and Nicholas Harris v The Queen
[2013] VSCA 234
•20 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0083 | |
| NICHOLAS HARRIS | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | NETTLE and COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 August 2013 |
| DATE OF JUDGMENT | 20 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 234 |
| JUDGMENT APPEALED FROM | DPP v Harris (Unreported, County Court of Victoria, Judge Douglas, 22 April 2013) |
---
CRIMINAL LAW — Sentencing — Young offender — Sentence of three years and four months’ imprisonment imposed on plea of guilty to one charge of aggravated burglary, one charge of common assault, one charge of recklessly causing injury, one charge of contravention of Family Violence Order and one charge of unlawful assault — Whether judge erred in concluding that nature and gravity of offending precluded a Youth Justice Centre Order — Whether sentence manifestly excessive — Application for leave to appeal granted but appeal dismissed — No point of principle.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Mr Greg Thomas Barrister & Solicitor |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
In this matter I have had the advantage of reading in draft the reasons for judgment of Coghlan JA. I agree with his Honour for the reasons he gives that there should be leave to appeal on Ground 2 but that the appeal should be dismissed.
COGHLAN JA:
On 11 April 2013 the applicant pleaded guilty to the charges set out in the table below and on 22 April 2013 he was sentenced as set out accordingly.
charge on indictment offence maximum sentence Cumulation
1 Aggravated Burglary [Crimes Act 1958 (Vic) s 77] 25 Years [Crimes Act 1958 (Vic) s 77(2)] 2 and a half years Base 2 Common assault (Common Law) 5 years [Crimes Act 1958 (Vic) s 320] 10 months 4 months 3 Recklessly causing injury [Crimes Act 1958 (Vic) s 18] 5 years [Crimes Act 1958 (Vic) s 18] 6 months 2 months Summary Charge 1 Contravention of a Family Violence Intervention Order [Family Violence Protection Act 2008 (Vic) s 123] 2 years [Family Violence Protection Act 2008 (Vic) s 123] 6 months 3 months Summary Charge 4
Unlawful Assault [Summary Offences Act 1966 (Vic) s 23] 3 months [Summary Offences Act 1966 (Vic) s 23] 1 month 1 month Total Effective Sentence: Three years and four months Non-Parole Period: 20 months Pre-sentence Detention Declared: 167 days 6AAA Statement: 4 and a half years with non-parole period of 2 and a half years Other orders:
Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958
By Notice of Appeal dated 23 May 2013 the applicant seeks leave to appeal against sentence.
The proposed grounds of appeal are:
The learned sentencing judge erred at law by determining that the offending was too serious for a youth justice centre order to be within range.
The sentence is manifestly excessive in all the circumstances, as it is disproportionate to the offences, and is therefore in error.
The circumstances of the offending were set out in the Registrar’s Neutral Summary:
The applicant and Tiana Hooke (“Hooke”) had been in a relationship since July 2012. On 22 October, the applicant gave a phone to the complainant. On 23 October, the complainant took out an interim intervention order on the applicant. This was served on the applicant on 26 October 2012.
On 6 November 2012 at about 7.35am the applicant went to the Salvation Army residential unit where Hooke was residing. The applicant knocked on the door, which was answered by a youth worker Nash Chinema (“Chinema”). Chinema recognised the applicant and refused him entry because of the intervention order. Chinema closed and locked the front door and went to the office to ring police.
The applicant kicked the front door open and went to the [sic] Hooke’s room (Charge 1 – aggravated burglary). Hooke was asleep. The applicant went over to her and punched her twice in the head, and demanded the phone and charger. The applicant grabbed Hooke by her hair, dragged her off the bed, and kicked her in the face a number of times while she was on the floor (Charge 2 – common assault).
Hooke attempted to run away. The applicant then turned and ran towards Rebeka Pavolovic [sic] (“Pavlovic”) a carer who had entered the room. The applicant pushed Pavlovic against the wall and said ‘I’ll get you next’ before pushing past her and going out the front door (Summary Charge 4 – Unlawful Assault).
Chinema approached the applicant as he walked out the front door and asked him what he was doing. The applicant was abusive and came back towards the front door. Chinema held the door closed to prevent the applicant getting back inside, the applicant pulled the door open and charged at Chinema who defended himself by kicking the applicant twice in the chest. The applicant then left the premises. Chinema suffered bruising to his arms, a cut on his right forearm and thumb as a result of the applicant’s charge (Charge 3 – recklessly causing injury).
Later that morning the applicant rang the office phone of the residential unit and left an abusive and threatening message, directed at the complainant (Summary Charge 1 – breach of intervention order, this charge also relates to the applicant’s earlier attendance at the premises).
Hooke suffered a split left ear, two black eyes, a cut on her eyelid, bruised hands and arms, two lumps and a cut to her head and a swelling to her left knee.
Prior to making a number of comments in the sentencing remarks relating to the seriousness of the offending, the learned sentencing judge engaged in the following discussion with the prosecutor at the plea hearing:
COUNSEL: So, Your Honour, in my submission a term of immediate custodial disposition is warranted.
HER HONOUR: Well, I don't think that's in issue.
COUNSEL: Yes.
HER HONOUR: It's whether it's adult prison, where he currently is, or whether it's the youth system. That's what I've got to decide.
COUNSEL: And I don't submit that a Youth Justice Centre disposition is outside the range if Your Honour were minded to have an assessment.
HER HONOUR: Well, quite frankly I think it is. I think, given the prior criminal history and the offending, having read in recent times the recent Court of Appeal decisions and the current sentencing practices, I consider it appropriate to sentence him to a term of adult prison to be served immediately.
After that exchange no further submissions were made on behalf of the applicant, but the prosecutor might well have been taken to be addressing the court in reply and it was not, therefore, appropriate to do so.
Importantly her Honour had not ordered that the applicant be assessed for his suitability to serve a sentence in a Youth Justice Centre and she could not have ordered such a sentence without having done so.[1]
Ground 1 – The learned sentencing judge erred at law by determining that the offending was too serious for a youth justice centre order to be within range
[1]Sentencing Act 1991, s 32.
It had been submitted on behalf of the applicant on the plea that the appropriate disposition in this case was for the applicant to be detained in a Youth Justice Centre. The prosecutor accepted that such a sentence was within the range.
It was submitted in the written case and in argument that because of the principles set out in R v Mills[2] such a sentence should have been regarded as within range and appropriate.
[2](1998) VR 4 VR 235.
It was submitted that on the evidence the applicant was particularly vulnerable and that form of detention would fasten his rehabilitation.
The question of whether a court may impose a sentence to be served in a Youth Justice Centre[3] is governed by s 32 of the Sentencing Act 1991.
[3]Reference to Youth Residential Orders has been omitted.
32 Youth justice centre or youth residential centre order
(1)Subject to subsections (2A) and (2B), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and—
(a)it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b)it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
(2)In determining whether to make a youth justice centre order or a youth residential order, a court must have regard to—
(a) the nature of the offence; and
(b) the age, character and past history of the young offender.
…
(3)The maximum period for which a court may direct that a young offender be detained in a youth justice centre or youth residential centre is—
(a) if the court is the Magistrates' Court—2 years; and
(b)if the court is the County Court or the Supreme Court—3 years.
Her Honour was therefore obliged to consider the applicant’s prospects of rehabilitation and his impressionability, his immaturity or the likelihood of him being subject to undesirable influences.
She was, however, obliged to also have regard to both the nature of the offending and the age, character and past history of the young offender.
The question of vulnerability was discussed on the plea and it was referred to in the evidence.
In her report dated 21 March 2013 (Exhibit H1), psychologist Gina Cidoni reported that:
He is a severely disadvantaged young man who will require care and understanding for some time in view of his presentation. The writer has concerns about his detainment in adult custody in view of his vulnerable state.
Her Honour made specific reference to that finding at paragraph 42 of her reasons, having already stated previously to that paragraph:[4]
Further, I also take into account that your psychological conditions at the time of the offending, as well as now, in addition to your youthfulness, means that the sentence imposed will weigh more heavily on you than it would a person of normal intellect, normal health, and an older person. Your youthfulness is also relevant, as you are more vulnerable than an adult in prison and you have not served a term of adult imprisonment before you were remanded.
[4]DPP v Harris (Unreported, County Court of Victoria, Judge Douglas, 22 April 2013) (‘Sentencing remarks’), [40].
Her Honour was aware of the importance of rehabilitation particularly having regard to the youth of the applicant and her reasons are replete with reference to that proposition.[5]
[5]See sentencing remarks, [30]-[32], [46] and [49].
Her Honour said:[6]
Currently, you are in the youth section of Port Phillip Prison and undergoing a rehabilitation program run by Ms Ann Hooker. Currently, in the youth section, you are undertaking three programs a week. There is an opportunity for you to do five programs. You have completed a parenting course, as you have a young child with whom you have had no contact up until now. You have also completed a course with youth drugs and anger and are involved in
a not for profit t-shirt program. You are enrolled in VCAL, which is furthering your education, working towards completing Year 12.
[6]Ibid [32].
On the evidence it is only possible to make guarded findings about rehabilitation. On the other hand, her Honour found that the offending was serious as it plainly was.[7]
[7]Ibid [13].
Her Honour set out the applicant’s prior offending in detail.[8] Later in her sentencing remarks, she said:[9]
I take into account that you are a youthful offender, being 18 years of age at the time you committed these offences, and will turn 19 in three months. Judges must give more weight to rehabilitation for youthful offenders than adult offenders. The authorities set out that the number and nature of an offender’s prior convictions, in combination with the offences for which he is to be sentenced, may limit the degree of leniency that can be accorded on the basis of youth. You do have a significant criminal history and have breached probation, a Youth Supervision Order and youth parole. However, rehabilitation will almost always remain a consideration of great importance.
[8]Ibid [4]-[10].
[9]Ibid [30].
When regard is had to the detailed and careful sentencing remarks in the context of the statutory regime under which she was obliged to act, I do not accept that her Honour declined to impose a Youth Justice Centre Order based solely upon the question of the seriousness of the offending.
It follows that I do not accept that there was a specific error as submitted.
I would not grant leave to appeal on this ground.
Ground 2 – The sentence is manifestly excessive in all the circumstances, as it is disproportionate to the offences, and is therefore in error.
It seems to be accepted that the learned sentencing judge did have regard to all the matters put in mitigation and the importance of rehabilitation. It is argued however that she attached too much weight to the questions of general deterrence
and just punishment and the imposition of the sentences demonstrates both of these contentions.
Given the nature of the offending and the background of the applicant it is very difficult to see how any of the sentences can be said to be disproportionate. It is also very likely that no appeal would have been brought from a Youth Justice Centre Order of three years.
In the argument on this ground no attempt was made to deal with the serious aspects of the offending except it was said that the offending was not the worst example of this type of offence or at the more serious end of the spectrum. Neither for that matter was the recent history of the applicant dealt with including that he had recently served a sentence in a Youth Justice Centre. He served the whole of that sentence because he breached his youth parole. It is true, as her Honour acknowledged, that rehabilitation is important but it is clear that it does not ‘swamp’ all other sentencing considerations.
The weight to be given to all mitigating features is a question of degree. A sentence will only be manifestly excessive if it is clearly outside the range of sentences available.[10]
[10]R v Abbott (2007) 170 A Crim R 306; R v Boaza [1999] VSCA 126, [42].
The offending in this case was committed in the face of an intervention order. The crime of aggravated burglary is to be taken seriously.[11] The attack on Ms Hooke was a violent one in her own home. The accumulation on that charge was moderate. If a lower sentence might have been imposed on charge 1, both a higher sentence and a greater amount of accumulation would have been open on charge 2. The sentences and amounts of accumulation on charges 3, 4 and 5 were moderate.
[11]Hogarth v The Queen [2012] VSCA 302.
It was open for her Honour to have declined to order the sentence be served in a Youth Justice Centre.
After hearing the oral argument on the application, this Court decided to have the applicant’s suitability for a Youth Justice Centre Order assessed. If a favourable assessment had been received, consideration would then have been given to the question of whether or not leave should be granted on Ground 2.
In any event, a report (Exhibit 1 on the application) was received from the Department of Human Services dated 30 August 2013. The authors of that report considered that the applicant was not suitable and detailed reasons why he was not suitable pursuant to both sub-ss 32(1)(a) and (b) of the Sentencing Act 1991.
For completeness it should be noted that a report was received from Corrections Victoria dated 9 August 2013 which suggests that reasonable steps are being taken within the adult prison system to further the rehabilitation of the applicant.
The sentence then imposed by the sentencing judge cannot be said to be either disproportionate or outside the range.
I would grant leave to appeal on Ground 2 but dismiss the appeal.
DIXON AJA:
I have read, in draft, the reasons of Coghlan JA. I agree that leave to appeal on Ground 2 should be granted but the appeal should be dismissed.
- - -
0
2
0