Sarvak v The Queen [2011] VSCA 300 (7 October 2011)

Last Updated: 7 October 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

	S APCR 2010 0125

RAYLENE SARVAK	Appellant
v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 August 2011
DATE OF JUDGMENT	7 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 300
JUDGMENT APPEALED FROM	DPP v Sarvak, Raylene; Sarvak, Anthony [2010] VCC 0445 (Unreported, County Court of Victoria, Judge Coish, 27 April 2010)

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CRIMINAL LAW – Sentence – Guilty plea to armed robberies, attempted armed robbery and conspiracy to commit armed robbery – Appellant sentenced to total effective sentence of 11 years’ imprisonment and non-parole period of 8 years – Whether sentence manifestly excessive – Unjustifiable disparity with co-offender’s sentence – Appellant re-sentenced to 8 years and 6 months’ imprisonment and non-parole period of 5 years and 6 months.

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Appearances:	Counsel	Solicitors

For the Appellant	Mr S Ginsbourg	Melton Law Offices

For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA

1 Having had the advantage of reading the draft reasons of Redlich JA I would also allow the appeal and re-sentence the appellant as his Honour proposes.

REDLICH JA:

2 During June and July 2008, the appellant, a young woman now in her 30s, and her former husband committed a number of armed robberies of suburban hotels and clubs in which they terrorised the establishments’ patrons and staff at gunpoint, stealing in total over $16,000.00. The appellant pleaded guilty in the County Court to five armed robberies, one attempted armed robbery and one conspiracy to commit an armed robbery. The appellant received a total effective sentence of 11 years’ imprisonment with a non-parole term of eight years’ imprisonment. Her co-offender pleaded guilty to the same counts and one additional armed robbery and was sentenced to seven years’ imprisonment with a non-parole period of five years.

3 The appellant now appeals against her sentence on the grounds that her sentence was unjustifiably higher than the sentence imposed on her co-offender and that the total effective sentence, non-parole period and individual sentences were manifestly excessive, having been granted leave to do so on 1 April 2011.

4 For the reasons that follow, I would allow the appeal and re-sentence the appellant to a total effective sentence of eight years and six months’ imprisonment with a non-parole term of five years and six months’ imprisonment.

Circumstances leading up to offending

5 Between 5 June 2008 and 28 July 2008 the appellant and the co-offender, her former husband, Mr Anthony Sarvak, committed five armed robberies of suburban hotels and clubs. Each of these offences comprise one of the five counts of armed robbery the appellant pleaded guilty to (counts 1 to 5).

6 The robberies were usually carried out in the early hours of the morning, with what has sometimes been described as the ‘classic hallmarks of a professional armed robbery – selection of the place to be robbed in advance, care taken before entry, then the actual crime carried out with the three enduring features of the professional: disguise, a weapon, and threats of violence to procure compliance and submission to demands.’[1]

7 On each occasion the appellant and co-offender entered suburban hotels or clubs together, mainly in the early hours of the morning, and demanded from staff that they hand over the cash available. In total, the appellant and co-offender obtained $16,220.45 from these robberies, with amounts stolen on each occasion ranging from $1,650.00 (count 4) to $6,299.00 (count 5).

8 In every instance the appellant and co-offender disguised their faces with a balaclava or motorcycle helmet and a scarf. The appellant and co-offender were aggressive and abusive during various robberies, yelling at staff and patrons to remain on the ground, demanding staff hand over cash instantly and threatening staff not to activate the alarm. However, the sentencing judge found that there was no actual physical violence during the offending.[2]

9 On all but one occasion the co-offender carried with him a long-barrelled revolver to threaten and terrify the patrons and staff of the hotels into submission. The sentencing judge was satisfied beyond reasonable doubt that the revolver was loaded during the offences.[3]

10 With respect to the armed robbery constituting count 2, the appellant had control over the firearm and used it to threaten a staff member to hand over money: the sentencing judge remarked that the staff member ‘felt threatened for her life and handed over the money because she thought the [appellant was] going to shoot her.’[4]

11 At around 3.00 pm on 4 August 2008 the appellant and the co-offender attempted to rob the St Albans Hotel in St Albans: this offence constitutes the relevant count of attempted armed robbery (count 6).

12 In accordance with their usual mode of operating the appellant and co-offender disguised their faces with balaclavas, and the co-offender carried with him a long-barrelled revolver. The robbery was unsuccessful because the cashier retreated into a staff office and locked the door behind him after the appellant demanded he hand over available cash. The appellant attempted, without success, to reach over the security screens at the cashier’s counter and presumably get at the money or door behind which the cashier had fled.

13 The co-offender was also charged with an additional, sixth, count of armed robbery at the Red Lion Hotel in Ballarat on 9 August 2008. The co-offender, and his male accomplice on that occasion, appeared to follow the same mode of operating as the co-offender and the appellant with respect to the counts of armed robbery the subject of this appeal. About $5,071.05 was stolen. The appellant and co-offender only stole more than this amount on one of the five armed robberies they committed together, relating to the armed robbery at the Victoria on Hyde Hotel in Yarraville, the subject of count 5.

14 On 14 August 2008 the appellant and the co-offender conspired with each other to commit another armed robbery on the Bakers Arm Hotel in Abbotsford. This comprises the offence the subject of count 7.

15 In the early hours of the morning on 13 August 2008, the appellant, co-offender and an accomplice travelled to the hotel. On hearing the alarm of a nearby building the trio left the premises. They subsequently returned to the hotel in the early hours of the following day only to find the doors locked. The trio was under police surveillance since being noticed during their earlier visit to the premises and were arrested shortly after abandoning their plan to rob the hotel once they found the doors to the hotel locked.

Personal circumstances of offender

16 The appellant was 29 years of age at the time of offending and 30 years of age at the time of sentence. She became romantically involved with the co-offender from a young age and began living with him while she was still at school. The co-offender is around eight years her senior.

17 The appellant and co-offender were married in 1998 and had four children together, aged 11, 8, 5 and 4 at the time of sentence. The appellant was a ‘stay at home mum’ while the co-offender worked, first in an engineering workshop at West Footscray, followed by a series of unskilled and semi-skilled jobs.

18 The co-offender became unemployed in 2007 and this had disastrous consequences for him, the appellant and their family. The co-offender had been using methylamphetamine since 2004 and the loss of his job only served to escalate this habit and his penchant for gambling. After the co-offender became unemployed, the appellant began using drugs such as methylamphetamine or ice. After the co-offender lost his job, the appellant and co-offender had to sell their family home. After making mortgage repayments they were left with a sum of money that soon dwindled in the face of their drug use and the co-offender’s gambling. The appellant and co-offender then resorted to robbery to feed their habits. The sentencing judge also found that from the time the co-offender lost his job his domestic relationship with the appellant had also begun to deteriorate and become ‘volatile with mutual acts of violence’.[5] In early 2010 the appellant and co-offender divorced.

19 During an extensive plea in which the appellant gave evidence, it was submitted on behalf of the appellant that she had been dominated by the co-offender, who was the mastermind and driving force behind the armed robberies and related inchoate offences. However, the sentencing judge rejected this line of narrative, remarking that in light of the whole of the evidence the appellant was a ‘most unimpressive witness’. His Honour found the appellant and co-offender were equally involved in the commission of each of the offences with which the appellant was charged.

20 The appellant has two prior convictions for traffic violations which for present purposes are of no relevance.

Grounds of appeal

21 During oral submissions counsel for the appellant suggested that her complaint raised under ground 2 that her sentence is manifestly excessive and the complaint made under ground 1 that her sentences infringe the parity rule are interrelated, in the sense that an error in applying the principle of parity complained of in the first ground, may have contributed to the manifest excess of the sentence attacked in the second ground.

22 It is desirable to first consider under ground 2 whether the individual and total effective sentences of the appellant, are so heavy as to attract appellate intervention before considering whether they should be corrected with a view to ironing out any established disparity with her co-offender. But any apparent disparity between their sentences will of itself inevitably attract close evaluation of the sentence under challenge.[6]

Ground 2 – Manifest excess

23 It is unnecessary to restate in full the principles governing an appeal on the grounds of manifest excess. Suffice it to say that an appellate court should only allow such an appeal if it is satisfied the sentence imposed below was outside the range of sentences reasonably open to the sentencing judge.[7]

24 The prosecutor submitted during plea that the appellant should receive a total effective sentence in the range of 11 years’ to 13 years’ imprisonment. An ill-judged Crown submission on range will not promote consistency of sentencing and reduce the risk of appellable error. It may have the opposite effect, and may lead to sentencing error where otherwise there would have been none.[8] The Crown’s compliance with the obligation stated in MacNeil-Brown[9] will only produce a benefit to the sentencing process where the range that is proffered is appropriate, sufficiently broad and is accompanied by an informative submission which provides a justification for the proposed range.[10] A selected range that does not accurately reflect current sentencing practice or the principle of totality, is calculated to lead the sentencing judge into error.

25 The Crown submission as to the appropriate sentencing range infringed the principle of totality. One can only speculate whether its genesis was an erroneous view of current sentencing practice for armed robberies. But whatever the explanation, the range submitted by the Crown was quite excessive and in all likelihood contributed to his Honour’s view of the sentences which should be imposed. As it was, his Honour selected the head sentence at the very bottom of that range.

26 The individual sentences imposed on each count of armed robbery was five years. During the appeal, statistics and sentencing trends for armed robbery between 2004–2005 to 2008–2009 were handed-up to the Bench, disclosing a median sentence for armed robberies of three years and the most common length of imprisonment to be two years.[11] Counsel for the appellant submitted these figures reveal that the total effective sentence, non-parole period and individual sentences were manifestly excessive. In R v Carroll[12] Hansen AJA (as his Honour then was) summarised a recent Sentencing Snapshot of armed robbery published by the Sentencing Advisory Council which showed that for the period 2002–2003 to 2006–2007:

sentences of imprisonment for armed robbery ranged from seven days to 11 years;
the median length of imprisonment was two years and nine months; and
the average length of imprisonment ranged from two years and six months (in 2003–2004) to three years and two months (in 2006–2007).

In the present case, the judge imposed a sentence of three and a half years on each count of armed robbery, which was only slightly higher than average. It is to be noted, however, that the above figures refer to sentences for individual counts of armed robbery, whereas of the 1119 people sentenced for armed robbery in the relevant period, well over half were sentenced for one or more other offences at the same time. The statistics show that for people sentenced for armed robbery and at least one other offence, in the period 2002–2003 to 2006–2007:

the median total effective sentence was three years and five months with a non-parole period of one year and nine months; and
in 2006–2007, the average total effective sentence was four years and one month with a non-parole period of two years and five months.

27 I pause to repeat the frequently made observation that sentencing statistics such as these are not an especially illuminating means of indicating the correct range of sentences reasonably open to the sentencing judge in any particular case and caution should be exercised in relying on such data.[13] However, for the purposes of this case, the statistics relied on by the appellant shed some light on the excessiveness of the individual sentences imposed below.

28 The individual sentences imposed were very high, although I would not go so far as to say they were beyond current sentencing practice,[14] but the orders for cumulation were so substantial as to produce, when combined with the base sentence of five years for the first armed robbery, an aggregate sentence which, in my respectful view, infringed the principle of totality and was manifestly excessive.

29 With respect to the non-parole period, it was submitted on behalf of the appellant that this minimum term was manifestly excessive when viewed alone and in light of the head sentence. Where the total effective sentence is manifestly excessive it will usually follow that the minimum period fixed is also manifestly so.[15] The appellant’s prospects of rehabilitation were found to be reasonably good. There being no countervailing considerations, I have concluded that the non-parole period is also manifestly excessive.[16]

30 I do not however accept the submission that as a matter of principle, the minimum term was excessive because of its relationship to the head sentence. The non-parole term was approximately 73 per cent of the head sentence. There is no strict rule that the minimum term should constitute a specific proportion of the head sentence. While it is not uncommon for the non-parole term to be in the order of two-thirds to three-quarters of the head-sentence,[17] this range of ratios, whatever it may be, is always informed by the circumstances of each case.[18]

31 Furthermore, in cases of very serious offences, it is not uncommon for a sentencing court to fix a higher ratio of the non-parole term to the head sentence when compared to less serious offences.[19] Given that sentencing courts have for some time stressed the very serious nature of armed robbery,[20] fixing a non-parole term that constitutes more than two-thirds of the head sentence does not necessarily betoken error on the part of the sentencing court. The non-parole term is not manifestly excessive simply on the basis of its proportion to the head sentence.

Ground 1 – Parity

32 I turn to ground 1 and the degree of parity which the re-sentencing of the appellant should bear to the co-offender’s sentence.

33 The gist of the appellant’s submissions was that she felt a justifiable sense of grievance in that the sentence that was imposed was said to be entirely inconsistent with the sentence received by the co-offender.

34 The principle of parity requires that any difference between sentences imposed on co-offenders for the same offence should not be such as to engender a justifiable sense of grievance on the part of the offender with a heavier sentence or give the appearance that justice has not been done.[21] The principle is based on the notion of equal justice[22] and the aspiration for consistency in sentencing. Where all other things are equal, persons concerned in the same crime should receive the same punishment; and where other things are not equal due discrimination should be made.[23] Accordingly, where there are sound reasons for a marked disparity in sentence between co-offenders, the principle of parity will not have been undermined.[24]

35 In his sentencing remarks, his Honour made clear that the primary consideration for the disparity between the sentences he imposed was the significant assistance the co-offender provided authorities in prosecuting the case against the appellant. The appellant contends that the sentencing judge accorded too much weight to that assistance.

36 The co-offender’s co-operation appears to have been a significant factor in securing the appellant’s plea. While the appellant made some initial admissions to investigators, she made a ‘no comment’ interview. Both co-offenders’ cases were listed for trial in January 2010. On the day of their trial the co-offender pleaded guilty and offered to assist the Crown in prosecuting its case against the appellant, whose trial had been adjourned to April 2010. The co-offender provided the authorities with a 23 page statement dated 11 February 2010 making full and frank admissions, presumably implicating the appellant. The appellant subsequently pleaded guilty in March 2010. Counsel for the appellant at the appeal conceded that the offer of co-operation by the co-offender, while not the sole influence, may have been a contributing factor to securing the appellant’s plea.

37 His Honour found in the case of the co-offender, an additional mitigating circumstance that prison would be more burdensome for him. While the sentencing judge acknowledged the appellant’s imprisonment and separation from her children may have a ‘great impact’ on her,[25] his Honour accorded greater weight to the effect imprisonment would have on the co-offender on the basis of his mental condition[26] and because of his status as an informant.[27]

38 However, aside from the assistance provided to the authorities and this mitigating circumstance, there was little to distinguish between the mitigating considerations regarding the appellant’s and co-offender’s circumstances. His Honour found the appellant’s and co-offender’s respective roles [28] in the relevant armed robberies and prospects of rehabilitation to be broadly equal.[29] His Honour found the prior convictions of both to be of ‘very little relevance’[30] or ‘limited relevance’[31] to their respective sentences, although the co-offender’s antecedents included prior convictions for burglary and possession of a regulated weapon.

39 A comparison of the appellant’s and her co-offenders’ individual sentences and orders for cumulation is illuminating. The sentencing judge imposed a term of five years’ imprisonment on each of the armed robbery counts in the case of the appellant and three years’ imprisonment on each of the armed robbery counts, including the additional sixth count, in the case of the co-offender. In the case of the appellant a sentence of thirty months’ imprisonment was imposed on the attempted armed robbery count and the count of conspiracy to commit armed robbery and in the case of the co-offender a sentence of eighteen months was imposed on each of those counts.

40 In the appellant’s case it was ordered that 15 months of each of the sentences imposed on the counts of armed robbery, and six months of each of the sentences on the counts of conspiracy and attempted armed robbery be served cumulatively on the sentence on the first armed robbery count. However, in the case of the co-offender, eight months’ of each of the sentences imposed on the counts of armed robbery and four months of each of the sentences on the counts of conspiracy and attempted armed robbery were ordered to be cumulated on the sentence on the first armed robbery count. This resulted in a difference of approximately 40 per cent in total effective sentence, after allowing for the cumulation of the sentence on the co-offender’s additional armed robbery.

41 As the sentencing judge appears to have intended, the co-offender’s assistance to the authorities in prosecuting the appellant, very largely accounted for the substantial difference in the individual sentences and orders for cumulation. Each amount cumulated for the armed robberies in the case of the appellant was almost 50 per cent higher than the amounts cumulated for her co-offender. When those amounts are aggregated upon their respective base counts, which themselves were quite disparate, the total effective sentences produced, allowing for the differences between them, were in my respectful opinion unjustifiably disproportionate and so infringed the principle of parity and, in the appellant’s case, the principle of totality.

42 Some disparity between the appellant and her co-offender was warranted because of his co-operation with authorities and the fact that prison would be more burdensome. That said, the degree of the disparity in the sentences imposed upon each of them would in my respectful opinion engender a justifiable sense of grievance in the appellant and give the appearance, to an objective bystander, that justice has not been done.[32] Accordingly, I propose a sentence that is both within the range available and justifiably disparate from her co-offender’s sentence.

43 The nature and extent of the assistance which a co-offender can provide to investigating or prosecuting authorities will vary considerably from case to case and the discount must vary considerably depending upon those circumstances. While the quantum of discount for such assistance was a matter for the discretion of the sentencing judge,[33] the very substantial discount that was allowed is more

commonly found in cases where there has been a high and extended degree of assistance given to investigating authorities in solving criminal activity or where the offender has given or undertakes to give very important evidence against co-offenders in challenging circumstances. This was not such a case. Moreover, where the discount for assistance by one co-offender is very substantial, the principle of parity still requires that the sentence imposed on the co-offender, even if it should be regarded as inappropriately low, cannot be ignored for the purpose of sentencing the other co-offender and may require some reduction in that co-offender’s sentence—though not to the point where it is inadequate.^[34]

Re-sentencing

44 I would sentence the appellant on each of counts 1, 2, 3, 4 and 5, being the counts of armed robbery, to three years and six months’ imprisonment on each count; on count 6 for attempted armed robbery to two years’ imprisonment; and on count 7 for conspiracy to commit armed robbery to two years’ imprisonment. I would direct that 12 months of each of the sentences imposed on the second, third, fourth and fifth counts and six months of each of the sentences imposed on the sixth and seventh counts be served cumulatively on each other and on count 1 making a total effective sentence of eight years and six months’ imprisonment. I would order that the appellant serve a minimum period of five years and six months’ imprisonment before she is eligible for parole.

45 Pursuant to s 6AAA of the Sentencing Act 1991, if the appellant did not plead guilty, I would have declared that she be sentenced to a total effective sentence of 10 years and six months’ imprisonment, with a minimum term of seven years’ imprisonment.

HANSEN JA:

46 I agree with Redlich JA.

^[1] R v Lim (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Winneke P, Charles JA and Hedigan AJA, 13 March 1997) 7 (Hedigan AJA, with Winneke P and Charles JA agreeing).

^[2] DPP v Sarvak, Raylene; Sarvak, Anthony [2010] VCC 0445 (Unreported, County Court of Victoria, Judge Coish, 27 April 2010) [16].

^[3] Ibid.

^[4] Ibid [6].

^[5] Ibid [41].

^[6] Reg. v Kennedy (1979) 37 FLR 356, 373 (Street CJ, with O’Brien J agreeing) cited with approval in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 618 (Brennan J).

^[7] See eg. R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309 [14] (Maxwell P, with Eames JA and Habersberger AJA).

^[8] Bourne v The Queen [2011] VSCA 159, [21]–[23] (Maxwell ACJ, Buchanan and Bongiorno JJA).

^[9] [2008] VSCA 190; (2008) 20 VR 677.

^[10] WCB v The Queen [2010] VSCA 230, [52] (Warren CJ and Redlich JA).

^[11] Sentencing Advisory Council, Sentencing Snapshot No. 92: Sentencing trends in the higher courts of Victoria 2004–05 to 2008–09 (March 2010) 5.

^[12] [2010] VSCA 20, [20]–[21] (with Neave and Redlich JJA agreeing).

^[13] DPP v Maynard [2009] VSCA 129, [35]; DPP (Cth) v Milne [2001] VSCA 93, 13. R v Skuta [1998] VSCA 35, [22] (Phillips JA, agreeing in the result with Winneke P and Kenny JA). See also Pavlic [1995] TASSC 96; (1995) 83 A Crim R 13, 31; DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 547 [57] (Maxwell P, Redlich JA and Robson AJA).

^[14] See eg. R v Bortoli [2006] VSCA 62; DPP v Kennedy [2008] VSCA 263; R v Carroll [2010] VSCA 20.

^[15] See eg. DPP v Johnson [2011] VSCA 288, [51] (Redlich JA, with Neave and Bongiorno JJA agreeing).

^[16] Mak v R [2011] VSCA 5, [32] (Weinberg JA and King AJA). See also R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698 [15] (Callaway JA).

^[17] See eg. Romero v The Queen [2011] VSCA 45, [25]–[26] (Redlich JA, with Buchanan and Mandie JJA agreeing).

^[18] See eg. ibid; R v Bolton and Barker (1998) 1 VR 692, 699 (Callaway JA, with Hayne and Charles JJA agreeing).

^[19] See eg. Romero v The Queen [2011] VSCA 45, [25]–[26] (Redlich JA, with Buchanan and Mandie JJA agreeing); Demarco [1999] VSCA 69, [36] (Phillips CJ, Phillips and Buchanan JJA); Felicite v The Queen [2011] VSCA 274, [38]–[40] (Redlich JA, with Harper JA and Robson AJA agreeing).

^[20] See eg. R v Smith (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, McInerney, Menhennitt and McGarvie JJ) 11; R v Lim (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Winneke P, Charles JA and Hedigan AJA, 13 March 1997) 9–10 (Winneke P).

^[21] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ, with Wilson J agreeing), 612–613 (Mason J), 618 (Brennan J), 623 (Dawson J with Wilson J agreeing).

^[22] See eg. Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 301 (Dawson and Gaudron JJ).

[23] R v Tiddy [1969] SASR 575, 577 (Bray CJ, Bright and Mitchell JJ); R v Kite (1971) 2 SASR 94, 95 (Bray CJ, Hogarth and Sangster JJ).

^[24] See eg. Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 309 (Gaudron and Dawson JJ), 313 (McHugh J), 325–326 (Gummow J).

^[25] DPP v Sarvak, Raylene; Sarvak, Anthony [2010] VCC 0445 (Unreported, County Court of Victoria, Judge Coish, 27 April 2010) [46].

^[26] Ibid [42].

^[27] Ibid [38].

^[28] Ibid [36].

^[29] Ibid [43] (regarding the co-offender), [53] (regarding the appellant).

^[30] Ibid [57].

^[31] Ibid [56].

^[32] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA, with Winneke P agreeing); Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 613 (Mason J). See also Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 323 (Gummow J), 342 (Kirby J).

^[33] Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [47] (Maxwell P, with Redlich JA agreeing).

^[34] Farrugia v The Queen [2011] VSCA 24, [31] (Redlich and Bongiorno JJA).

Subsequent Judicial Consideration6

Treatment Over Time

Referred to (6)