Andrew Leime v The Queen
[2018] VSCA 13
•2 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0209
| ANDREW LEIME | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | No Oral Hearing |
| DATE OF JUDGMENT: | 2 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 13 |
| JUDGMENT APPEALED FROM: | DPP v Leime (Unreported, County Court of Victoria, Judge Lacava, 5 September 2017) |
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 – Sentence – Application for leave to appeal – Applicant pleaded guilty to five charges of aggravated burglary, four charges of theft, two charges of attempted armed robbery, one charge of false imprisonment, one charge of resist emergency worker on duty and one charge of unlawful assault – Crime spree across five residences at night – Applicant sentenced to five years’ imprisonment with a non-parole period of two years and six months – Whether sentence manifestly excessive – Whether applicant’s youth and traumatic refugee background adequately taken into account as mitigation – No reasonable prospect of lesser sentence being imposed if leave to appeal granted – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
On 17 August 2017, the applicant pleaded guilty to a series of charges that arose out of events that took place in September 2016. Those offences included five charges of aggravated burglary, four charges of theft, two charges of attempted armed robbery, and one charge each of false imprisonment, knowingly resist an emergency worker on duty, and unlawful assault.
On 5 September 2017, the applicant was sentenced as follows:
Charge on Indictment G12558526 Offence Maximum Sentence Cumulation 1 Aggravated Burglary
[s 77(1) of Crimes Act 1958]25 years’ imprisonment 3 years’ imprisonment 6 months 2 Theft
[s 74(1) of Crimes Act 1958]10 years’ imprisonment 6 months’ imprisonment - 3 Aggravated Burglary
[s 77(1) of Crimes Act 1958]25 years’ imprisonment 3 years’ imprisonment 6 months 4 Theft
[s 74(1) of Crimes Act 1958]10 years’ imprisonment 3 months’ imprisonment - 5 Aggravated Burglary
[s 77(1) of Crimes Act 1958]25 years’ imprisonment 3 years’ imprisonment Base 6 Attempted Armed Robbery
[s 75A(1) of Crimes Act 1958]20 years’ imprisonment 12 months’ imprisonment - 7 Attempted Armed Robbery
[ss 321M and 75A(1) of Crimes Act 1958]20 years’ imprisonment 12 months’ imprisonment - 8 False Imprisonment
[Common Law]10 years’ imprisonment 12 months’ imprisonment - 9 Aggravated Burglary
[s 77(1) of Crimes Act 1958]25 years’ imprisonment 3 years’ imprisonment 6 months 10 Theft
[s 74(1) of Crimes Act 1958]10 years’ imprisonment 3 months’ imprisonment - 11 Theft
[s 74(1) of Crimes Act 1958]10 years’ imprisonment 7 days’ imprisonment - 12 Aggravated Burglary
[s 77(1) of Crimes Act 1958]25 years’ imprisonment 3 years’ imprisonment 6 months 13 Resist Emergency Worker on Duty
[s 31(1)(b) of Crimes Act 1958]5 years’ imprisonment 3 months’ imprisonment -
Uplifted Summary Offences Offence Maximum Sentence Cumulation 18 Unlawful Assault
[s 23 of Summary Offences Act 1966]
15 penalty units or 3 months’ imprisonment 1 month imprisonment - Total Effective Sentence
5 years’ imprisonment
Non-Parole Period Fixed
2 years and 6 months’ imprisonment
Pre-Sentence Detention
354 days
Ancillary Orders
Forensic Sample, Forfeiture and Disposal orders made
s 6AAA Statement
7 years and 6 months’ imprisonment, with a non-parole period of 5 years.
The applicant now seeks leave to appeal against sentence.
Ground of appeal
The applicant relies on the following proposed ground of appeal:
The individual sentences imposed, orders for cumulation, total effective sentence and non-parole period, are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
Particulars
(a) The sentence imposed is excessive in that the learned sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant’s case, including the following:-
i. Youth — recently turned 18 at the time of commission of offence and 18 at the time of plea (dob: 28 August 1998).
ii. Early plea of guilty and its utilitarian benefit and indication of remorse.
iii. Confined period of offending and overlap between some charges, justifying concurrency.
iv. First appearance in the adult court jurisdiction and first time in adult custody.
v. Significant period on remand.
vi. Personal circumstances of the applicant, including a history of exposure to extreme violence, instability, hardship and displacement (within a refugee context).
vii. The potential of prison being more onerous on the applicant because of the range of developmental trauma related symptoms he presented with and his vulnerability.
Summary of relevant facts
On 16 September 2016, between approximately 2.30 am and 5.15 am, the applicant broke into five separate homes in close proximity to each other, near Lyndhurst.
At about 2.30 am, the applicant forced his way into a house at Aquanita Close, by smashing a sliding door with a pot plant. The occupants of the house included a seven year old child, who was asleep at the time. The father made a call to police from his bedroom, while the applicant proceeded through the house, upending furniture and looking for items of value. He stole two laptop computers and a backpack. As police were arriving, he left the premises through the smashed rear sliding door. He jumped over a fence and crossed through two neighbouring properties. The stolen goods were later recovered from those properties. The events that took place at Aquanita Close gave rise to charges 1 and 2, namely aggravated burglary and theft.
At about 3.00 am, the applicant broke into a house at Wodalla Place by breaking the screen wire and forcing open the bathroom window. The residents of the house included an 88 year old grandmother. The applicant entered one of the bedrooms and stole $170, $110 in Fijian currency and a Fijian Airlines ticket. Although one of the adults present inside the house heard the applicant rummaging about, he assumed that it was his son. Accordingly, the offending was not discovered until later that morning. The events that occurred at Wodalla Place gave rise to charges 3 and 4, namely aggravated burglary and theft.
At about 3.30 am, the applicant entered a house at Hugden Close, while wielding a cricket bat above his head. He entered via a back door which had been left open to enable a dog to come and go. The house was occupied by LH, CH, YW and DP. The applicant first entered a bedroom occupied by LH and DP. He commenced hitting DP with the cricket bat in the area of his legs and hips. He said ‘give me the money’ and ‘give me the money and don’t make me hit her’ (referring to LH).
Upon discovering that DP and LH had only $5 in cash, the applicant crossed to the bedroom where CH and YW were sleeping. He woke them up by banging on the door. He then returned to the other bedroom, where he grabbed LH by her top and dragged her across the hallway. LH estimated that the applicant maintained a grip on her top for about a minute, and would not let her go. When the applicant finally released LH, she ran back to her bedroom, locked the door and called police.
The applicant then again went to the bedroom where CH and YW were sleeping. He ordered CH to leave the room, which he did. From outside the door, CH heard the applicant ask YW to take her pants off. He told her that he was going to take her with him and show her off to his ‘boys’.
The police arrived soon after. The applicant opened the bedroom window and kicked out the flyscreen. He made his way to the roof of the premises. Police saw him on the roof and yelled, ‘police, don’t move’. The applicant then jumped onto the roof of a nearby property, before running away. The events at Hugden Close gave rise to charges 5, 6, 7 and 8 on the indictment, namely aggravated burglary, attempted armed robbery (x 2) and false imprisonment.
At about 5.05 am, the applicant entered a house in Castawellan Way via an unlocked back door. The house was occupied by a young family, including two children aged two and four. The mother woke to the sound of the applicant in the house, saw him in the bedroom doorway, and called police. The applicant left shortly after with a Samsung Galaxy mobile phone. The events at Castawellan Way gave rise to charges 9 and 10 on the indictment, namely aggravated burglary and theft.
At about 5.15 am, the applicant approached a house in Viewline Way. The house was occupied by a mother and her two young daughters. The mother was awake at the time, and saw the applicant approach the rear of her house, wearing gardening gloves. She ran to the kitchen and picked up a meat cleaver, yelling to her daughters to call the police. The applicant then entered the house through the rear door, after having pushed a panel of glass out of its frame. He approached the mother with the intact glass panel, said ‘fuck you’ and threw it to the ground where it smashed at her feet. He then exited through the back door. The events at Viewline Way gave rise to charges 11 and 12 on the indictment, namely aggravated burglary and theft, as well as the uplifted unlawful assault charge.
By this stage, five police units had cordoned off the area, and the Air Wing and Canine Units were in attendance. The applicant was seen jumping over a series of fences. At one stage, he ran into police and was told to stop. He instead ran, jumping a further three fences, until he was intercepted by several police units, including the Canine Unit.
When the applicant was finally arrested, he continually resisted being handcuffed. He was aggressive and verbally abusive to the officers and attempted to spit blood on them. It took four police officers to carry him from the scene of the arrest to a police vehicle.
Sentencing remarks
The sentencing judge noted that between about 2.30 am and 5.15 am, on the morning of 16 September 2016, the applicant had entered five separate residences in Lyndhurst. On three occasions, he had broken into the houses.
His Honour described this crime spree as ‘very serious’, as it plainly was. He admitted into evidence several Victim Impact Statements. Not surprisingly, those who were present in their homes were terrified. Some had suffered from post-traumatic stress disorder thereafter.
The applicant had pleaded guilty at an early stage, and the sentencing judge took that into account. His Honour went on to say that he treated the pleas of guilty as an indication of genuine remorse. He noted however, that the applicant had a number of prior convictions for similar offending, arising from five previous appearances in the Children’s Court.
The sentencing judge noted that the applicant was young, and fell to be sentenced as a youthful offender. He was born in August 1998 and was therefore only 18 when he committed these offences.
A psychological report was tendered on the plea. It set out a number of background matters that were said to be relevant by way of mitigation.
Counsel who appeared on the plea submitted that, although a custodial term was inevitable, the applicant should be assessed to have any period of detention served in a youth justice centre. Alternatively, it was submitted that his Honour should impose a relatively low non-parole period, so that the time to be served in prison might be relatively short.
In dealing with the applicant’s personal circumstances, the judge noted that he was one of seven children. He had been born in Kenya, of Sudanese parents. He had spent his early childhood with his parents and siblings in a Kenyan refugee camp. He had come to this country as a refugee in 2007, aged nine. The entire family had become Australian citizens in 2012.
The judge outlined something of the applicant’s recollections of the refugee camp in Kenya. It was said to have been a harsh environment. The applicant had witnessed acts of violence within the camp, including having seen someone beheaded when he was aged only six.
The applicant had been a reasonable student at school, where he was good at sport and had friends. However, he had become involved in fights when he reacted to taunting of a racist kind.
In 2012, the applicant began to encounter disciplinary problems. He started to drink heavily and use cannabis. His father had dealt with him harshly in an effort to discipline him, but the applicant had reacted by spending time away from the family home, and his school attendance dropped off. He began to keep company of other youths, who drank, abused drugs and were involved in crime.
In 2014, the applicant enrolled for Year 10, but his alcohol and cannabis use continued. He served time in a youth justice centre for multiple offences. Following his release from detention, he continued to offend and again used cannabis as well as methylamphetamine (ice). Effectively, he lived on the streets.
In 2016, the family moved to Pakenham. The applicant dropped out of school entirely, and continued to abuse drugs and alcohol. For a short period, he enrolled in a building and construction course, but dropped out due to his substance abuse.
The judge noted that the applicant had been held on remand in the adult prison system since his arrest, a period approaching one year. Although he initially had thoughts of suicide and was subject to racial taunts, he appeared to have coped reasonably well within that system.
The psychological report noted that, the applicant had ‘long-standing problems with affect regulation and managing aggression’. He was not, however, suffering from any mental illness.
The applicant had expressed remorse for his offending, and shown appropriate insight into what he had done. However, the psychological report observed that there was a reasonable chance that he would reoffend, absent custody or very strict supervision.
Having given careful consideration to the submission that the applicant should be detained in a youth justice centre, his Honour rejected that contention on the basis that it would not properly address deterrence, both general and specific. Nor would it pay proper regard to the protection of the public.
The sentencing judge then imposed a total effective sentence of five years’ imprisonment with a non-parole period of two years and six months. He correctly noted that this was a lesser non-parole period than might otherwise have been warranted had it not been for the applicant’s youth.
Submissions before this Court
The applicant contended that the sentence, in all of its components, was excessive in that it failed to give adequate weight to the mitigating factors that were present. In particular, the sentence imposed did not adequately reflect the importance of the applicant’s youth, as required by the decision of this Court in R v Mills.[1] There, it was said that the youth of an offender should be a primary consideration for a sentencing Court, where that matter properly arose.
[1](2011) 32 VR 641 (‘Mills’).
In response, the Crown noted that the gist of the proposed ground of appeal was manifest excess. This required the applicant to demonstrate that the sentence was wholly outside the range of sentencing options available to the judge, in the circumstances of this case.
The applicant received a sentence of three years’ imprisonment on each individual aggravated burglary. The Crown submitted that this being only 12 per cent of the maximum penalty, the sentence should be seen as merciful, rather than excessive.
The Crown also drew attention to the applicant’s prior criminal history. He had appeared regularly in Court since 2014, and had been convicted of a number of highly relevant offences. He had been sentenced for armed robbery and various other offences involving violence, including intentionally causing serious injury and recklessly causing injury. He had been given a number of chances, but had not taken advantage of lenient treatment. His own psychological report suggested that there was a reasonable prospect that he would re-offend if he were not kept in custody, or under very strict supervision.
As regards Mills, the Crown submitted that the case did not stand for the proposition that youth was the primary sentencing consideration in all cases. The non-parole period, fixed at 50 per cent of the head sentence, was clearly designed to promote the applicant’s rehabilitation through conditional freedom. It thereby gave effect to his youth, as a mitigating factor.
Conclusion
Despite the applicant’s traumatic history, his dysfunctional background, and his youth, the gravity of his offending was of a high order. That made it entirely reasonable to fix a head sentence of five years’ imprisonment for this spate of offences. As indicated, the victims of his various aggravated burglaries were traumatised by the experience. They were entitled to feel safe in their own homes, at night, without being subjected to a terrifying ordeal.
I can see nothing wrong with the individual sentences imposed, or the orders for cumulation. The non-parole period of two years and six months was, if anything, moderate. The applicant’s previous criminal record, and his guarded prospects of rehabilitation, meant that the protection of the community had to play a significant role in any sentence that was to be imposed upon him.
I can see no reasonable prospect, if leave to appeal were to be granted, of a lesser sentence being imposed upon the applicant. Accordingly, it must follow that leave to appeal must be refused.
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