and Leo Clayton (a pseudonym)[1] v The Queen

[2016] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0033
LEO CLAYTON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2016
DATE OF JUDGMENT:	6 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 88
JUDGMENT APPEALED FROM:	DPP v [Clayton] (Unreported, County Court of Victoria, Judge Smith, 28 January 2016)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Young offender – Charges of armed robbery (2), theft (3), obtaining a financial advantage by deception (3), arson (1) and committing an indictable offence while on bail (2) – Sentence of 27 months detention in youth justice centre – Whether sentence of 27 months detention in youth justice centre manifestly excessive – Not arguable that sentence manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Keating	Slink and Keating
For the Respondent	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

FERGUSON:

Introduction

1. On 18 January 2016, the applicant pleaded guilty in the County Court to three charges of theft, three charges of obtaining property by deception, two charges of armed robbery, one charge of arson, two charges of being a learner driver driving without an experienced driver, one charge of failing to stop his vehicle when requested by police and two charges of committing an indictable offence while on bail.  Following a plea hearing, on 28 January 2016, the applicant was sentenced as follows:

Charges on Indictment F12769366	Offence	Maximum	Sentence	Cumulation
1.	Theft [s 74 of the Crimes Act 1958]	10 years	3 months’ detention in a Youth Justice Centre	3 months
2.	Obtain Property by Deception [s 81(1) of the Crimes Act 1958]	10 years	1 month detention in a Youth Justice Centre	---
3.	Obtain Property by Deception [s 81(1) of the Crimes Act 1958]	10 years	1 month detention in a Youth Justice Centre	---
4.	Obtain Property by Deception [s 81(1) of the Crimes Act 1958]	10 years	1 month detention in a Youth Justice Centre	---
5.	Theft [s 74 of the Crimes Act 1958]	10 years	6 months’ detention in a Youth Justice Centre	3 months
6.	Armed Robbery [s 75A(1) of the Crimes Act 1958]	25 years	18 months’ detention in a Youth Justice Centre	Base sentence

7.	Armed Robbery [s 75A(1) of the Crimes Act 1958]	25 years	18 months’ detention in a Youth Justice Centre	---
8.	Arson [s 197(6) of the Crimes Act 1958]	15 years	12 months’ detention in a Youth Justice Centre	3 months
9.	Theft [s 74 of the Crimes Act 1958]	10 years	6 months’ detention in a Youth Justice Centre	---
Summary Charge 4.	Learner Driver Drive without Experienced Driver [r 46(2) Road Safety (Drivers) Regulations 2009]	20 penalty units	Convicted and discharged	---
Summary Charge 6.	Drive  Vehicle Knowing had been given Request to Stop by member of Police [s 64(1)(a) Road Safety Act 1986]	6 months or 60 penalty units or both	2 months’ detention in a Youth Justice Centre	---
Summary Charge 7.	Learner Driver Drive without Experienced Driver [r 46(2) Road Safety (Drivers) Regulations 2009]	20 penalty units	Convicted and discharged	---
Summary Charge 8.	Commit Indictable Offence whilst on Bail [s 30B Bail Act 1977]	30 penalty units or 3 months’ imprisonment	1 month detention in a Youth Justice Centre	---
Summary Charge 9.	Commit Indictable Offence whilst on Bail [s 30B Bail Act 1977]	30 penalty units or 3 months’ imprisonment	1 month detention in a Youth Justice Centre	---
Total Effective Sentence:		27 months’ detention in a Youth Justice Centre
Non-Parole Period:		N/A
PSD declaration pursuant to s 18(1) of the Sentencing Act 1991:		21 days
Other relevant orders: –All Victorian licences and or permits held by the offender be cancelled and disqualified from driving in Victoria for 3 years from 28 January 2016. – Forensic procedure order pursuant to s 464ZF Crimes Act 1958 – Undertaking to give evidence at Court taken into account in sentencing pursuant to s 25(2AB) Sentencing Act 1991.
6AAA:   But for the plea of guilty the Judge would have sentenced the applicant to 30 months’ imprisonment with a non-parole period of 18 months.

1. The applicant seeks leave to appeal against his sentence.  The applicant’s proposed grounds of appeal are:

1.        The sentence is manifestly excessive.

2.The learned sentencing judge erred in imposing sentences upon the applicant that gave rise to a justifiable sense of grievance in light of the sentences imposed upon the applicant’s co-offender.[2]

[2]At the hearing before this Court, the applicant sought leave to abandon ground 2. We deal with that application below.

Circumstances of the offending

1. The circumstances of the applicant’s offending were as follows.  Late on 24 February 2015, or early on 25 February 2015, the applicant went to certain residential premises.  There was a car parked outside the home.  The applicant broke into that car and removed a payWave credit card and other cards from a wallet in the glove box.  These circumstances formed the basis of charge 1 (theft).

1. On three occasions on 25 February 2015, the applicant used the payWave credit card to purchase a cap, a pair of shoes and some food.  These events constituted charges 2, 3, and 4 (obtaining property by deception).

1. The applicant was arrested on 22 May 2015 in respect of charges 1 to 4 and bailed to appear at the Magistrates’ Court on 20 July.  He failed to appear on that date and a warrant was issued for his arrest. 

1. On 23 or 24 July 2015, a Subaru station wagon was stolen by acquaintances of the applicant.  That wagon was later driven by the applicant during two armed robberies committed by the applicant and his co-offenders.  The applicant was aware that the car had been stolen.  This conduct constituted charge 5 (theft of a motor vehicle).

1. On 29 July 2015, the applicant drove the Subaru vehicle to the Mornington Peninsula.  The applicant and three co-offenders agreed to commit an armed robbery of a convenience store located on the peninsula.  The applicant drove the vehicle close to the store.  The applicant’s three co-offenders entered the store.  One was armed with a firearm.  Another was armed with an axe.  They were disguised, wearing hoodies with material across their faces.  Inside the store, the applicant’s co-offenders threatened a customer and the store attendant who was working alone.  Cash register trays were removed and emptied.  The customer and store attendant were threatened at gunpoint.  The axe was used to smash the glass doors of various cupboards, shelving and the glass doors of the service booth entry door.  A quantity of cash and cigarettes were stolen from the store to a value of just under $9,500.  This conduct constituted charge 6 (armed robbery).

1. Shortly after, the applicant drove his co-offenders away from the scene of that robbery.  A short time later, the applicant and his co-offenders decided to commit another armed robbery.  They selected another convenience store on the Mornington Peninsula.  Again, the applicant drove the vehicle close to the store in question.  The applicant’s co-offenders entered the store, armed as on the earlier occasion, and committed the robbery as planned.  The store attendant, again working alone, was menaced with the firearm while a demand was made for money and cigarettes.  At one point, the firearm was pressed into the attendant’s head while the service booth and windows were smashed with the axe.  Again, cash and cigarettes to a value of just under $10,000 were taken from the store.  That conduct constituted charge 7 (armed robbery).

1. Following the robbery, the applicant then drove his co-offenders away from the scene.  He later stopped on the side of the road, to dispose of clothing worn by the co-offenders, cigarette trays, cash trays and the axe.  The stolen money and cigarettes were divided amongst the group.  As the sentencing judge noted, it would seem that the applicant received approximately $30 in coins together with several packets of cigarettes.[3] 

   [3]DPP v [Clayton] (Unreported, County Court of Victoria, Judge Smith, 28 January 2016) (‘Reasons’), [9].

1. On the following day, the applicant and three co-offenders set fire to the Subaru vehicle, resulting in it being extensively damaged.  The applicant made a video recording of the burning Subaru by using his mobile phone.  The burning of the Subaru constituted charge 8 (arson).

1. On 31 July 2015, two co-offenders of the applicant stole a Hyundai motor vehicle from the Narre Warren area.  The co-offenders then picked up the applicant.  The applicant was aware that the vehicle was stolen, nevertheless he drove his two co-offenders to a residence in the Tooradin area.  That conduct constituted charge 9 (theft of a motor vehicle).

1. On each of the occasions that the applicant drove the Subaru and the Hyundai vehicles, he was a learner driver.  There was no experienced driver seated beside the applicant.  That conduct constituted the two summary learner driver offences. 

1. With regard to the summary charge of driving knowing he had been given a direction to stop by police, on 31 July 2015, while the applicant was driving a motor vehicle, police activated warning lights on their vehicle and directed the applicant to stop.  The applicant accelerated away and did not stop.  The applicant drove at high speed until the police were forced to cease their pursuit. 

1. Summary charges 8 and 9 were constituted by the applicant’s commission of the armed robberies (charges 6 and 7) while on bail (summary charge 8), and the applicant’s commission of the third theft charge (charge 9), again while the applicant was on bail (summary charge 9).

The applicant’s background

1. The applicant was aged 18 years of age at the time of his offending.  He was 19 years of age at the time of sentence.  He was born in New Zealand.  His family came to Australia when he was 12 years of age.  Following the completion of his secondary schooling, the applicant commenced a roof tiling apprenticeship which he did not complete.  As the judge noted, the applicant described his occupation as a concreter.  At the time of his offending, the applicant lived with his parents.  At the time of sentencing, he had a girlfriend with whom he had a young child. 

1. As the judge noted, the applicant has prior convictions dating back to 2012.  At the time he committed the offences constituted by charges 1 to 4, the applicant was subject to an undertaking that he had made to a court to be of good behaviour for 12 months.  At the time he committed the offences the subject of charges 5 to 9, the applicant was on bail for the offending involved in charges 1 to 4. 

1. On 9 June 2015, the applicant was sentenced in respect of offences of unlawful assault, criminal damage and theft.  These offences were committed before the offending the subject of the present application. 

1. In late November 2015, the applicant committed a number of further offences:  theft of a motor vehicle, two robberies, driving a motor vehicle as a learner driver without an experienced driver and (again) committing an indictable offence while on bail.  On 9 December 2015, the applicant was sentenced in respect of these offences to a period of detention in a Youth Justice Centre for 16 months.[4]  The applicant was serving this sentence at the time he was sentenced for the present offending.

   [4]The applicant was also fined $300 and pre-sentence detention was declared as being 13 days.

The plea hearing

1. On the plea hearing, it was submitted on behalf of the applicant that a further period of detention in a Youth Justice Centre, rather than a term of imprisonment, was appropriate.  Ultimately, the sentencing judge was urged to consider a period of time in detention that was ‘in parity with’ a sentence that had already been imposed by the Children’s Court on a co-offender in respect of the two armed robberies.  The co-offender (‘Q’) had been sentenced in respect of his involvement in the two armed robberies, and other offending committed by him, to a period of 16 months’ detention in a Youth Justice Centre.  The offending for which Q had been sentenced was described in an exhibit tendered on the plea hearing as being:

Armed robbery (x 2), numerous thefts, and numerous other charges.

1. On the plea, in mitigation of the sentence to be imposed upon him, the applicant also relied upon the fact that he had made extensive admissions to police and had given an undertaking to give evidence against a co-accused at a trial later this year.  Additionally, it was submitted that the Court should take into account that the applicant was not a primary offender, being merely the driver of the getaway car in respect of the two armed robberies.  Further, it was submitted that the applicant was entitled to the benefits which flow from a plea of guilty made at an early stage — in this case, a plea entered at the time of committal.

1. The prosecution conceded that detention in a Youth Justice Centre was an appropriate disposition.  In relation to parity with Q, the prosecution noted that Q was younger and had less prior convictions;  whereas the applicant’s offending involved breaching an undertaking to be of good behaviour and contravened a conduct condition of the bail granted in May 2015. 

1. The prosecution conceded that the applicant was entitled to a sentencing discount for his undertaking to give evidence and his admission in relation to the charge of arson (charge 8).  The prosecution conceded that without the applicant’s admission in relation to the arson offence, a charge may not have been filed.

1. In sentencing the applicant, the prosecutor submitted that the Court should take into account the serious nature of the offending and that it was against ‘soft targets’ so far as the armed robberies were concerned. 

The judge’s reasons

1. The judge commenced his reasons for sentence with a description of the applicant’s offending,[5] a description of the applicant’s background[6] and a description of the applicant’s prior convictions and other offending.[7]  The judge then said:

The basic purposes for which a court may impose a sentence in respect of you include punishment of you, denunciation of your offending conduct, to deter you from committing such offences again and protection of the community.  However, given your age, the primary sentencing consideration is to facilitate your prospects for rehabilitation.

I must have regard to a range of matters such as the seriousness of your offences, your culpability for them, your personal circumstances and the circumstances of your victims.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders such as you are rehabilitated and reintegrated into society.

I consider that the offences for which you are now before this court are serious offences, especially the two armed robberies.  You well knew that your co-offenders were armed, one with a gun and one with an axe.  You well knew that it was likely that those weapons were likely to be used in one way or another on those occasions.  Indeed, they were used to threaten and intimidate innocent persons and to cause extensive damage.  The role you played in driving them to the location of the robberies and acting as the getaway driver was an important one.

I consider that, in respect of each of the offences for which you are before the court, your culpability and degree of responsibility is high.[8]

[5]Reasons [2]–[13].

[6]Ibid [14]–[17].

[7]Ibid [18]–[23].

[8]Ibid [24]–[26].

1. The judge expressed his concern that: first, the February 2015 offending (constituted by charges 1 to 4) was committed while the applicant was on a good behaviour bond; secondly, the July 2015 offending (constituted by charges 5 to 9) while the applicant was on bail in relation to the February 2015 offences; and thirdly, again while the applicant was on bail, the applicant committed the November 2015 offences to which we have already referred.  The judge said that all of these matters indicated to him that the applicant had shown little (if any) respect for the law and had learned ‘virtually nothing’ from the circumstances of both of his arrests in 2015.[9]

   [9]Ibid [29]–[30].

1. The judge then set out various matters that he accepted went in mitigation of the sentence to be imposed:

(a)       Firstly, [the applicant was] relatively young.

(b)Secondly, [the applicant] appear[ed] to have reasonable prospects for rehabilitation. …  [H]owever, it [was] of concern that [the applicant] committed further serious offences in November 2015 whilst on bail in respect of these offences.  Normally, … that would cast some doubt upon [the applicant’s] prospects for rehabilitation.

(c)Thirdly, although [the applicant had] prior convictions, [he did] not appear to have offended in such a serious way before these offences, especially the two armed robberies.

(d)Fourthly, [the applicant’s] plea of guilty was made at a relatively early stage.  [The judge accepted] that this is indicative of some remorse on [the applicant’s] part.  Further, [the judge took] into account that [the applicant’s] plea [had] utilitarian value in that the victims of [his] offences and other witnesses were not required to give evidence at a trial.  There [had] been a saving of court resources.

(e)Fifthly, [the judge accepted] that [the applicant was] not the primary offender or instigator of either of the armed robberies.  However [the applicant was] well aware of what was planned and … went along with it willingly.   [The applicant was] then aged 18 … and well aware of the criminal nature of [his] conduct.  [The judge noted] that these were not instances where [the applicant was] in the company of older, more influential co-offenders.  In fact, most were younger than [the applicant].[10]

[10] Ibid [33]. As to prospects of rehabilitation being ‘reasonable’ see also Reasons [39]–[40].

1. As to the statement made by the applicant concerning his activities and the activities of others on the night of the two armed robberies, and the applicant’s undertaking (under oath) that he would give evidence consistent with this statement, the judge said that this entitled the applicant to a substantial discount in relation to the sentence that was about to be imposed.[11] 

   [11]Reasons [34]–[35].

1. Next, the judge described reports that had been tendered in relation to the applicant and then his Honour referred to further matters specific to the applicant,[12] saying that he (the judge) had regard to the sentences handed down to two co-offenders, one of whom was Q.[13]

   [12]Ibid [36]–[41].

   [13]Ibid [44].

1. Finally, the judge said:

I am conscious of the provisions of s.33(1) of the SentencingAct.  That section provides that a term of detention imposed on a young offender must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of detention imposed on the young offender, whether before or at the same time as that term.

In view of the serious nature of your offences and the repetitive nature of your offending, I do not consider that it is appropriate to impose sentences that are wholly concurrent with each other sentence that I impose here.  Rather, I consider that such sentences that I am about to impose should be partly concurrent with such other sentences.

Over the sentence that I impose shall be concurrent with your partially completed sentence of detention imposed by the Magistrates' Court on 9 December 2015.[14]

[14]Ibid [45]–[47].

Parity

1. As we have said, at the hearing before this Court, the applicant sought leave to abandon ground 2.  While leave to abandon ground 2 should be granted, it is instructive for the purposes of the manifest excess ground to consider the parity question raised in the applicant’s application for leave to appeal.

1. As was said by this Court in Anthony v The Queen:[15] 

The principles governing parity are well established.  As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.  If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.  However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did.  Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[16]

[15][2016] VSCA 22 (‘Anthony’).

[16]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell P); Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]–[25] (Weinberg and Kyrou JJA); Collins v The Queen [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA); Anthony [2016] VSCA 22 [12].

1. However, as has also been said before, there can be considerable difficulty in ensuring parity between co-offenders where one offender is sentenced as an adult and the other as a child.  The sentencing regimes for sentencing children on the one hand, and adults on the other hand, are very different.  As Harper JA[17] observed in Poutai v The Queen:[18]

The two regimes are strikingly different, as this Court has remarked previously.  There is, accordingly, considerable difficulty in ensuring parity between co-offenders when one is sentenced as an adult and the other as a child.  Even if the ages of the two are similar, but one is sentenced as an adult while the other is not, difficult issues of parity may arise.  … In the words of Ormiston J in R v Evans:

‘Consistency in sentencing is no doubt in general terms, a desirable aim, however difficult it is to achieve in practice having regard to the multifarious factors which must now be taken into account.  One of the virtues, however, of the children’s court system is that that court can make special allowance for factors which would otherwise be irrelevant under the Sentencing Act.  Consistency must work both ways and it would be entirely inappropriate that members of the children’s court should temper their sentences to reflect what had been done or might yet be done in sentencing offenders pursuant to the Sentencing Act.’[19]

[17]With whom Buchanan JA agreed.

[18][2011] VSCA 382 (‘Poutai’).

[19]Poutai [2011] VSCA 382 [21] (citations omitted).

1. Q was the co-offender armed with the axe in the two armed robberies.  At the time of his offending he was 16 years of age.  He was 17 years of age at the time of sentencing.  For this offending, and what was described as ‘numerous thefts and numerous other charges’, Q received a sentence of 16 months’ detention in a Youth Justice Centre.  While general deterrence was a significant matter so far as the sentencing of the applicant was concerned, it had no part to play in the sentencing of Q.[20]

   [20]See s 362 of the Children, Youth & Families Act 2005;  CNK v The Queen (2011) 32 VR 641; Webster v The Queen [2016] VSCA 66. Webster is an example of the very different sentences that might be imposed on a 17 year old, compared to that which might be imposed on an 18 year old, for the same offending.

1. Notwithstanding all of the mitigatory factors which the judge took into account (and to which we have already referred), it is simply not possible (as is now acknowledged by the applicant) to say that there is any relevant disparity between the sentence of 16 months’ detention imposed upon Q and the sentence of detention imposed on the applicant (which we note only imposes an additional period of detention of just 13 months on top of that imposed for the November 2015 offending).  Further, as the judge’s reasons for sentence disclose,[21] the judge gave careful consideration to the relevant parity questions that he was required to consider in sentencing the applicant, and also to the differing roles of the applicant and his co-offenders in the offending for which the applicant fell to be sentenced.  The applicant’s complaint about parity was not reasonably arguable, and he should have leave to abandon it.

   [21]Reasons [44].

Ground 1:  was the sentence manifestly excessive?

1. In arguing that the sentence imposed was manifestly excessive, the applicant contends that the judge erred in his findings in relation to the early stage at which the plea of guilty was entered, the applicant’s prospects for rehabilitation and in respect of the issue of remorse.  There is no substance in any of these complaints.  In our view the judge dealt appropriately with all of the matters relied upon by the applicant in mitigation of sentence.  The judge correctly identified the time at which the guilty plea was entered.  Further, the judge’s conclusions about prospects of rehabilitation and remorse were well-justified by reference to the applicant’s criminal history and his subsequent offending.

1. As has been said many times before, manifest excess is a difficult ground to make out.  The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[22]  In the present case, it is not reasonably arguable that the sentence imposed by the judge was manifestly excessive.  If anything, and notwithstanding the powerful mitigatory factors upon which the applicant is able to rely, the sentences imposed for the two very serious offences of armed robbery were very lenient — as was the total effective sentence in respect of the entirety of the applicant’s offending.

   [22]R v Abbott (2007) 170 A Crim R 306.

Conclusion

1. The application for leave to appeal against sentence must be refused.

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