerging as evidence by you remaining drug free whilst in an adult prison and completing a number of courses.

1. The sentencing judge had regard to all of the considerations relevant to his assessment of the applicant’s rehabilitation prospects.  In the circumstances, I am satisfied that his Honour’s finding was reasonably open.  It follows that ground 2 fails.  I now turn to the first ground of appeal.

Ground 1

1. At the plea the Crown submitted that an appropriate sentence fell within the range of six to eight years’ with a non-parole period of four and half to six years’.[29]  The applicant’s counsel conceded that the offences were serious and that in the circumstances a custodial sentence in an adult environment was the only available sentencing option,[30] but submitted that the total effective sentence should be less than the lower end of the range put by the prosecution.[31]

   [29]Tn 21 lines 25–30.

   [30]Ibid 56 lines 6–8.

   [31]Tn 60 lines 6–14.

1. In the applicant’s written submission each of the individual sentences, the total effective sentence and non-parole period were challenged on the basis that they were manifestly excessive.  During the course of oral argument the applicant’s case focussed on the principle of totality.  In short, it was put that the total effective sentence was ‘crushing’ and offended the principle of totality.

1. As Redlich JA observed in DPP v Alsop,[32] the totality principle has two limbs:

First, a sentencing judge must ensure that the aggregation of the sentences appropriate for each offence are a just and appropriate measure of the total criminality involved.  Second, the overall sentence should not be ‘crushing’ in the sense that it would destroy any reasonable expectation of a useful life after release.  The critical question then is whether after allowing for mitigating circumstances the total sentence … reflects what is appropriate for the overall criminality of the convicted person.

[32][2010] VSCA 325, [30].

1. The contention that the sentence is manifestly excessive was expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.  The ground of manifest excess has been described as ‘a stringent one, difficult to make good’.[33]  It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion that he did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[34] 

   [33]         DPP v Karazisis [2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA; with whom Warren CJ and Maxwell P agreed).

   [34]Ibid.

1. The applicant advanced three matters in support of the contention that the sentence imposed was manifestly excessive:

(i)        his Honour failed to have regard to the fact that the applicant’s plea of guilty was accompanied by remorse;

(ii)       his Honour failed to have sufficient regard to the extensive admissions made by the applicant during his police interview; and

(iii)      the applicant’s youth was an important sentencing consideration.

1. I am not persuaded that these factors make good the applicant’s contention.

1. As to the first matter, a sentencing judge possesses a wide discretion in interpreting the quality and sentencing implications of a plea of guilty[35] and may take into account a range of matters including the strength of the Crown case; the fact that witnesses and the victim’s family and friends are spared the trauma of a trial;  the community benefit in terms of the time, convenience and money saved; and the demonstrated remorse of the accused.[36]

   [35]R v Gray [1977] VR 225, 232 (McInerney and Crockett JJ), approved in R v Donnelly [1998] 1 VR 645, 648 (Charles JA, with whom Winneke P and Hedigan AJA agreed).

   [36]R v Donnelly [1998] 1 VR 645, 648-9 (Charles JA, with whom Winneke P and Hedigan AJA agreed); and see also R v Pajic [2009] 23 VR 527, 532–3 (Redlich JA).

1. During the plea hearing the applicant’s counsel submitted that the applicant was ‘someone capable of remorse’ and that his answers in the record of interview were ‘indicative of significant remorse’.[37]  The record of interview was the only evidence of remorse before the court.  In his reasons for sentence his Honour specifically referred to the applicant’s early plea of guilty and to the record of interview.[38] His Honour also referred to the fact that the applicant had made extensive admissions, even before the police put their allegations,[39] and to the fact that the applicant told police that he ‘felt like a dog for doin’ it’.[40]

   [37]Tn 30 lines 19-31.

   [38]DPP v Yeomans, [16] and [17].

   [39]Ibid [5].

   [40]Ibid [7].

1. In dealing with the factors in the applicant’s favour in his reasons for sentence his Honour specifically referred to these matters.  At paragraphs 15–17 of the reasons for sentence his Honour said:

   I turn to factors in your favour.

   (1)   Your plea of guilty was entered at an early stage and this entitles you to a sentencing discount.  Had this matter proceeded to trial, it would have been a lengthy trial and involved the numerous victims being required to give evidence.

   (2)   You were cooperative with police and made full admissions.

2. While            his Honour did not specifically use the word ‘remorse’ in his reasons he clearly had regard to the evidence said to support the applicant’s remorse, that is, the applicant’s answers in his record of interview.  It is also apparent from his reasons that his Honour had regard to the extensive admissions made by the applicant during his police interview.

1. As to the final matter relied upon in support of the contention that the sentence was manifestly excessive – the applicant’s youth – this was undoubtedly a relevant sentencing consideration.  But as I have set out earlier, at paragraphs 42–43, his Honour was well aware of the applicant’s age and took it into account.

1. The essence of the applicant’s case was that the sentencing judge failed to have adequate regard to the principle of totality.  I am not persuaded that his Honour erred in the manner contended.

1. In his reasons for sentence his Honour specifically referred to the fact that the applicant was serving a sentence for other offences at the time he fell to be sentenced in respect of these matters.[41]  His Honour also referred to the fact that the applicant had served eight months of that sentence[42] and he acknowledged that fact when setting the applicant’s non-parole period.[43]  Further, during the course of the plea hearing his Honour specifically addressed the issue of totality and the need to avoid a crushing sentence.  In an exchange with the prosecutor over the upper end of the sentencing range being proposed by the Crown his Honour said:

   [41]DPP v Yeomans, [20] and [28].

   [42]Ibid [29].

   [43]Ibid [62].

[i]f I was to accede to the Crown submission that the head sentence be eight years as a head sentence with a maximum range would be eight years.  If you add that 12 months, he could conceivably be required to serve it all by the time it gets – in fact by the time the problem wouldn’t, one would think, would not deal with this matter of any parole that I fix, any minimum term for some time.  That would mean, wouldn’t it, that it would be in fact nine years with …

… potentially seven years if it was made cumulative.  It just seems to me that when you’re dealing with an 18 year old offender who has committed numerous serious breaches but in circumstances where one can hardly be surprised that he’s drifted into drug use, mixing with people who are similarly affected, the lifestyle that he’s adopted of drug offending and committing offences, albeit of a serious nature.  I mean what chance has he had in life?  Buckley’s or none, if one can use a common phraseology but I mean that’s not to say that he needs to – he’s going to escape punishment, it doesn’t, but he’s 18 and he’s, as I indicated to Mr Thomas, he’s now spent 8 months in adult custody.  There’s no guarantee, not that it’s a matter that concerns me directly, but there’s no guarantee he’s going to remain at Loddon when he gets sentenced for 28 offences or 26 offences including the serious nature of the offences now.  He could end up anywhere, he could end up in a – he’s likely to at least initially go to a high security prison in an adult system at the tender age of 19.  It’s assessing questions of totality and crushing sentences, that’s a significant consequence …

The real issue that I was raising with you as the Crown prosecutor was on the question of totality and the imposition of what ultimately is an appropriate term of imprisonment.  It seemed to me that if one took into account 12 months that he’s – or the bulk of which he’s served in an – some in an adult gaol.  If you add that to the maximum range head sentence, that you’re looking at a very, very serious term of imprisonment indeed for a youthful offender who comes before this court in an adult gaol potential situation for the first time.[44]

[44]Tn 69 lines 3–31, 70 lines 1–4 and 28-31, 71 lines 1–7.

1. His Honour also specifically addressed totality in his reasons for sentence, at paragraph 23:

The court must, in the circumstances of your case, firmly keep in mind the principle of totality, so as to not impose a crushing sentence on you.[45]

[45]Also see DPP v Yeomans, [59].

1. What reveals manifest excess of sentence is a consideration of all of the matters that are relevant to fixing the sentence.[46]   

   [46]Hili v The Queen (2010) 272 ALR 465, 481 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

1. I have earlier set out the circumstances of the applicant’s offending.  It is common ground that the offences are serious[47] and that the applicant’s conduct terrified some of his victims.[48]  In addition to the objective seriousness of the offending his Honour had regard to the need for general deterrence;[49] denunciation[50] and the need to protect the community.[51]  Specific deterrence was also relevant given the applicant’s prior convictions and that he had little prospect of rehabilitation.[52]

   [47]Tn 56 line 5.

   [48]Tn 57 line 10.

   [49]DPP v Yeomans, [48].

   [50]Ibid [49].

   [51]Ibid [58].

   [52]Ibid [30]–[38].

1. In addition to these factors his Honour also had regard to a number of mitigating factors, in particular:

(i)           the applicant’s plea of guilty, at an early stage, and the fact that he was cooperative with police and made full admissions;[53]

[53]Ibid [16]–[17].

(ii)          the applicant’s age[54] and the fact that he had a deprived and dysfunctional background without any support or role models;[55]

[54]Ibid [18].

[55]Ibid [25].

(iii)        the applicant was currently drug free and serving a sentence of 12 months, on related offences, in an adult prison;[56]

[56]Ibid [19]–[20].

(iv)         the applicant had completed some courses while in custody and according to a youth parole report had made good progress on parole, until he commenced reoffending;[57]  and

(v)          in sentencing on some of the counts there were good reasons why there should be substantial concurrency, particularly in respect of the counts of aggravated burglary and armed robbery arising out of the one series of events.[58]

[57]Ibid [21]–[22].

[58]Ibid [24], [26].

1. The sentences imposed could be properly characterised as stern but they were within range, albeit at the high end of the range.  In dealing with such appeals it is important to bear in mind that sentencing is an exercise of broad judicial discretion and on appeal this Court is not entitled to simply substitute its opinion for that of the sentencing judge.   As their Honours McHugh, Hayne and Callinan JJ said in Pearce v The Queen: ‘[S]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision’.[59]

   [59](1998) 194 CLR 610, 624.

1. While the oral argument focussed on the principle of totality I also note, for completeness, that the individual sentences imposed and the cumulation ordered were unremarkable. 

1. In this context, counsel for the applicant sought to rely on three cases in respect of the appropriate sentencing range for the offence of armed robbery.[60]  In my view none of these cases assist the applicant.  In Van Staveren the appellant had no prior convictions and the Crown conceded that the sentencing judge had erred in failing to give proper consideration to whether a youth training centre order was appropriate in the circumstances.  In Diss this Court rejected the contention that a sentence of 3 years’ and 6 months imprisonment for one count of armed robbery was manifestly excessive.  The appellant was 19 years of age at the time of the offence and had seven prior convictions, although, unlike the present case, none of his prior convictions were for violent offences.  In O’Blein it was common ground that a sentence of 30 months’ imprisonment in respect of one count of armed robbery was within range.  The only real issue in that appeal was whether the sentence should be served in a youth justice centre rather than in an adult prison.  Similar considerations do not arise in this case.  I have also had regard to the serving of sentences in respect of armed robbery set out in R v Broadbent.[61]  The individual sentences in the present case fall within the range of sentences reflected in the cases referred to in Broadbent.  I am not persuaded that any of the individual sentences, or any of the orders as to cumulation, were manifestly excessive.

   [60]R v Van Staveren [2001] VSCA 41;  R v Diss [2002] VSCA 14;  R v O’Blein [2009] VSCA 159.

   [61][2009] VSCA 320.

1. For the foregoing reasons I am not persuaded that the sentences imposed in this case were manifestly excessive, nor am I persuaded that the sentencing judge fell into error such as to warrant correction on appeal.  I would grant leave to appeal but dismiss the appeal.

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