Younan v The Queen
[2017] VSCA 207
•18 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0168
| ANDI YOUNAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and TATE JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 June 2017 |
| DATE OF JUDGMENT: | 18 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 207 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1020 (Judge Ryan) |
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CRIMINAL LAW – Sentence – Armed robbery (two charges), conspiracy to commit armed robbery (one charge) and being a prohibited person in possession of a firearm (two charges) – Total effective sentence of six years and eight months’ imprisonment – Non-parole period of four years and four months – Manifest excess – Whether judge erred in approach to conspiracy charge – Venue closed – Redirected planning to second armed robbery 15 minutes later – Risk of double punishment – Prospects of rehabilitation – Appeal allowed – Re-sentenced to a total effective sentence of five years and five months’ imprisonment – Non-parole period of three years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Farrington | Stary Norton Halphen |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
TATE JA:
The appellant pleaded guilty to two charges of armed robbery, one charge of conspiracy to commit armed robbery, and two charges of prohibited possession of a firearm. He was sentenced in the County Court on 25 July 2016 as follows:[1]
[1]DPP v Younan [2016] VCC 1020 (‘Reasons’).
Charge Offence Maximum Sentence Cumulation 1 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years’ imprisonment 12 months’ imprisonment 4 months 2 Armed robbery [s 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 18 months 3 Conspiracy to commit armed robbery [ss 321(1) and 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment 18 months 4 Armed robbery [s 75A(1) Crimes Act 1958] 25 years’ imprisonment 3 years’ imprisonment Base [[2]] 5 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years’ imprisonment 12 months’ imprisonment 4 months Total effective sentence 6 years and 8 months’ imprisonment Non-parole period 4 years and 4 months Pre-sentence detention declared 724 days 6AAA statement: 9 years and 6 months’ imprisonment with a non-parole period of 6 years [2]The table is prepared in accordance with the Record of Orders of the County Court. The submissions of both Younan and the Crown mistakenly treated the sentence on charge 2 as the Base. The mistake is not material.
The appellant relies on two grounds of appeal:
(1) The judge erred in that:
(a) the individual sentences imposed are manifestly excessive;
(b)the orders for cumulation resulted in a sentence that is manifestly excessive;
(c)the total effective sentence of 6 years and 8 months’ imprisonment is manifestly excessive;
(d)the non-parole period of 4 years and 4 months is manifestly excessive.
(2) The learned sentencing judge erred in accepting that the applicant was a high risk of general reoffending, and erred in failing to address the applicant’s prospects of rehabilitation.[3]
[3]Leave to appeal was granted by Kyrou JA: Younan v The Queen (Unreported, Supreme Court of Victoria Court of Appeal, 12 January 2017) (‘Leave reasons’).
For the reasons that follow, we consider that the appeal should be allowed.
Armed robberies on hotels
On 26 July 2014 at about 12:55 pm Younan drove a stolen Ford Territory to the Meadow Inn Hotel at Fawkner.[4] He was with two unknown offenders. Younan and one of his co-offenders left the vehicle and ran into the premises, while the third man moved to the driver’s seat. Younan was disguised, wearing a black hooded ‘Fox’ jumper, grey tracksuit pants, and black Nike runners. His face was covered with what appeared to be sheeting over which he wore dark sunglasses, and he wore gloves. He was carrying a black and silver rifle with a bolt on the left. Younan’s co-offender, also disguised, was carrying a large curved bladed ‘Gurkha’ knife. After entering the venue, the two men went directly behind the gaming counter. Younan pointed the gun at a staff member, and demanded, ‘Where’s the money? Take me to the fucking money, fucking move, hurry, take us to the money.’ He went to the cash register in the bar section and took the cash drawer. He demanded to be taken to the back of the premises, but staff told him that they did not have the key to that area. Younan and his co-offender ran from the premises, got into the stolen vehicle, and drove away. They had been in the venue for 50 seconds or so and stole $1,800 in cash. All these events were recorded on CCTV. The actions formed the basis of part of charge 1 (prohibited person possessing firearm) and the basis of charge 2 (armed robbery).
[4]This description of the circumstances of the offending is taken from the Reasons and the Summary of Prosecution Opening for the plea.
A tracking, listening and recording device was fitted to the stolen Ford Territory on 31 July 2014, pursuant to a Surveillance Device Act Warrant. The following events forming the basis of the charge of conspiracy to commit armed robbery (charge 3) were thereby recorded. On 1 August 2014, Younan with a co-offender, ‘Nathan’,[5] decided to go to the Taylors Lakes Hotel and rob it with arms. Younan picked up Nathan from his parents’ house. Nathan took over the driving and they drove for a while and then parked at Lentine Street, Taylors Lakes. Younan got out of the vehicle and took a large bag from the boot of the vehicle containing the sawn-off shotgun, the Gurkha knife and assorted clothing to disguise themselves. The Gurkha knife was used to fashion two balaclavas from black material in the bag. As there were no gloves in the bag both Younan and Nathan took off their socks so they could be used instead. There were discussions between Younan and Nathan regarding the respective roles they would play in the armed robbery and it was decided that Younan would go and get the money while Nathan remained in the car. The plan was to commit the armed robbery on the gaming venue at 5:00 am, at about closing time. They drove to the Taylors Lake Hotel arriving at the venue at 5:03 am and found the premises to be closed. They performed a lap of the premises searching for an open door. Fearing that the police might be called if they stayed around, they drove off at high speed.
[5]This is a pseudonym adopted to ensure there is no identification of the co-offender, who was aged 15 at the time of the offence and 16 when sentenced in the Children’s Court on 5 February 2015. Nathan was co-accused in relation to charges 3 and 4.
Younan and Nathan drove instead to the Meadow Inn Hotel. As Nathan drove Younan could be heard to rack the rifle into a loaded position and tell Nathan he was ‘ready’. At about 5:18 am they parked the Ford Territory directly outside the gaming entrance doors. Younan carried the sawn-off rifle. He ran from the vehicle pointing the rifle at the security guard telling him to ‘get on the ground’ as he went through the entrance.
These events at the Meadow Inn Hotel were also recorded on CCTV. Younan can be seen wearing a black ‘Fox’ hooded jumper with an orange fluorescent vest over the top, grey tracksuit pants, and white/red Nike runners. He had white socks over his hands, a black balaclava and carried the sawn-off rifle. Younan and Nathan are seen running to the gaming area telling patrons that they were all to ‘get down and stay down’. They then took the money from behind the gaming counter and the bar. Younan pointed the rifle at a staff member and told her to open the strong room, but after they went to the strong room she said she could not open the safe. Nathan started to hit the safe with the knife, while Younan broke the glass windows of the cashier counter with the butt of the rifle. Younan and Nathan then ran from the premises and drove away. Younan was in the venue for a total of 78 seconds and stole $1,200 in cash. These actions formed the basis of part of charge 1 (prohibited person possessing a firearm) and the basis of charge 4 (armed robbery).
Younan and Nathan drove to the house of Younan’s girlfriend, where they parked the stolen Ford Territory, changed out of their disguises and back into their original clothing. They packed the items used for disguise and the weapons back into the bag. Later on 1 August 2014 police executed a search warrant at these premises and found, amongst other things, a pair of white/red runners, an orange fluorescent vest, a pair of Nike black/white running shoes, an improvised black balaclava, a black hooded jumper, a silver single barrel rifle with a bolt on the left, a pair of grey tracksuit pants, a Gurkha knife, and a homemade longarm firearm (capable of being fired). Charge 5 related to this last item.
At the time that Younan committed these offences, he was affected by methylamphetamine (‘ice’) and was undergoing a wholly suspended sentence of 12 months’ imprisonment for arson and driving offences.
The judge’s findings
The judge described the two armed robberies as ‘serious examples of that offence’[6] and said that a ‘more frightening scenario of an armed robbery being committed whilst the offenders were adversely affected by ice, or methylamphetamine, I cannot imagine.’[7] He noted, however, that there ‘is no suggestion that the firearm used in the armed robberies was loaded.’[8]
[6]Reasons [8].
[7]Ibid [20].
[8]Ibid [9].
The judge acknowledged that Younan had originally been indicted on a large number of armed robberies and had entered a plea to a settled indictment. In those circumstances Younan was entitled to be treated as having entered a plea at the earliest opportunity.
Although only aged 22 at the time of committing the offences, the judge observed that Younan’s admitted prior criminal history included 19 findings of guilt or prior convictions from six court appearances. Younan had received non-custodial and custodial dispositions in respect of acts of violence including recklessly causing serious injury and making a threat to kill. He has prior convictions for offences under the Firearms Act 1990 including being a prohibited person possessing an unregistered firearm, possessing ammunition without a licence, carrying or using a loaded firearm in a public place, and carrying a handgun in an unsafe manner. For those offences Younan had received an aggregate sentence of nine months’ imprisonment to be served by way of an intensive corrections order which Younan breached.
The judge noted that Younan was born in Iraq and is of Assyrian Christian background. He was the second-youngest of five children. As a child he witnessed executions in Iraq, including beheadings. When he was aged about five his family fled to Turkey where they were vilified and Younan was abused on a number of occasions.[9] Ultimately his family arrived in Australia as migrants in or about 2000 when Younan was aged eight.
[9]Ibid [15].
Younan underwent English language tuition and thereafter attended Broadmeadows and Coolaroo primary schools. He attended Broadmeadows and Hume secondary colleges but struggled academically and left school part-way through Year 9. He had limited employment as a teenager at McDonald’s and Hungry Jack’s. While a teenager he was charged with rape, but ultimately acquitted. The judge described the effect of those proceedings on Younan as ‘profound’,[10] in that it was one of the motivating factors that caused him to leave school and to lose his limited employment. The judge noted the submission made on Younan’s behalf that it was while on remand for the charge of rape that Younan was first introduced to drugs of dependence, and that since his teens he has become an abuser of marijuana and ‘ice’.
[10]Ibid [16].
The judge noted that Younan suffers from a mild intellectual disability. He noted that a consultant psychologist, Carla Lechner, provided two reports, one in April 2015 and one in May 2016. When Younan consulted Ms Lechner in 2015, she assessed Younan as presenting with symptoms of depression at a clinical level and features of post-traumatic stress disorder. Ms Lechner found Younan to be ‘socially, cognitively and emotionally immature’.[11]
[11]Ibid [17].
The judge recorded that when Younan was examined again by Ms Lechner in 2016, she found that although he demonstrated a lowered mood, it was not at a clinical level. She attributed the improvement in Younan’s mood to his abstinence from drugs while in prison. The judge also noted a report of Anita Carroll, psychologist, dated 26 May 2016 that echoed the contents of the report of Ms Lechner.
The judge accepted that Younan has ‘a loving and supportive family who will support [him] on [his] release from prison, whatever form [the] sentence takes.’[12] The judge acknowledged that Younan had undertaken a number of courses in prison ‘which were generally related to drug rehabilitation and harm reduction, occupational health and safety, and food-handling.’[13]
[12]Ibid [19].
[13]Ibid [22].
The judge somewhat reluctantly had Younan assessed for a potential Community Correction Order (‘CCO’). A pre-sentence report was prepared dated 20 July 2016 from the Department of Justice and Regulation (‘the pre-sentence report’). The judge was critical of the standard of the pre-sentence report. In the Reasons, he said:
Whilst you were assessed as suitable for a community corrections order after a term of imprisonment I found the report to be less than helpful. The report lacked insight into the task at hand and had about it the characteristic of being a document written to a formula rather than one written to address the unique issues that you present with and that impact on a community corrections order being appropriate in your circumstances.
Of particular note, however, was that you were assessed as a high risk of general reoffending which to my mind impacts adversely on your suitability for a community corrections order.[14]
[14]Reasons [25]-[26].
The judge determined that the appropriate disposition was a sentence of imprisonment with a non-parole period. He remarked:
Whilst your personal circumstances, when coupled with your early plea must mitigate your sentence the objective seriousness of your offending when combined with your antecedents and the aggravating circumstance that the instant offending was committed by you while you were undergoing a suspended sentence mandates that the principles of general and specific deterrence together with protection of the community as well as just punishment result in a sentence involving the imposition of a head sentence with a non-parole period …
Your conduct must be denounced and you must be punished for it.[15]
[15]Ibid [28]-[29].
Application for leave to appeal
Kyrou JA granted leave to appeal on both grounds of appeal. He observed that it was reasonably arguable that the sentence for the conspiracy offence (charge 3) and the cumulation in respect of that offence were manifestly excessive:
The applicant’s complaints about the sentences imposed in relation to charges 1, 2, 4 and 5 are not very persuasive. The armed robberies were very serious and the patrons and staff who were in the Meadow Inn Hotel at the time would have found the experience very frightening. However, it is reasonably arguable that the sentence and order for cumulation in respect of charge 3 are manifestly excessive in the light of the following:
(a) as the proposed armed robbery of the Taylors Lakes Hotel did not take place, unlike the offences committed at the Meadow Inn Hotel, no patrons or staff were adversely affected and no money was taken;
(b) the armed robbery of the Meadow Inn Hotel took place a matter of minutes after the applicant and [Nathan] found the Taylors Lakes Hotel closed and they decided to substitute the former hotel for the latter hotel; and
(c) in some circumstances, it is open to a court to impose a sentence for a conspiracy to commit a particular offence that is less severe than a sentence for commission of that offence.[16]
[16]Leave reasons [11].
Having regard to his concerns with respect to the conspiracy offence, and the potential need for re-sentencing, Kyrou JA determined that leave to appeal should be granted with respect to ground 1 as a whole.
With respect to ground 2, he said:
The applicant also contended that although it may be implicit from the judge’s sentencing remarks that he did not have much confidence in the applicant’s prospects of rehabilitation, in circumstances where Ms Lechner’s report provided positive evidence on the issue of rehabilitation, it was incumbent on the judge to refer to that report and make express findings on that issue.
In my opinion, the applicant’s contentions in support of Ground 2 are reasonably arguable. ...[17]
[17]Ibid [13]–[14] (citation omitted).
Ground 1 - manifest excess
During the course of the hearing of the appeal, the focus of Younan’s submissions in support of the ground of manifest excess related to the judge’s approach to the sentence on the conspiracy charge (charge 3). Younan submits that, given that the planned armed robbery at the Taylor’s Lakes Hotel did not proceed and instead was replaced minutes later by the second substantive armed robbery offence at the Meadow Inn Hotel events (charge 4), the sentence on the conspiracy charge (charge 3) should have been demonstrably less than that imposed for each of the substantive armed robbery offences (charges 2 and 4). Furthermore, the cumulation in respect of the conspiracy offence ought to have been less than the cumulation in respect of the second Meadow Inn Hotel armed robbery. This was argued to be the approach taken by this Court in R v Bortoli[18] and R v Stevens.[19]
[18][2006] VSCA 62 (‘Bortoli’).
[19][2009] VSCA 81 (‘Stevens’).
In Bortoli the offender pleaded guilty to multiple charges, including two charges of armed robbery and two charges of conspiracy to commit armed robbery, one at the Eltham Hotel and one at the Lower Plenty Hotel. On 30 April 2001, at the Eltham Hotel, Bortoli, his co-accused and another man confronted staff with a firearm and a machete when the staff arrived for work. The staff were threatened, two of them were bound by their feet and wrists and their mouths were taped. A third member of staff was seized and taken to the strong room and opened the safe. Money was taken from the safe and from a number of machines in the gaming room. A total of $24,530 was stolen.
On 17 May 2001, at the Lower Plenty Hotel Bortoli and a co-accused, with the assistance of a security guard who was an accomplice, gained access to an area where staff were counting cash while under the protection of security guards. Bortoli was armed with a cut-down single barrel shotgun and a black pistol with what appeared to be a silencer. Money was taken from a safe and cash drawers. Some $89,825 was stolen.
The conspiracy offences related to an agreement to commit an armed robbery at the Sands Hotel, Carrum Downs, between the dates of 13 June and 20 August 2001, and an agreement to commit armed robbery at the Ferntree Gully Hotel between 22 July and 20 August 2001. With respect to the Sands Hotel, electronic surveillance revealed conversations that showed that Bortoli had made a number of trips to the premises to view its operations and that there were discussions about the details of the operating hours of the gaming room and bistro. Bortoli had said that all that was needed for the armed robbery to take place was the money needed to acquire the weapons. With respect to the Ferntree Gully Hotel, Bortoli with a co-accused attended at the hotel on a number of occasions to view its operating procedures. Electronic surveillance revealed the manner in which Bortoli sought to control a co-conspirator, an employee of the hotel, and his intention to pursue the armed robbery once the necessary weapons were acquired.
Bortoli was sentenced to five years’ imprisonment for each of the charges of armed robbery, the sentence with respect to the Eltham Hotel being treated as the base offence and cumulation of six months’ ordered in respect of the Lower Plenty Hotel offence.[20] He was sentenced to two years’ imprisonment on the two charges of conspiracy to commit armed robbery with cumulation of three months and six months respectively.
[20]Bortoli pleaded guilty, showed a willingness to co-operate with police and gave an undertaking to give evidence against a co-offender which would expose him to the risks associated with the service of a jail term by an informer and the hardship of serving a sentence in protection.
In rejecting a ground of manifest excess in Bortoli, Redlich JA emphasised that armed robbery is an especially serious offence because of the impact of threatened violence upon victims and because the use of weapons carries the risk of serious injury or death:
Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. An armed robbery involving the use of loaded firearms at secured premises, with a likely presence of security guards, increases the risk of serious injury or death in the course of the commission of the offence. The armed robberies committed by the appellant fell into this category. These are, as this Court observed in R v Williscroft, offences of such gravity that they call for a ‘condign sentence’. The high maximum sentence for such an offence has been viewed as indicating that deterrence is a matter that should be given priority. Armed robberies which are carefully and professionally planned and executed must be viewed as more deserving of exemplary punishment.[21]
[21]Bortoli [2006] VSCA 62 [23] (citations omitted).
Younan submits that while the judge’s comments here about the frightening nature of the armed robberies,[22] echoing the sentiments of Redlich JA in Bortoli, are appropriately directed towards the armed robberies the subject of charges 2 and 4, they cannot be sustained in relation to an armed robbery that was planned but did not take place.
[22]See [10] above.
Younan submits that a conspiracy to commit an armed robbery that does not lead to the commission of the substantive offence cannot attract the same sentence as an armed robbery that is carried out, and particularly so where the planned armed robbery is substituted by a different plan minutes later that is actually carried out. He argues that the sentence imposed on the conspiracy offence should have been demonstrably less than that imposed with respect to the two charges for the substantive offence, and that there should have been substantial concurrency between charges 3 and 4. He points to the relative sentences imposed in Bortoli as reflecting a more appropriate disposition.
Younan supports his submission by relying also on Stevens where the appellant was sentenced to five years’ imprisonment on a charge of armed robbery and two years’ imprisonment with respect to a charge of conspiring to commit armed robbery, with 12 months’ to be served concurrently with the sentence on the substantive offence. The conspiracy charge related to an agreement to perform an armed robbery at a post office in Doveton where Stevens and others planned to engage in offending of the same type as they had engaged in by the commission of an armed robbery at a post office at Chelsea Heights, over a month earlier. Younan submits that the relativities adopted in Stevens, where the sentence for the conspiracy offence was demonstrably less than that imposed for the armed robbery offence, ought to have been adopted here.
In response, the Crown relies on the principle that conspiracy to commit an offence is separate from the substantive offence and is to be sentenced separately. The Crown points to the same maximum penalty being applicable for both the conspiracy offence and the offence of armed robbery. It rejects the proposition asserted by Younan that a conspiracy to commit an armed robbery cannot attract the same sentence as an armed robbery that is carried out. It relies upon a decision of this Court, DPP v Fabriczy,[23] where Maxwell P, Neave and Redlich JJA concluded that the sentencing judge had misdirected himself by holding that, as a general rule, the sentence imposed for an offence of conspiracy to commit an offence should be less than the sentence which would have been imposed had the planned offence been committed. The Court observed:
There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. The conspiracy offence is directed at a different mischief — the making of an agreement to act unlawfully — and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly. The court must take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.[24]
[23](2010) 30 VR 632 (‘Fabriczy’).
[24]Ibid 633 [2] (citations omitted).
The observation made in Fabriczy must be accepted. There is no doubt that the conspiracy offence is directed at a different mischief, the making of the agreement to act unlawfully by engaging in an armed robbery, from the mischief involved in the execution of an armed robbery. Nevertheless, in our view, it is necessary here to be attentive to the particular circumstances of the case. The overt acts relied upon as comprising the conspiracy[25] included Younan and Nathan driving to Lentine Street, Taylors Lakes, parking, removing from the boot of the car the bag containing the sawn-off shotgun, the Gurkha knife, and clothes for the purpose of disguise, cutting black material to fashion two balaclavas, and removing their socks to be used as gloves. The overt acts also included the intercepted discussions between Younan and Nathan about the respective roles they would play in the proposed armed robbery and the driving to the Taylor Lakes Hotel including performing a lap of the premises before departing. In the circumstances, much of the criminal culpability associated with these overt acts is absorbed by the commission of the armed robbery of the Meadow Inn Hotel 15 minutes after departing from the premises of the Taylor Lakes Hotel. The overlap of overt acts relied upon for the conspiracy offence and for the armed robbery at the Meadow Inn Hotel on 1 August 2014 includes: (1) the driving of the same car, (2) the use of the clothing for disguise, (3) the black balaclavas, (4) the wearing of socks over their hands, (5) the carrying of the sawn-off shotgun, and (6) the use of the Gurkha knife. There were differences between what was planned and what was carried out, most notably the venue which was targeted and, to some degree, the roles Younan and Nathan were to perform. At the Meadow Inn Hotel Nathan did not remain in the car but actively participated by running into the gaming area and taking money.[26] However, Younan’s role remained the same, with him taking the lead and pointing the gun at the security guard and at staff. This reflected the agreement previously reached.
[25]See [5] above.
[26]See [7] above.
In those circumstances, in our view, the judge was in error in imposing the same sentence for the conspiracy offence as that for the carrying out of the armed robbery when the armed robbery took place so quickly after departure from the original target and incorporated so many of the steps already taken in furtherance of the conspiracy. The circumstances reveal that the unlawful acts planned were not so much aborted as redirected. In substance, the armed robbery that took place gave effect to a variation of the original agreement. By imposing an identical sentence for the conspiracy as for the subsequent armed robbery, the judge was at risk of doubly punishing Younan for many of the acts incorporated in the original agreement and its subsequent variation.[27] Much of the degree of criminality involved in the original agreement was subsumed by the degree of criminality involved in the subsequent armed robbery. This is apparent when considering the degree of criminality involved in charge 2, the earlier first armed robbery committed on the Meadow Inn Hotel on 26 July 2014, where all of the culpability associated with the planning, the agreement on roles, the preparation of disguises, the selection of weapons, and so on, is absorbed by the substantive offence for which Younan was appropriately sentenced.
[27]See Dang v The Queen (2014) 43 VR 29.
By reason of this specific error, the sentencing discretion is re-opened and it will be necessary to sentence Younan afresh for the conspiracy offence (charge 3).
In our view, there is no basis for concluding that the individual sentences on the other charges were manifestly excessive; they do not meet the test of being ‘“wholly outside the range of sentencing options available” to the sentencing judge’.[28] We should make plain our view that the individual sentences imposed on the armed robberies were lenient.
[28]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
Ground 2 – error in assessment of prospects of rehabilitation
During the course of the plea, on 27 May 2016, it was submitted that Younan had demonstrated remorse and had commenced working towards his rehabilitation while on remand, having demonstrated a desire and willingness to participate in programs. These included the programs recognised by the judge relating to drug rehabilitation and harm reduction, occupational health and safety and food-handling.[29] It was submitted that despite the seriousness of the offending, and despite his prior criminal history, Younan was not beyond being rehabilitated and that his rehabilitation could be encouraged and developed through the imposition of a combined sentence of imprisonment and a CCO.
[29]See [17] above.
As mentioned, the judge ordered, somewhat reluctantly,[30] that a full pre-sentence assessment be made and he adjourned the further hearing and sentence until the pre-sentence report was available. Upon the matter returning on 25 July 2016, the judge expressed frustration with the pre-sentence report. In an exchange with counsel, he said:
I will hear submissions in respect to the report concerning the community corrections order. I can tell you from the outset I find it a singularly unimpressive document. It is a pro forma document, on its face.
I adjourned this matter so that a proper document could be prepared. It is entirely inadequate for its purposes; however, there is something in it which is disadvantageous to your client [referring to counsel for Younan] and that is his high level of risk of reoffending.
[30]See [18] above.
As noted, the judge considered that the pre-sentence report lacked insight and had the characteristic of being formulaic rather than properly assessing the unique issues facing Younan for the purpose of appropriateness of a CCO.[31] Younan submits that, in those circumstances, it is difficult to reconcile the judge’s willingness to act on the assessment in the pre-sentence report that Younan has a high risk of reoffending in the context of a document that the judge treats as deficient for failing to grapple with the individual circumstances of Younan’s life and character.
[31]See [18] above.
Furthermore, Younan submits that the judge erred in accepting the assessment that Younan has a high risk of reoffending when the only evidence in support of that proposition was the pre-sentence report and this was in direct conflict with other evidence before the Court, especially when the ultimate recommendation of the pre-sentence report was that Younan was suitable for a CCO.
Moreover, Younan submits that although the judge never expressly addressed the issue of the prospects of Younan’s rehabilitation, it is implicit in his acceptance that Younan has a high risk of reoffending that the judge assessed Younan as having no prospects of rehabilitation. The judge ought to have expressly grappled with the issue of rehabilitation because he specifically raised the issue of reoffending. In those circumstances, Younan submits, it can be inferred from the judge’s failure to mention the general prospects of Younan’s rehabilitation that the issue was overlooked.
The Crown submits that during the plea defence counsel acknowledged the difficulty faced by the judge in evaluating Younan’s prospects for rehabilitation because Younan has a limited ability to understand and address the causes of his offending, given his intellectual and cognitive deficits, and an inability to develop a more mature approach to life. Moreover, the Crown argues, it was open to the judge to accept the assessment of the pre-sentence report that there was a high risk of Younan committing further offences, given Younan’s extensive criminal history. That history demonstrated that despite dispositions in the Children’s Court aimed at addressing his intellectual disability, and despite subsequent sentences, including an Intensive Correction Order and actual imprisonment in an adult prison, he continued to regularly offend. Younan’s history of drug abuse was also of concern.
In our view, this ground of appeal is without merit.
It is apparent from the Reasons that the judge relied upon the assessment in the pre-sentence report that Younan had a high risk of reoffending for the limited purpose of concluding that Younan was unsuitable for a CCO.[32] That conclusion is not under challenge. Indeed, the issue of Younan’s suitability for a community-based disposition was the very reason for the commissioning of the report. The defects in the pre-sentence report, particularly its failure to address the individual circumstances of Younan’s life and his limited insight, understandably led to the judge’s rejection of its recommendation that Younan was suitable for the imposition of a CCO.
[32]See [18] above.
While the judge did not expressly address Younan’s prospects of rehabilitation, it is clear that his implicit negative assessment of those prospects was founded on the evidence before him.
In particular, the judge clearly took account of the terrifying and potentially violent nature of the armed robberies when he described Younan, during the plea, as ‘a walking, talking, dangerous disaster area, walking into licensed premises doing ... armed robberies with a firearm’. Indeed, on the adjourned plea in July 2016, the judge, when noting the risk assessment in the pre-sentence report, observed that ‘the risk assessment that has been made [is] hardly surprising in the circumstances bearing in mind his antecedents’.
The judge noted that the armed robberies were carried out when Younan was affected by ice and the reports of Ms Lechner pointed to Younan’s immaturity, impulsiveness, lack of insight and long-term ice addiction. All of these matters supported a realistic acceptance of Younan’s high risk of reoffending upon which a doubtful assessment of Younan’s prospects of rehabilitation could be based, independently of the pre-sentence report.
Furthermore, the first report from Ms Lechner made a clear link between Younan’s cognitive, social and emotional immaturity, and his ‘limited ability to reflect on the impact that his behaviour has on both himself and others’. She went on to observe:
This appears to relate to his genuine cognitive deficits rather than a disregard for the feelings of others. He presents as impulsive in nature with a low tolerance for frustration. Mr Younan is able to identify some triggers to his negative feelings but admits that he is poorly equipped to manage his internal distress.
...
He is ... inclined to interpret the world around him in a subjective manner and to have difficulty taking perspectives other than his own.
The second report of Ms Lechner described Younan as being abstinent from drug use in prison, contributing to an improvement in his mental state and an ability to manage his angry impulses. She described Younan as having undertaken a number of courses, being ‘keen to prove himself in the community upon his eventual release’. However, she repeated her observation about Younan’s immaturity, limited insight, and difficulty in understanding the impact of his behaviour on others. She said:
Mr Younan continues to impress as cognitively, socially and emotionally immature with a limited ability to reflect on the impact that his behaviour has on both himself and others although this improves with prompting. This appears to relate to his genuine cognitive deficits rather than a disregard for the feelings of others. He presents as impulsive in nature with a low tolerance for frustration. Mr Younan is able to identify some triggers to his negative feelings but admits that he is poorly equipped to manage his internal distress. ...
He is ... inclined to interpret the world around him in a subjective manner and to have difficulty taking perspectives other than his own.
She noted that Younan believed that the best way in which he can stay out of trouble is to live with his parents, go to work, not touch drugs at all, have positive thinking, stay away from drug users and do counselling. Ms Lechner noted that Younan would benefit from drug counselling that would assist him ‘with recognising triggers to drug use and relapse prevention strategies as well as developing more adaptive mood management skills’. However, she also noted that ‘[o]n account of his limited cognitive skills he still finds it hard to minimise the risk of relapse’. In her opinion, his previous drug abuse has compromised the limited cognitive ability he has:
His judgment, reasoning and decision-making skills have, in the past, been compromised by drug abuse. It is well documented that Ice adversely affects executive brain functioning and these skills are already poorly developed in [Younan]. Whilst Mr Younan is able to identify some triggers to his negative feelings he is less well able to manage them in an adaptive manner, tending to block out internal distress ... with increased drug abuse.
Specifically with respect to Younan’s prospects of rehabilitation, Ms Lechner concluded very cautiously:
Mr Younan’s Ice addiction was a significant contributing factor to his offending in terms of undermining his judgment and decision-making. He has worked hard on his rehabilitation whilst in custody and will need considerable support and supervision in the community with vocational options and engagement with treatment. On account of his cognitive immaturity, his plans lack sophistication and he needs assistance in developing skills that will minimise the risk of relapse to drug use.
In our view, this provides an adequate evidentiary foundation for the judge to conclude that there is a high risk of Younan reoffending, independently of the pre-sentence report. The evidence consists of the links drawn by Ms Lechner between Younan’s drug use and his criminal behaviour, the risk of relapse into drug use, his limited cognitive capacity, emotional immaturity, impulsive nature, low tolerance for frustration, limited insight and poor capacity to understand the impact of his behaviour on others, assessed in the light of Younan’s extensive criminal history. We consider that the judge made no error in assessing Younan’s prospects of rehabilitation.
We reject ground 2.
Conclusion on the appeal
We would allow the appeal. The orders of the judge should be set aside and in their place we would re-sentence Younan as follows:
· On charge 1, twelve (12) month’s imprisonment,
· On charge 2, three (3) years’ imprisonment,
· On charge 3, eighteen (18) months’ imprisonment,
· On charge 4, three (3) years’ imprisonment (Base), and
· On charge 5, twelve (12) months’ imprisonment.
We order that four months of the sentences imposed on charge 1, eighteen months of the sentence imposed on charge 2, three months of the sentence imposed on charge 3, and four months of the sentence imposed on charge 5 be served cumulatively upon each other and upon the sentence imposed upon charge 4.
This results in a total effective sentence of five years and five months’ imprisonment.
We direct that the minimum term to be served before the appellant is eligible for parole is three years and six months’ imprisonment.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the plea of guilty, we would have imposed a sentence of seven years and nine months with a non-parole period of five years.[33]
[33]It will also be necessary to confirm various incidental orders, including forfeiture orders.
CROUCHER AJA:
I have had the advantage of reading in draft the joint reasons for judgment of Redlich and Tate JJA.
I agree, for the reasons their Honours give, that ground 1 must succeed in respect of the conspiracy sentence and the related order for cumulation but that it must fail in respect of the other sentences, and that ground 2 must be rejected as well. I also agree that, in consequence of the partial success on ground 1, the appeal must be allowed and the appellant should be re-sentenced in the manner proposed by their Honours. I wish to add only the following.
As Redlich and Tate JJ observe, much of the appellant’s criminality in the conspiracy with the co-offender to commit an armed robbery at the Taylors Lakes Hotel was subsumed by his criminality in the armed robbery committed a short while later with the co-offender at the Meadow Inn Hotel. That, and the other considerations raised by their Honours, are among the reasons why the sentence on the conspiracy offence is manifestly excessive and should have been substantially less punitive than the sentences imposed on the substantive offences of armed robbery.
An additional reason, however, is that it cannot be ignored that, whereas the
substantive offences in this case involved direct victims who suffered fear and loss, the conspiracy did not involve any such victims, albeit that the illegal behaviour planned necessarily involved a preparedness to instil such fear in and inflict loss on others. Thus, while the moral culpability involved in the conspiracy and the substantive offences may be similar, the harm caused was not. In my view, the absence of harm of that type must be reflected in the sentence for the conspiracy offence and in the relativity between that sentence and the sentences for the substantive offences, the latter of which involved agreements to commit and the actual commission of acts similar in seriousness to that which would have occurred had the unlawful behaviour the subject of the conspiracy actually occurred.
In resisting this aspect of ground 1, Mr Kissane QC, who appeared for the Director on the appeal, relied on this Court’s reasoning in Fabriczy. In particular, counsel emphasized the statements of principle extracted in the reasons of Redlich and Tate JJA, including the view that ‘[t]here is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted’.[34] Mr Kissane also relied on the fact that both the conspiracy and the substantive offences carry the same maximum penalty as a reason justifying identical sentences.
[34](2010) 30 VR 632, 633 [2].
In my opinion, nothing said in Fabriczy should be taken as denying the proposition that, in a particular case, a conspiracy to commit an offence might be a less serious offence deserving of a lesser penalty than a substantive offence preceded by an agreement to commit it, when the agreement founding or preceding each offence, as the case may be, is as to the commission of similar behaviour but that, in the case of the substantive offence, the carrying out of the agreement involved causing loss and harm whereas, in the case of the conspiracy at hand,[35] no such loss or harm was caused. Indeed, that their Honours did not intend to deny such reasoning is apparent in their rejection of the respondent’s submission that the sentencing judge’s observations ‘meant only that, in the particular circumstances of the case, the offence was less serious than if the robbery had been committed’.[36]
[35]I say the conspiracy ‘at hand’, because, in some cases, albeit rarely, conspiracy may be charged even though the acts amounting to the substantive offence have been committed.
[36]Fabriczy (2010) 30 VR 632, 636 [12].
To reason in such a fashion is to do no more or less than is required by the Sentencing Act 1991. For example, s 5(2), in paragraphs (c), (daa) and (db), requires that, in sentencing an offender, a court must have regard to ‘the nature and gravity of the offence’, ‘the impact of the offence on any victim of the offence’ and ‘any injury, loss or damage resulting directly from the offence’. Plainly, the nature and gravity of an offence may be informed, at least in part, by the presence or absence of harm or loss to victims as a result of the offence.
As I read Fabriczy, the Court was concerned to declare as incorrect an approach to sentencing that proceeds on the footing that ‘conspiring to commit an offence was necessarily less serious than if an “actual crime” had been committed’.[37] As their Honours explained, however, on a proper analysis,
[t]he element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so.[38]
[37]Ibid.
[38]Ibid 637 [16].
It was also noted that ‘[t]here is said to be a “dangerousness” inherent in the plotting, “either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group”’.[39] It was also pointed out that, in exceptional cases, the element of concert may justify a more severe penalty than for the substantive offence.[40] These and other considerations, said their Honours, showed that the judge was wrong to direct himself as he did.[41]
[39]Ibid 637–638 [16].
[40]Ibid 639 [21], citing R v Hoar (1981) 148 CLR 32, 38; and Savvas v The Queen (1995) 183 CLR 1, 6.
[41]Fabriczy (2010) 30 VR 632, 639 [23].
But, in the present case, the comparison that Mr Farrington, for the appellant, makes is not between an individual acting alone to commit a substantive offence and a conspiracy, amongst two or more, to commit the same offence. Nor does he submit that conspiring to commit an offence is, in all cases, necessarily less serious than if an ‘actual crime’ had been committed. Instead, the comparison he makes is between the sentence for an offence of conspiracy, hatched by the appellant and another, to commit an armed robbery and a substantive offence of armed robbery of a similar nature to that which was the object of the original conspiracy, committed by the same two individuals only a short time after that conspiracy could not be carried out, and which was preceded by an agreement of a similar nature. In other words, counsel relies on, among other things, that both offences involved agreements of a similar type but one resulted in harm and the other did not. For the reasons I have given, he was right to do so.
Further, while it is a relevant consideration that both the conspiracy and the substantive offence carry the same maximum penalty, that does not mean that the offences must result in the same sentence, even though each involved a plan to commit an offence involving a similar level of fear and loss. The maximum penalty is merely one factor among many to which a court must have regard in sentencing an offender.[42]
[42]See s 5(2)(a) of the Sentencing Act1991 .
As I indicated earlier, I also agree with Redlich and Tate JJA that none of the other individual sentences or orders for cumulation, the total effective sentence or the non-parole period is manifestly excessive. Indeed, the judge would have been justified in imposing longer individual sentences on the two armed robberies, but, had he done so, I think the principle of totality would have demanded a lesser degree of cumulation.
As for the proposed re-sentencing, I agree that, in the particular circumstances of this case, including the close relationship between the conspiracy and the subsequent substantive offence of armed robbery, that a sentence of 18 months’ imprisonment is appropriate, as is an order for three months’ cumulation. But for the close relationship between the two offences, a heavier sentence and a greater level of cumulation would have been necessary.
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