Zorbas v The Queen
[2004] WASCA 27
•5 MARCH 2004
ZORBAS -v- THE QUEEN [2004] WASCA 27
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 27 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:48/2003 | 2 DECEMBER 2003 | |
| Coram: | WHEELER J MCLURE J WALLWORK AJ | 5/03/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted, Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | PETER STEVEN ZORBAS THE QUEEN |
Catchwords: | Sentencing Remorse Armed robbery Turns on own facts |
Legislation: | Nil |
Case References: | Paparone v The Queen [2000] WASCA 127 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ZORBAS -v- THE QUEEN [2004] WASCA 27 CORAM : WHEELER J
- MCLURE J
WALLWORK AJ
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File Number : INS 116 of 2002
Catchwords:
Sentencing - Remorse - Armed robbery - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr K P Bates & Ms K E Ellson
Solicitors:
Applicant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Paparone v The Queen [2000] WASCA 127
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: The applicant applies for leave to appeal against sentence in respect of two matters. In February last year he stood trial on an indictment alleging one count of attempted armed robbery in company and one of armed robbery in company. In respect of the attempted armed robbery in company, he entered a plea of not guilty, but was convicted by the jury of attempted armed robbery with the aggravating circumstance of being armed with an offensive weapon. By its verdict, the jury acquitted him of being in company on that occasion. In respect of the second count, he entered a plea of guilty to armed robbery and to the aggravating circumstance of being armed with an offensive weapon (namely a knife), but denied the aggravating circumstance of being in company. By its verdict, the jury found that he had committed that offence and had on that occasion been in company. He received a sentence of 5 years imprisonment in respect of the first count and 8 years in respect of the second, to be served concurrently with eligibility for parole.
2 Circumstances of the offences were briefly as follows. On the evening of 5 October 2001 the applicant and his co-offender had been with three other friends to a house in Swanbourne where three further friends were living. It was initially a social call. There was evidence of the consumption of alcohol and marijuana, although precisely how much of each substance was consumed and by whom, was not entirely clear. During the course of the evening one of the young men in the house produced his wallet and it appeared that there was a substantial amount of cash in that wallet. The importance of that incident was that shortly afterwards the applicant, his co-offender and a third person went outside to the car in which they had arrived and there was discussion about the fact that the person with the wallet allegedly owed a debt to the applicant and had previously failed to pay it, giving the explanation that he lacked money. The applicant became angry that he had, as he thought, been lied to. He went to the glove box of the car and collected a butterfly knife, indicating that he intended to go back into the house and recover the money from the person who was said to owe it to him.
3 There was then some conversation between the three in which the others attempted to discourage the applicant from the course which he proposed but were unsuccessful. He went into the house carrying the knife in a "semi-concealed" way. The applicant and his co-offender went into the kitchen and found one of the other young men there. The evidence was that the applicant had put the knife to the throat of this young man and demanded money. It was said that the blade, which was a retractable blade, was not fully exposed at this time. That constituted the first count. In the midst of that episode, the young man who was alleged
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- to owe the money came into the kitchen because of the shouting and screaming that was going on. The applicant left the first young man and came at the alleged debtor, threatening him with the knife which he held to the young man's throat. The applicant forced him against the wall and then into an adjoining bedroom, demanding that he hand over the money. The young man reached into his pocket and gave the wallet to the applicant, who threw it to his co-offender who was waiting nearby. The co-offender took the money out of the wallet, threw it on the floor, and the two then left.
4 It is apparent from that brief statement of facts that the offences were serious ones of their kind, the circumstance of the knife being held to the throat of each of the young men being a particularly serious factor. As against that, there was no element of planning or lengthy pre-meditation, although there was apparently a persistence in the proposed course of action in the face of an attempt by two friends to dissuade the applicant.
5 The grounds of appeal in respect of each sentence are that each is manifestly excessive in all the circumstances. Particulars of that allegation in respect of each offence are: the age of the applicant at the time of the offence; the fact he suffered from ADHD; the impulsive nature of the offence; the effect of cannabis and alcohol on him; and the remorse exhibited by him. In respect of the second count, reference is also made to considerations of parity in respect of the sentence imposed on the co-offender. That last matter can, in my view, be shortly dealt with. It is plain that the co-offender played a much lesser role in the offence, and had indeed attempted to dissuade the applicant from the offence. Further, the co-offender was only just over 18 years of age when the offence was committed and had a better record than that of the applicant. In those circumstances considerations of parity do not appear to arise.
6 Looking to the mitigating factors, the applicant was 20 at the time of the offence and was 22 at the time at which he came to be sentenced. There was evidence that he suffered from ADHD, and that circumstance could be considered to be mitigatory, when regard is had to the nature of that condition and to the impulsive nature of the offending, which tends to suggest a cause or link between the two; see Paparone v The Queen [2000] WASCA 127 at [49] – [51] per Murray J. The effects of cannabis and alcohol would not appear to be of particular mitigatory significance, save that they might again also to explain why the applicant was at that time disposed to react in such a disproportionate way to the discovery that, as he thought, he had been lied to.
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7 The applicant's early life was unsettled and unstable as a result of a number of matters, particularly disputes between his parents, who had separated, about his custody. He began using cannabis at 13, and heroin and amphetamines at 15. No doubt partly as a result of that drug use, he commenced offending when he was 14 and his record, which is a reasonably significant one for a young man, contains mainly burglary convictions. In addition, he left high school at the age of 15 years, after a history of some truanting and difficulty at school prior to that.
8 For some years he had lived with his father in Queensland. He had worked for his father and was said to be a satisfactory worker. However, his mother had often asked him to return to WA to assist her in her difficulties with his younger brother. Partly as a result of those requests, and partly as a result of an argument with his father, he did return to WA.
9 It appeared that he had not offended while in Queensland. However, it appears that away from the stability of the employment and from his relationship with his father in Queensland he again commenced use of amphetamines and recommenced offending. As a result of that offending, he had been sentenced previously to aggregate terms commencing on 16 August 2000, in respect of which he had, at the time of these offences, been released on work release. That work release order was dated 16 August 2001 and it was to expire on 15 December 2001. Between the time of his release and the time of these offences, a time of approximately six weeks, he had been maintaining contact with his supervising officer and performing community work. Urine analysis had indicated that he was not using amphetamines, although he was using cannabis and benzodiazepines. As a result of his being charged with these offences, the work release order was suspended and he was returned to custody. It appears that his parole was cancelled so that a direct result of these offences, was to expose him to liability to serve approximately a further 12 or 13 months in respect of the earlier offences.
10 His Honour the learned sentencing Judge, correctly, in my respectful opinion, took the view that because the time spent in custody as a result of the cancellation of the work release order and the parole was in respect of the earlier offences, and not in respect of the offence for which he was then being sentenced, his Honour was unable to take that time into account pursuant to s 87 of the Sentencing Act either by reducing the term imposed or by backdating the sentence. However, it remains the fact that as a direct result of the offences for which his Honour was sentencing the applicant, he had been exposed to the requirement that he serve additional
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- periods in respect of his earlier offences, and that was a factor to be taken into account, in a general way, in mitigation.
11 It appears from the pre-sentence report and from the psychological report which were prepared for his Honour that there were indications that the applicant had been, during his most recent period of imprisonment, coming to a realisation about the inappropriateness of his offending behaviour, and had developed a desire to submit to any treatment which might assist him in acting in a less impulsive and anti-social manner. The clinical psychologist's report suggested that progress in that respect would not be easy and that relapses could be triggered in a number of ways.
12 In summary then, the applicant was a relatively young man, but with a history of offending behaviour which meant that any mitigation by reason only of his youth would not be particularly significant. However, there was also evidence that he had been behaving in an impulsive and immature manner, partly as a result of the condition of ADHD for which he had sought treatment, and there were indications of greater maturity in the recent past. In addition, there was the very important indication of remorse demonstrated by his willingness to plead guilty to the offence of armed robbery, although disputing one of the circumstances of aggravation which the jury found to exist. In relation to the attempt, it should also be noted that it appears from the psychological report that the applicant did not dispute that he had committed an offence in relation to the first young man, but considered it to be an offence of assault rather than an attempt to obtain money from him. Although the fact that the applicant had committed these offences shortly after his release in respect of other offences and while on work release would be considered aggravating, it might also be expected that the cancellation of that work release and the requirement to serve the remainder of the term imposed in respect of the earlier sentences had been a factor in bringing home to the applicant the consequences of continuing to offend and of failing to take advantage of those opportunities for rehabilitation afforded to him.
13 This application is not an easy one. The sentences imposed by the learned sentencing Judge were not excessive when regard is had to the seriousness of the offences, to the applicant's age and the applicant's record, even when regard is had to the applicant's troubled background. However, as the Crown acknowledges, the sentences are "on the high side" for a person situated as the applicant is, even having regard to the seriousness of the offending.
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14 It appears however that his Honour may have failed to take into account the applicant's remorse, demonstrated by the plea of guilty to the majority of the elements of the second count and his acknowledgement of some offending in relation to the first count. While there was no plea of guilty to the precise offences found by the jury, nevertheless the expression of remorse and willingness to facilitate the course of justice was still present to a significant degree, and those factors should receive a reduction in sentence. Further, those matters reinforce in a very practical way the views expressed by the pre-sentence and psychological reports to the effect that the applicant was now, more than in the past, prepared to acknowledge his offending and to seek to be rehabilitated.
15 Looking to his Honour's sentencing remarks, it is to be noted that, although his Honour referred to the plea of guilty, he did so very early in his sentencing remarks, at the time which he was outlining what it was that each of the offenders had been convicted of. There was no further reference to the plea and any possible consequences of it by way of mitigation, when his Honour dealt with matters personal to the applicant. Additionally, his Honour's remark that "It does seem that there has been some adjustment and improvement while in prison but no substantial change in your circumstances" appears to me to underestimate the apparent insight and willingness to attempt rehabilitation which is to be gleaned from reading those reports in combination with the plea which the applicant was prepared to offer.
16 A combination of reading of his Honour's sentencing remarks, together with the very substantial term which he imposed, leads me to the view that his Honour erred in failing to place either any weight, or sufficient weight, upon the applicant's remorse as demonstrated by the plea of guilty which he made, and also leads me to the conclusion that his Honour erred in giving insufficient weight to those indications of reform which appeared to exist. Although the indications of reform were, it may be conceded, relatively slight, nevertheless having regard to the applicant's relative youth, to his early unsettled background, and to the fact that he had demonstrated, while with his father, an ability to refrain from offending for a time, they were indications which required some reduction in sentence.
17 For the reasons which I have given, it is my view that the applicant has demonstrated that his Honour did not place sufficient weight upon the mitigatory factors of the age of the applicant, his suffering from ADHD, the impulsive nature of the offence, and the remorse which he exhibited, and in doing so was led into error in imposing a sentence which was
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- excessive having regard to those factors. I would therefore in each case grant leave to appeal, allow the appeal, and quash the sentences imposed. In lieu, thereof, I would have imposed a term of 4 years imprisonment for the attempted armed robbery and 6 years in respect of the armed robbery in company. By reason of the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) I would, coming to sentence the applicant at the present time, therefore reduce those sentences by a further one-third, so that the sentences would be 2 years and 8 months in respect of the attempted armed robbery and 4 years in respect of the armed robbery in company, to be served concurrently, to commence, as his Honour had ordered, from 24 January 2003.
18 MCLURE J: I have had the advantage of reading in draft the reasons for decision published by Wheeler J. I agree with them and have nothing to add.
19 WALLWORK AJ: I agree with the reasons for judgment and the conclusions of Wheeler J.
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