Balshaw v The Queen
[2021] VSCA 78
•29 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0004
| JACKSON BALSHAW | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 March 2021 |
| DATE OF ORDERS: | 26 March 2021 |
| DATE OF REASONS: | 29 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 78 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1837 (Judge Gwynn) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to seven charges including burglary, aggravated burglary, common assault and theft – Sentenced to 5 years’ imprisonment with 2 years and 10 months non-parole – Leave to appeal granted on the papers – Whether judge erred in sentencing appellant to adult jail – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 3 years and 10 months’ detention in a Youth Justice Centre.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Stephen Adrianakis & Associates |
| For the Respondent | Mr P L Bourke QC | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA:
The appellant pleaded guilty, in the County Court, to two charges of aggravated burglary, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft and one charge of common assault. Following a plea presented on his behalf, he was sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 2 years and 10 months.
That sentence was constituted as follows:
Charge Offence Maximum Penalty Sentence Cumulation 1 Burglary 10 years 1 year 3 months 2
Aggravated burglary
25 years
4 years 8 months
Base
3
Common assault
5 years
4 months
4
Theft
10 years
1 year
5
Aggravated burglary
25 years
3 years 8 months
3 months
6
Theft
10 years
1 year
7
Attempted aggravated burglary
20 years
2 years 6 months
1 month
Total Effective Sentence 5 years Non-Parole Period Fixed 2 years 10 months Pre-Sentence Detention 196 days 6AAA statement 5 years 10 months, with a non-parole period of 4 years 6 months.
The appellant sought leave to appeal the sentence on three grounds. He was granted leave on grounds 2 and 3, but not on ground 1. Grounds 2 and 3 are as follows:
Ground 2: There is an error in the sentence first imposed on each charge arising from the applicant having been sentenced to adult gaol.
Ground 3: There is an error in the sentence first imposed on charge 2 arising from the imposition of a sentence that was manifestly too long.
At the conclusion of oral submissions, we determined that the appeal should be allowed on both grounds, and that the appellant should be re-sentenced to a total effective term of 3 years and 10 months’ detention in a Youth Justice Centre. The following are our reasons for that conclusion.
Before doing so, we should acknowledge that the task of sentencing the appellant was by no means straightforward. The judge was required to consider a number of fairly complex issues, not least of which was the application of the principle of parity of sentence between the appellant and his six co-offenders, in a case in which differing considerations applied to the determination of the sentences to be imposed on each of them.
Circumstances of offending
On six separate days between 10 September 2018 and 17 January 2019, a series of house breaking offences were committed in various suburban areas by a group of offenders, of whom the appellant was a member. The offences were committed in the early hours of the morning. The offending was well organised and involved a sophisticated methodology. The primary aim of the offences was to locate and steal cannabis crops that were being cultivated at the premises that were the subject of the offences.
The general methodology adopted by the offenders involved the targeting of cannabis crop houses. Those premises were identified in advance by scouting missions equipped with a forward looking infrared radar (‘FLIR’) device, which was used to detect the temperatures of residences in which cannabis crops were being cultivated. False number plates were affixed to the vehicles involved in the offences. During the housebreaking, a driver would remain with the vehicle which the offenders were using. The other participants would then enter the premises. They were disguised by wearing masks on their faces, and were equipped with crowbars, garden shears and poles that were used to gain entry and to collect any cannabis crop.
The appellant participated in offending that involved two premises on 3 October 2018 and a further two premises on 17 January 2019. He was also detected as being involved with three of the other offenders in a three hour recognisance exercise in the early hours of 20 December 2018 in which they scouted potential targets for further burglaries.
On 3 October 2018, at 2:30 am, the appellant, with three co-offenders, broke into an unoccupied residence in Ferndale Road, Sunshine North, by removing a security door and damaging the front door of the premises. Shortly after entering the premises they departed. Subsequently, investigating police located seven cannabis plants in the garage of the premises. That offending constituted charge 1, burglary.
Approximately fifteen minutes later, the appellant, in company with the same co-offenders and another, forced entry into the front door of a house in Meadowbank Drive, Sunshine North, which was two kilometres from the premises in Ferndale Road. At the time he entered the premises, the appellant was carrying garden shears. The prosecution accepted that the appellant did not know that they could be used as an offensive weapon. However, on entry a co-offender, Rhys Abela-Rogers, carried a crowbar with a torch attached to it. The appellant was aware that that implement was available as an offensive weapon. The appellant and his co-offenders were masked and wearing gloves. At the time, the owner of the premises, Linh Nguyen, his partner and two other persons were present in the house. They were in bed asleep. The entry by the appellant into the premises constituted the offending in charge 2, aggravated burglary.
After the appellant and his co-offenders entered the premises, Mr Nguyen heard a noise and got up. He found the offenders inside the house and confronted them. They pushed him away and ordered him to lie on the floor. After he complied with that direction, they searched the house but were unable to locate any cannabis. During that time, Abela-Rogers stood close to Mr Nguyen with the crowbar pointed at his chest. At one stage, the appellant searched through a jacket. Mr Nguyen then walked towards the appellant. As he did so, the appellant faced him, raised his garden shears above his head, and pointed them at Mr Nguyen. That conduct was the basis of charge 3, common assault. Abela-Rogers then used the crowbar to hook Mr Nguyen by the back of his neck and pull him back, before raising the crowbar above his head and poking Nguyen in the chest. The appellant and his co-offenders then quickly departed the premises, taking with them a large television, an Apple iPhone and a purse. The removal of those items constituted the offence in charge 4, theft.
On the late evening of 19 December 2018 and in the early morning of 20 December 2018, the appellant and three of his co-offenders were detected by police conducting a scouting expedition in the Dingley, Noble Park, Springvale South and Deer Park areas looking for further potential targets for burglaries.
The two sets of offending, in which the appellant was involved on 17 January 2019, were committed in company with six co-offenders.
At about 2:55 am on that day, five of the co-offenders forced entry into a house in Thurbro Drive, Keysborough. The appellant and another co-offender had been designated the role of remaining in the two vehicles they were driving. A female was present in the house during the break-in, which constituted charge 5, aggravated burglary. The co-offenders stole cannabis plants from the premises, leaving a trail of leaves down the driveway. That conduct constituted charge 6, theft.
About thirty minutes later, at 3:25 am, the appellant and the six co-offenders, parked their vehicles near premises in Aloomba Street, Chadstone. Those premises had been identified by use of the FLIR device. The offenders, including the appellant, attempted to force entry into the house. As they did so, they were confronted by a large male occupant of the premises. As a result, they left the premises. Subsequently, police investigators located 51 cannabis plants at the property. The attempted forced entry into the premises constituted charge 7 (attempted aggravated burglary).
Having retreated from those premises, the appellant and his co-offenders then drove towards a third house in Ruby Street, Preston with the intention of breaking into it. As they approached the premises, a police divisional van approached. The vehicles containing the appellant and his co-offenders departed in haste, being pursued by the police. All of the offenders successfully escaped, but later on the same day, six of them, including the appellant, were arrested. When interviewed by the police, the appellant gave ‘no comment’ responses to questions asked of him.
The appellant’s disposition after arrest
After his arrest, the appellant was remanded in custody at the Melbourne Magistrates’ Court. Subsequently, on 8 March 2019, he was granted bail. On 1 July 2019, he was arrested for further offending, namely, possession of cannabis and breach of bail, and remanded in custody.
The committal proceeding took place between 5 August and 7 August 2019. After the completion of evidence, it was adjourned for further submissions. On the same date, the appellant’s bail on the present charges was revoked. At that stage, the offence that was the subject of charge 2 was one of aggravated home invasion. On 9 September 2019, the appellant offered to resolve the charges against him on the basis that he would plead guilty to a charge of aggravated burglary for that offence. That offer was not accepted by the prosecution. On 19 November, after the parties had completed their submissions at the adjourned committal hearing, the appellant was committed to stand trial. On the following day, at an initial directions hearing, the defence response noted that the charge of aggravated home invasion (charge 2) was the principal outstanding issue between the parties.
On 5 December 2019, the appellant was convicted and fined in relation to the further unrelated offending in respect of which he had been arrested on 1 July 2019. On the following day, 6 December, he was granted bail at the Melbourne County Court. On 9 December 2019, he was released from gaol on bail and transported to the Salvocare Bendigo Bridge Program that is conducted by the Salvation Army in northern Victoria. The appellant’s participation in that program was made a condition of his bail. He completed the program on 8 February 2020.
On 26 June 2020, the defence filed its response to the prosecution opening and made a further offer to the prosecution to resolve the matter. Following discussions between the parties, the matter was resolved on 15 July. The appellant was arraigned and pleaded guilty on 27 July, and the plea was presented on his behalf on 4 September 2020.
Previous conviction
The appellant was born on 5 May 2000 and at the time of sentence was 20 years of age. He had one set of previous convictions. On 5 April 2018, he was placed on a good behaviour bond for a period of 12 months in relation to charges of possessing amphetamine, exceeding the prescribed concentration of alcohol, stating a false name and a number of driving offences.
The plea
The appellant was the younger of two children of his parents. He has an elder sister. When he was eleven years of age, after the death of his maternal grandmother, his mother became emotionally distant and suffered depression. As a result, she commenced abusing substances, including methamphetamine. In addition, the appellant’s parents grew cannabis during his adolescence to repay his mother’s drug debts. As a consequence, the appellant’s parents separated for a period of time, when he was fifteen years of age. When they did so, his mother disappeared. Approximately three weeks later, the appellant discovered his mother in her motor vehicle while she was making an attempt to kill herself.
After his parents separated, the appellant moved between a home in which his mother then lived and a home in which his father then lived. Subsequently, the appellant’s parents reconciled.
The appellant attended Victoria University Secondary College and then Creekside College in Caroline Springs to Year 9. He then attended the Frank Dando Sports Academy Special School for boys between 2014 and 2016. That academy was designed for boys with normal or better intelligence who had difficulties attending a mainstream education. The appellant did well at the academy. A testimonial provided by the academy’s vice principal stated that he had participated enthusiastically in activities provided by the college.
The appellant left the academy halfway through Year 11. He completed a three month apprenticeship for plumbing, but did not commence that apprenticeship. It was in the period that followed that he became involved in the offending that was the subject of the charges on which he was sentenced.
As mentioned, after the appellant was released on bail on 9 December 2019, he attended the Bendigo Bridge Program that was conducted by Salvocare, completing that program on 8 February 2020. He then commenced employment as a labourer in the stonemason industry, which he maintained until his sentence in December 2020. His employer, Mr Ashley Stevenson, provided a reference, in which he described the appellant as a ‘dedicated, honest, reliable and a valued employee’. Mr Stevenson confirmed that the work was physically demanding, and that the appellant had been required to work between six and seven days each week, for periods of eight to twelve hours per day.
During that period, the appellant had commenced a relationship with Angela Camilleri, who is a personal carer, currently completing a diploma in nursing. They had known each other for some years. In a testimonial, Ms Camilleri stated that the appellant was deeply remorseful for his offending, that he was passionate about his work, and that he was positive about the future. The appellant’s mother, sister and paternal grandfather also provided references, in which they stated that the appellant, since his release on bail, had worked hard, and that he was driven, focused and passionate about his future.
Salvocare provided a report, in the form of a ‘Participant Discharge Summary,’ concerning the appellant’s participation in the Bendigo Bridge Program. It stated that the appellant, on entry into the program, had demonstrated a willingness to increase his self-awareness about his substance abuse issues and the connection that they had with his offending. The appellant had successfully participated in all activities, and on most occasions he had communicated respectfully with staff and other participants. During the program, the appellant had received multiple warnings in relation to behaviour issues, but he demonstrated the ability to reflect on his behaviour and acknowledge where he had erred. At one point, he was placed on a behavioural management plan as a result of disrespectful comments he had made towards others and his conduct towards staff. On review seven days later, it was determined that the appellant had followed the plan and implemented positive changes in his behaviour. The report stated:
Throughout Mr Balshaw’s stay he was observed to engage well in program. Mr Balshaw attended daily groups as well as case Management sessions. Mr Balshaw showed an understanding of how he would potentially prevent a relapse/lapse from occurring by putting into practice the coping strategies he had in place.
The appellant was examined by Mr Simon Candlish, a consultant psychologist, in August 2020, for the purposes of the plea. Having administered relevant psychological tests, Mr Candlish concluded that the appellant did not meet the criteria for any psychological or personality disorder. In the conclusion to his report, Mr Candlish stated:
Mr Balshaw’s lengthy period of time in custody appears to have served as a deterrent. It appears to have reminded Mr Balshaw of the serious consequences associated with offending and the likelihood of returning to prison should he re-offend. He appears to have responded appropriately to prison based on his negative comments about being in custody and his motivation since his release.
…
If Mr Balshaw was sentenced to a period of imprisonment, this might impact on his employment prospects and if this occurred, this might then contribute to [a] sense of pessimism and self-destructive behaviours such as re-associating with negative peers, relapse to substance abuse and possible re-engagement in general offending. Further imprisonment might expose him to further anti-social behaviours and attitudes that are more prevalent within this environment at an age where he is still impressionable and emotionally and socially immature.
Before sentencing the appellant, the judge arranged for him to be assessed by a pre-sentence report in respect of his suitability for a Youth Justice Centre order. In a report dated 29 October 2020, it was noted that the appellant had developed an extensive substance abuse history during his teenage and early adulthood years. It was apparent that the appellant had made genuine efforts to improve his lifestyle, attitudes and behaviour since he was first arrested. The report concluded that the appellant presented with reasonable prospects for rehabilitation as he had demonstrated a significant shift in his attitudes and lifestyle following his arrest. Although he was ‘not perfect’, he had altered most of his negative peer associations, developed a positive insight into his shortcomings, and developed a capacity to identify his areas of strength. The report noted that the appellant was beginning to grasp and appreciate the complexities of substance use. Relevantly, the report stated:
He is certainly immature in general terms and would benefit from age-appropriate substance use counselling and perhaps mentoring. He would be an impressionable young man serving a sentence in an adult gaol and in my view [he] would be more suited to an age-appropriate environment where there is a constant focus on rehabilitation in the context of a case management model.
The report concluded that the appellant met the criteria stipulated in s 32 of the Sentencing Act 1991, namely, that he had reasonable prospects of rehabilitation, and that he was particularly impressionable, immature or likely to be subject to undesirable influences in an adult gaol. Accordingly, he was considered to be a suitable candidate for a Youth Justice Centre order.
Reasons for sentence
In thorough and methodical reasons for sentence,[1] the judge, described the offending, that was the subject of charges 2, 3 and 4, as ‘extremely serious’. Her Honour noted that it was clearly well planned and highly sophisticated, involving the entry of targeted premises by multiple disguised intruders carrying implements to effect the theft and to intimidate the occupants.[2] The judge also expressed the view that the reconnaissance exercise on 19 and 20 December 2018 demonstrated that he was prepared to be involved in further offending and that he had not been deterred in any way by the events of 3 October 2018.[3] Accordingly, her Honour considered that the appellant’s involvement in further offending, after having ‘considerable opportunity for quiet reflection’, increased his moral culpability for that offending.[4]
[1][2020] VCC 1837 (‘Reasons’).
[2]Ibid [23].
[3]Ibid [27].
[4]Ibid [28].
The judge considered that each of the two instances of aggravated burglary were particularly serious, involving violent entry into a residence in the early hours of the morning by multiple offenders wearing disguises and carrying implements. Her Honour observed that the circumstances of that offending would naturally be intimidating and frightening to any residents, and was ‘undoubtedly meant to be’.[5] Accordingly, the judge assessed the gravity of the aggravated burglaries to fall in the ‘mid to high range’ for offences of that type.[6]
[5]Ibid [54].
[6]Ibid [58].
The judge considered that although the appellant had experienced traumatic events during his adolescence, nevertheless, his childhood could not be described as one involving particular deprivation and abuse or disadvantage. Accordingly, her Honour considered that there should not be a reduction of the appellant’s moral culpability for his offending in circumstances in which he had committed the offences while using drugs.[7]
[7]Ibid [68].
The judge noted that the appellant had benefited from his involvement in the Bendigo Bridge Program.[8] However, his further offending after his arrest on the present charges demonstrated that his learnings from the program and from his periods in remand required some reinforcement, and impacted slightly on the assessment of his prospects to rehabilitation.[9] Nevertheless, the judge considered that, in view of the appellant’s considerable family support and the value he had derived from the Bridge Program, he had positive prospects of rehabilitation.[10] The judge also accepted the opinion expressed by Mr Candlish as to the detrimental effects of a term of imprisonment on the appellant’s prospects of rehabilitation.[11]
[8]Ibid [78].
[9]Ibid [79].
[10]Ibid [80].
[11]Ibid [88]–[90].
The judge, having set out the chronology relating to the appellant’s plea of guilty, considered that the plea was one which occurred ‘at a point in advance of the latest stage, [but] certainly after what would be described as an early stage’. Her Honour attached some weight to the timing of the plea, but she considered that the real benefit of the plea arose from its utilitarian value. The judge further recognised that the plea was of particular value because of the disruption to the Court’s operations during the COVID-19 pandemic. In addition, her Honour accepted that the plea was remorseful.[12]
[12]Ibid [93]–[95].
The judge referred to the relevant authorities relating to the importance of prioritising youth as a sentencing consideration in such cases, and stated that the appellant’s youth would be given ‘full weight in the sentencing mix’.[13]
[13]Ibid [104]–[106].
In conclusion, the judge, having had the appellant assessed for detention in a Youth Justice Centre, formed the view that the offending by the appellant, and his role in it, was too serious to be reflected in a Youth Justice Centre order. Her Honour further considered that a sentence of four years in detention would not be sufficient to reflect the overall gravity of the offending, taking into account the relevant mitigating factors.[14]
[14]Ibid [111].
Submissions
Under ground 2, counsel for the appellant submitted that, notwithstanding the seriousness of the offending, it was open to the judge to have imposed a custodial sentence of no more than four years on the appellant. Accordingly, it was submitted, applying the sentencing principle of parsimony, it was not open to the judge to sentence the appellant to a term of imprisonment instead of to a period of detention in a Youth Justice Centre.
Counsel submitted that, in the circumstances of the case, the appellant’s youth was a significant mitigating factor that ought to have been given appropriate weight. The appellant had not previously been sentenced to a term of imprisonment or detention, and he had not previously had any engagement with Youth Justice. Accordingly, his rehabilitation was a particularly relevant sentencing purpose which ought to have been given primacy in the sentencing discretion. It was submitted that this is not a case in which the mitigatory impact of youth was materially reduced by the gravity of the offending. The appellant was socially and emotionally immature and underdeveloped, and he had positive prospects for rehabilitation.
Counsel for the appellant further relied on the fact that the appellant pleaded guilty, which was of significant utilitarian value, and which was accompanied by remorse. The appellant had spent a number of months in an adult jail before he was sentenced, 37 days of which (between 1 July 2019 and 7 August 2019) was required to be taken into account, in mitigation, in accordance with the principles explained in R v Renzella.[15] In addition, the appellant had engaged positively with the Bendigo Bridge Program. Counsel further relied on the evidence of Mr Candlish, that was accepted by the judge, that a term of imprisonment in an adult jail could lead to the appellant engaging in self-destructive behaviours, and which might thereby expose him to further anti-social behaviours and attitudes at a stage at which he was still impressionable and immature. In that respect, it was noted that the sentencing judge accepted that incarceration could impair rather than enhance the appellant’s rehabilitation.[16]
[15][1997] 2 VR 88 (‘Renzella’).
[16]Reasons [104]
In those circumstances, it was submitted that it was not open to the judge to sentence the appellant to a term of imprisonment. Alternatively, under ground 3, it was submitted that the sentence imposed on charge 2 was manifestly excessive in light of the appellant’s youth, his immaturity, his prospects of rehabilitation, his pleas of guilty and his remorse.
In response, counsel for the respondent submitted that, in view of the serious nature of the offending, it was open to the judge to conclude that a custodial sentence of no more than four years would not be an adequate sentence in the circumstances of the case. In particular, counsel noted that the judge found the offending, that constituted charge 2, to be extremely serious, and that her Honour considered that the offending in charges 1, 5 and 7 were also serious, because they were carried out in a methodical and planned manner. It was submitted that the judge’s assessment of the seriousness of the offending was important to her assessment as to the suitability of youth detention as opposed to a term of imprisonment.
Counsel for the respondent noted that the judge accepted the mitigating factors relied on by the appellant, including his youth and the importance of his rehabilitation. On the other hand, it was submitted, the sentencing consideration of parity with the sentences imposed on the appellant’s co-offenders was important. Counsel submitted that the imposition of a period of youth detention of four years on the appellant would have been plainly disparate to the sentences imposed on the co-offenders, and in particular Abela-Rogers. Accordingly, counsel submitted that the judge did not err in imposing a sentence of imprisonment, instead of a period of detention in a Youth Justice Centre.
In response to ground 3, counsel for the respondent again noted that the offending in charge 2 was characterised by the judge to be a particularly serious example of aggravated burglary. In particular, that charge included the knowledge by the appellant that his co-offender had with him an offensive weapon, namely, a crowbar. Accordingly, it was submitted that the sentence of imprisonment of 4 years and 8 months, imposed on the appellant on charge 2, was not manifestly excessive.
Analysis and conclusion
Ground 2 is directed to the form of sentence imposed on the appellant, and ground 3 is directed to the period of sentence. Both grounds are based on the proposition that either the nature of the sentence (ground 2) or the length of the sentence (ground 3) was manifestly excessive.
In order to succeed on such a ground, the appellant must demonstrate that the sentence in question was wholly outside the range of sentencing options available to the sentencing judge.[17] That is, the sentence, that is the subject of the appeal, must be demonstrated to be so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence of the judge.[18]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[18]DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In considering that question, it is clear that the judge was correct in characterising the offending by the appellant, and his co-offenders, as being particularly serious. As her Honour noted, the offending involved careful planning by the appellant and his co-offenders. Suitable targets for the burglaries were selected by use of FLIR equipment. Multiple offenders were involved in each of the burglaries undertaken or attempted by the appellant. For each offence a getaway driver was designated. The vehicles used in the burglaries were fitted with false number plates. The offenders each wore masks and disguises and carried implements with them to use to break into the premises and to remove the cannabis plants from them.
The offenders deliberately selected premises, in which illegal crops of cannabis were being cultivated. While the primary motivation may have been to steal the valuable crops, an additional advantage of such targets was that the owners of the premises were unlikely to report the offending by the appellant and his colleagues to the police. Each of the burglaries, in which the appellant participated, were committed in the early hours of the morning, when it was likely that the occupants of the premises would be asleep inside them. The forced entry into those premises by the appellant and his co-offenders, disguised with masks and carrying implements, was calculated to frighten and intimidate the occupants so as to dissuade them from offering any resistance. In that respect, as the judge found, the circumstances of the aggravated burglary that was the subject of charge 2 were particularly serious.
In those circumstances, the judge was justified, and correct, in characterising the offending by the appellant and his co-offenders as being particularly serious. In the absence of mitigating circumstances, such offending would quite properly attract stern sentences of the kind imposed by the judge on the appellant.
However, the appellant did have available, and was entitled to rely on, important mitigating circumstances.
First, the guilty pleas by the appellant were entitled to be accorded significant weight in a case such as this. As the judge found, they were of particular utilitarian value, in that they spared the victims of the offending the necessity to attend Court and to give evidence. The utilitarian value of the pleas was enhanced by the fact that they were made during the COVID-19 pandemic, while the operations of the courts were significantly disrupted. It is also relevant that the judge recognised the appellant’s plea was accompanied by remorse.
The judge found that although the appellant’s guilty pleas did not occur at an early stage in the proceeding, nevertheless they were made at a point in advance of the latest stage of the proceeding.[19] It would seem, from our recitation of the chronology of events that occurred after the appellant’s arrest, that the charges, to which the appellant offered to plead guilty at the conclusion of the first stage of the committal proceeding, were in effect the same charges to which he ultimately pleaded guilty.
[19]Reasons [93].
The appellant’s youth and immaturity were, in the circumstances of this case, considerations of particular importance as mitigating factors.
The principles relating to the relevance of an offender’s youth as a mitigating circumstance have been well established. In R v Mills,[20] Batt JA (with whom Phillips CJ and Charles JA agreed) expressed the principles in the following terms:
(i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.).[21]
[20][1998] 4 VR 235 (‘Mills’).
[21]Ibid 241.
The particular weight to be accorded to the youth of an offender must depend on the circumstances of the case. In that respect, it is recognised that as the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth.[22] Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence be given sufficient weight.[23]
[22]Azzopardi v The Queen (2011) 35 VR 43, 57 [44]; [2011] VSCA 372 (Redlich JA); DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272, 289 [56]; [2017] VSCA 157 (Warren CJ, Weinberg and Kaye JJA).
[23]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P); [2004] VSCA 154.
In the present case, certainly, the type of offending committed by the appellant is often the province of youthful offenders. In addition, the offending was, as we have mentioned, particularly serious. On the other hand, the appellant had successfully participated in rehabilitation therapy provided by the Bendigo Bridge Centre. Having done so, he had reconciled with his family, and he had obtained and maintained gainful employment. Thus, at the time of sentence he was substantially on the road to reform and rehabilitation. In accordance with the principles outlined by Batt JA in Mills, in view of his youth, immaturity and lack of significant previous convictions, it was important that the appellant not be sent to an adult prison unless that disposition could not be avoided.
In that respect, the evidence of Mr Candlish that the appellant is impressionable and emotionally and socially immature, was of particular importance. Mr Candlish expressed the view, which was accepted by the judge, that a term of imprisonment might be detrimental to the appellant, because it might expose him to further anti-social behaviours and attitudes while he is still impressionable and socially immature. In that way a term of imprisonment, as distinct from a period of detention in a Youth Justice Centre, might be counterproductive to the capacity of the sentence to act as a specific deterrent on the appellant.
The circumstances in which the appellant came to be involved in the offending were relevant to the exercise of the sentencing discretion. The appellant had only one limited previous set of convictions. His mother gave evidence on the plea, which was accepted by the judge, that he had commenced using drugs at about the age of fifteen years as a coping mechanism to deal with the family stresses that had occurred. Those stresses had arisen in circumstances in which the appellant’s mother was severely depressed and had resorted to use of drugs, which culminated in her attempt to commit suicide. In the period that followed, the appellant’s home life became quite dislocated. He departed from the family home in August 2018 in the context of arguments there. It was in the period that followed that he became involved in the offending.
Those circumstances were relevant for a number of reasons. The judge did not consider that they were of a kind that would involve the application of the principles, explained by the High Court in Bugmy v The Queen,[24] that might mitigate an offender’s moral culpability. However, they do explain how it came to be that a young man, with a limited previous history, came to be involved in a milieu in which he associated with his co-offenders. The circumstances in which that occurred were not, substantially, of the appellant’s own making. Further, they were relevant to an assessment of the appellant’s prospects of rehabilitation. It appears that the appellant has reconciled with his mother and sister, and he has a good relationship with them. As mentioned, at the time of the sentence he had been involved in gainful employment for almost twelve months.
[24](2013) 249 CLR 571; [2013] HCA 37.
A further mitigating circumstance was that, at the time of sentence, the appellant had spent some 213 days in an adult prison as a young and immature offender. Some part of that time — reckoned to be 37 days — did not qualify as pre-sentence detention in the present case, and accordingly was to be taken into account in mitigation in accordance with the principles discussed in Renzella.[25]
[25][1997] 2 VR 88, 96–7 (Winneke P, Charles and Callaway JJA).
Taking those mitigating circumstances into account, and notwithstanding the particular seriousness of the offending engaged in by the appellant, we concluded that the appeal should be allowed on grounds 2 and 3.
In particular, we accepted the submission on behalf of the appellant, under ground 2, that it was open to the judge to conclude that a custodial sentence of no more than four years would have been sufficient to vindicate the sentencing purposes of general deterrence, denunciation and specific deterrence. Accordingly, we were persuaded that the judge was in error in considering that such a period was not sufficient, so that it was necessary to impose a term of imprisonment to be served in an adult jail.[26]
[26]Reasons [111].
Further, on ground 3, we concluded that, in view of the mitigating circumstances we have discussed, the sentence of four years and eight months’ imprisonment, imposed on charge 2, was in all the circumstances manifestly excessive.
In advance of the hearing of the appeal, it had been arranged for a pre-sentence report to be prepared pursuant to s 8A of the Sentencing Act, in the event that we should conclude, as we have, that the appeal should be allowed. The report, that has been so provided by the Youth Justice section of the Department of Justice and Community Safety, concluded that the appellant meets the criteria stipulated in s 32 of the Sentencing Act and that therefore he remained a suitable candidate for a Youth Justice Centre order.
In those circumstances, we made orders that the appeal should be allowed, and that the sentences imposed on the appellant in the County Court should be set aside. In their place, we resentenced the appellant to the following periods of detention in a Youth Justice Centre:
Charge 1 — 12 months
Charge 2 — 3 years and 6 months
Charge 3 — 4 months
Charge 4 — 12 months
Charge 5 — 2 years
Charge 6 — 9 months
Charge 7 — 2 years
We directed that three months of the sentence imposed on charge 5, and one month of the sentence imposed on charge 7, be served cumulatively on the sentence imposed on charge 2 and on each other. Accordingly the total effective sentence imposed on the appellant was 3 years and 10 months’ detention in a Youth Justice Centre. It was declared that the period of 324 days, not including the date of re-sentence, be reckoned as having been served under that sentence.
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