SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0214

DAMON FRASER	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGE:	NIALL JA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	Determined on the papers	
DATE OF JUDGMENT:	11 March 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 52	
JUDGMENT APPEALED FROM:	DPP v Fraser (Unreported, County Court of Victoria, Judge Lacava, 13 August 2020)	

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Applicant pleaded guilty to four armed robberies and five attempted armed robberies – 18 years of age – Various mitigating factors – Sentenced to two years’ detention in Youth Justice Centre – Whether sentence manifestly excessive – Serious offending – Judge gave careful consideration to mitigation factors – Leave refused.

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APPEARANCES:	Counsel	Solicitors	
			
No appearances.			

NIALL JA:
1	On 31 January and 1 February 2020, when the applicant was 18 years old, he committed four armed robberies and attempted a further five armed robberies on shops using a knife.  Each of the crimes was committed together with his older sister, Erin Fraser (‘Fraser’), who was then 20 years of age.  With two exceptions, the applicant entered the store alone, brandished a knife, and either robbed or attempted to rob the store.  The exceptions were the first armed robbery, on 31 January 2020, in which Fraser entered the store to complete the robbery, and the final attempted armed robbery, on 1 February 2021, in which the applicant and Fraser entered the store together.
2	Each of the offences used the same, unsophisticated method.  The applicant and his sister drove to the stores in an Audi motor vehicle which had been stolen by Fraser.  With the exception of charge 7, the applicant entered each shop with his face partially concealed by clothing, holding a knife either towards or visible to the victim and demanded money.  With the exception of charge 15, while this was going on, Fraser waited outside in the stolen vehicle.
3	Each of the completed armed robberies netted a relatively modest amount of money.  In respect of the attempted armed robberies, the applicant entered the shop, brandished a knife and demanded money but left the store empty-handed.
4	At the time he committed the offences, the applicant was young and had no criminal history.  He was genuinely remorseful, cooperated with the authorities, pleaded guilty at the earliest opportunity, complied with his bail conditions and, as the judge found, had very good prospects of rehabilitation.  In addition, by reason of a number of matters, the applicant is likely to be vulnerable in any custodial setting.
5	The judge took into account all of those matters and concluded that the offending was far too serious for the imposition of a community corrections order (‘CCO’), which had been sought, and imposed a sentence of two years’ imprisonment to be served in a Youth Justice Centre.  The applicant seeks leave to appeal that sentence on the single ground that the sentence is manifestly excessive in light of a range of factors.
6	In my opinion, the sentence was well within the range of sentencing options open to the judge in the sound exercise of his discretion.  The proposed ground of appeal is not arguable and I would refuse the application for leave to appeal.  My reasons follow.
Charge 7 – Armed robbery
7	On Friday 31 January 2020, at approximately 10:40 am, Fraser drove the stolen Audi to a milk bar in Coleman Road, Boronia.  The applicant entered the milk bar and spoke briefly to the victim, a store attendant, before he left the store.  Fraser then entered the store with a bandana concealing her face.  She held a knife towards the victim and shouted, ‘Money, money’.  She demanded that the victim fill a bag with money while she tapped the knife on the counter.  She left the store with approximately $300 in cash and left with the applicant in the Audi.
Charge 8 – Armed robbery
8	On Saturday 1 February 2020, at approximately 11:30 am, Fraser and the applicant drove the stolen Audi to a bottle shop in Boronia.  According to the applicant, Fraser suggested that it was his turn to go in and that she would remain in the vehicle ready to drive away.  As the applicant approached the front door, he pulled his beanie down to conceal his face.  He entered the store, carrying a knife and a bag.  He confronted the victim, a store attendant, who was sitting behind the service counter.  The applicant thrust the knife towards him and said, ‘Give me the money’, demanding that the victim fill the bag with money from the register.  The victim was terrified and complied.  The applicant became impatient and moved behind the counter and began to remove the money himself.  The applicant left the store with approximately $300 cash in the bag.  Fraser drove them away in the Audi.
Charge 9 – Armed robbery
9	About 30 minutes later, at approximately 12:00 pm, Fraser drove to a milk bar in Wantirna, and parked.  The applicant was wearing a hooded jumper and entered the store with a knife and a bag.  He confronted the victim, a store attendant, and held the knife to his side so that the victim could see it.  The applicant demanded money and cigarettes.  The applicant placed the bag down on the counter and the victim filled it with approximately $400 from the cash register.  He demanded cigarettes but was disturbed by a customer and grabbed the money and ran from the store.
Charge 10 – Attempted armed robbery
10	About 20 minutes later, at approximately 12.19 pm, Fraser and the applicant drove to a grocer in Glen Waverley.  Fraser double-parked the car and the applicant entered the store, having concealed his face with a bandana.  He confronted the victim, a store attendant, held out a knife and said, ‘get me all the cash into the bag’.  The victim said that he did not have any cash and offered to show the applicant.  The applicant looked inside the empty cash drawer and left the store empty handed.  The applicant and Fraser left in the Audi.
Charge 11 – Armed robbery
11	About 30 minutes later, at approximately 12:30 pm, Fraser and the applicant drove to a bottle shop in Murrumbeena and the applicant exited the vehicle.  His face was concealed with a bandana and he was carrying a knife and a bag.  He entered the store and confronted the victim, a store attendant, who was sitting behind the counter.  Pointing the knife at the victim he said, ‘put the cash in the bag’.  The victim was terrified and complied, putting approximately $200 cash into the bag, before the applicant left.  The applicant and Fraser drove away in the Audi.
Charge 12 – Attempted armed robbery
12	Fraser and the applicant then drove to Boronia to pick up her friend, CF, who was 17 years of age at the time.  Fraser then drove to a milk bar in Coleman Road, Boronia/Wantirna South (same location as in charge 7).  The applicant was in the front seat and CF was in the back seat.  The applicant entered the store carrying a knife and a bag, with a beanie concealing his face.  He confronted the store attendant (same victim as in charge 7) and her 14 year old daughter, who had been viewing footage of the armed robbery committed the day prior.  The applicant held out the knife and shouted, ‘money’.  Upon seeing the applicant the victims screamed and the store attendant called out to her husband.  The store attendant’s husband came running from the back of the store.  The applicant ran from the store, dropping the bag, beanie and knife.  He got into the vehicle and Fraser drove away at speed.  They drove to Westfield Shopping Centre located in Knox.  At approximately 2.18 pm, the applicant, Fraser and CF entered Kmart where the applicant obtained a knife and purchased a black beanie.  They left the store at 2.35 pm.
Charge 13 – Attempted armed robbery
13	At approximately 3:09 pm, they arrived at a milk bar in Knoxfield.  The applicant exited the vehicle, carrying a knife and a bag.  Fraser and CF remained in the car.  The applicant entered the store, his face covered with black fabric.  He walked up to the counter and confronted the victim, a store attendant.  The applicant held out the knife with his right hand and demanded that the victim put cash in the bag.  The victim tried to distract the applicant by saying that he could see the police outside.  The applicant went to look out the door and then returned to the counter, pointed the knife at the victim and said, ‘take out the money’.  The victim then said, ‘Look outside, police will catch you’.  The applicant left the store empty handed and left the scene with Fraser and CF.
Charge 14 – Attempted armed robbery
14	A few minutes later, they arrived in the stolen Audi at a shopping strip on Glenfern Road, Ferntree Gully.  At approximately 3.25 pm, CF entered a bottle shop.  The victim, a store attendant, asked her for ID and she said that she would go to get some.  CF exited the store and spoke to the applicant who was waiting outside.
15	The applicant was holding a knife and a bag.  He had a black piece of fabric covering his face.  After speaking for a few seconds, CF pushed the applicant towards the store and she got back into the stolen Audi.  The applicant entered the store and confronted the victim, who was at the counter, and demanded money.  The applicant was shaking the knife in front of him.  The victim said that he had no money and the applicant demanded cigarettes.  The victim said that he had no cigarettes.  The applicant left the store empty handed.  The applicant got back into the Audi and they left.
Charge 15 – Attempted armed robbery
16	About 15 minutes later, Fraser, the applicant and CF arrived at Dorset Square Shopping Centre.  The applicant had black fabric on his face and was carrying a knife and a bag.  The applicant and Fraser entered a $2 shop in Boronia.  The applicant placed a bag on the counter and held the knife towards the victims, the store attendants.  The applicant said, ‘put the money in the bag’ and then, ‘no one gets hurt, open the register’.  Fraser also approached the counter and made demands for money.  The victims both moved away from the counter and did not hand over any money.  The applicant and Fraser left empty handed.
17	The applicant was arrested on 4 February 2020 and made full admissions in a record of interview.  He detailed his involvement and provided information in relation to the roles of Fraser and CF.
Reasons for sentence 
18	After setting out the details of the offending, the judge noted that the applicant lived with his parents.  As a young child, the applicant suffered some developmental delay, particularly in respect of his speech, and was hampered by a number of behavioural issues.  The applicant attended a local primary school where he was bullied before moving to another school.  At secondary school he suffered more bullying and did not have many friends or close friends.  Despite difficult circumstances, he completed year 12 in 2019.
19	On the plea, the applicant relied on a report from psychologist Dr Julianne Reid dated 29 June 2020.  The judge made extensive reference to that report.  In Dr Reid’s opinion, the applicant did not currently meet criteria for a mental health diagnosis but had symptoms of anxiety and depression.  Although she did not believe that the applicant had an intellectual disability, she noted that the applicant’s intellectual functioning was found to be in the borderline range and in 2013 it was assessed as being the same or better than 6 per cent of individuals his age.
20	Dr Reid noted an earlier diagnosis of receptive and expressive language difficulties for which the applicant had received speech therapy and individual support.  Dr Reid was of the opinion, which the judge accepted, that the applicant is a vulnerable and impressionable boy who has consistently been the target of bullying and exploitation by peers and has had a longstanding difficulty understanding the nuances of social settings.  As a result, the applicant has had difficulties in establishing and maintaining appropriate peer relationships.
21	It was common ground before the judge that the applicant was induced to offend by his elder sister.  In a paragraph quoted by the judge, Dr Reid said:
However, while Damon may not have fully understood the legal consequences of his behaviour (and his naivety with respect to the manner in which he participated in the offences are testament to this), he was aware that what he was doing was morally wrong.  He described having questioned his own involvement at the time of the offending and described having attempted to actively reduce his criminal involvement when invited to continue the offending.  His poor problem-solving skills in this respect are evident, as was the overwhelming need to please and impress his sister by ‘pretending’ to her that he was engaging in armed robberies when he wasn’t (rather than asserting his feelings to her and refusing to continue).
22	The judge noted Dr Reid’s opinion that the applicant would be a good candidate for general therapy to address social skills, self-confidence and identity, problem-solving skills and emotional regulation.  Dr Reid was of the view that the applicant would likely suffer significantly more in prison compared to someone without his vulnerabilities and that she would have significant concerns for his physical and emotional safety living in a custodial environment for an extended period.
23	The judge noted references from the applicant’s grandmother, parents and an old friend, which supported the conclusion that the offending was out of character and that the applicant had the support of his family  The judge noted that the applicant regretted his conduct, had accepted responsibility for his wrongdoing and that his prospects for rehabilitation were very good.  The judge noted that the applicant had complied fully with his bail conditions and had been assessed as suitable for confinement in a Youth Justice Centre.
24	The judge concluded that the offending was far too serious for a CCO even though there were number of factors in mitigation and the applicant had been assessed as a low risk of reoffending and as suitable for a CCO.
25	In the result, the judge imposed an aggregate sentence in respect of all of the charges of detention in a Youth Justice Centre for a period of two years.
Submissions
26	In a detailed written case, the applicant submits that once proper account is taken of the powerful factors in mitigation, the circumstances were exceptional and called for the imposition of a more lenient sentence, being a lesser period of youth detention or a lengthy CCO.  The applicant refers to each of the mitigating factors to which the judge had regard, including his vulnerabilities that would increase hardship in custody, his youth, early plea of guilty, cooperation and assistance to police, palpable and genuine remorse, good character and lack of a prior criminal history and excellent prospects of rehabilitation.
Consideration
27	In order to succeed on the proposed ground that the sentence imposed was manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge.  In other words, it must be demonstrated that the sentence was so excessive as to reveal error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in the reasons for sentence.  The sentence must be ‘plainly unjust’ or ‘manifestly wrong’.
28	It must be acknowledged at the outset that this was serious offending.  The judge described it as below mid-range for this kind of offending, but the number of offences is an important matter in assessing the overall criminality.  The offending involved the brandishing of a bladed weapon and demands for money in circumstances in which the applicant’s face was partially concealed.  The brazen offending would have been enormously confronting to each of the victims.  The judge received victim impact statements which attested to the fear and significant emotional effects that the offending had caused the victims.  Such a response is not surprising.
29	The fact that the offences were committed over a short time frame, were unsophisticated and had a high chance of detection, suggests a level of impulsiveness and they were, on the evidence, out of character.  Nevertheless, the offences of armed robbery carried a maximum sentence of 25 years’ imprisonment and are very serious offences.  Even though the applicant’s youth and developmental deficits may diminish the importance of deterrence, nevertheless, it is important that the sentence shows the Court’s denunciation for offending of this kind and emphasises that even in cases with many moderating factors, a term of imprisonment will frequently be required.
30	There is no doubt that the judge gave anxious consideration to sentence.  It was obviously a matter of concern to the judge that he was called on to sentence a young offender with no criminal history and good family support.  Undoubtedly a period of incarceration will be confronting to the applicant and to his family.  As a young offender, rehabilitation must be a cardinal consideration, and incarceration carries risks in relation to future behaviour.  However, it is not possible to avoid the consequences of offending of this gravity.  For the reasons he gave, the judge concluded that a sentence of imprisonment in a Youth Justice Centre was required.  That conclusion was well open to him.  The sentence was not excessive.
31	Given the number of offences, and the gravity of the offending, I am satisfied that a period of imprisonment of two years to be served in a Youth Justice Centre was well within range.  The application for leave to appeal must be refused.
Postscript
32	Armed robbery is a ‘category 2 offence’ if committed in one of the circumstances identified in paragraph (da) of the s 3 definition of ‘category 2 offence’ in the Sentencing Act 1991.  Those circumstances include an offence ‘committed by the offender in company with one or more other persons’.
33	Section 5(2H) of the Sentencing Act provides that, in sentencing an offender for a category 2 offence, a court must, unless an exception applies, make an order under div 2 of pt 3 (other than a sentence of imprisonment imposed in addition to making a CCO in accordance with s 44).
34	In the prosecution summary, the prosecution submitted that s 5(2H) applied to Fraser in respect of two earlier armed robberies which she and her cousin, JM, who was 16 at the time of offending, had committed when they were both in the shops at the same time.  No submission was made that the applicant committed any of the armed robberies in company with his sister by reason of her involvement in the offending.  For that reason, the judge did not consider whether he was obliged, by s 5(2H), to impose a term of imprisonment unless one of the exceptions applied.  Presumably, no submission was made on the basis of an understanding that an offender does not act in company unless both offenders are physically present during the entirety of the offence.
35	It is not necessary to consider the correctness of that position or of the potential application for s 5(2H).  That is because, whether or not it applied, I am not satisfied that the term of imprisonment in a Youth Justice Centre of two years was wholly outside the range of sentences available.
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