Bower v The King
[2024] VSCA 317
•16 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0152 |
| ETHAN BOWER | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 16 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 317 |
| JUDGMENT APPEALED FROM: | DPP v Bower [2024] VCC 1095 (Judge Parrish) |
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APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of armed robbery, two summary charges – Applicant 18 years old at time of offending, 19 years old at time of sentence – Total effective sentence 3 years 2 months, non‑parole period 2 years 2 months – Manifest excess – Young offender – Whether wrong type of sentence – Whether judge erred by sentencing applicant to adult prison, not making Youth Justice Centre order – No error – Serious offence, relevant history of offending, guarded prospects of rehabilitation, assessed as unsuitable for Youth Justice Centre order – Sentence well open to judge – Leave to appeal refused.
Sentencing Act 1991, s 32.
Dinsdale v The Queen (2000) 202 CLR 321; Clarkson v The Queen (2011) 32 VR 361; DPP v Anderson (2013) 228 A Crim R 128; Scannell v The Queen [2014] VSCA 330; Moresco v The Queen [2018] VSCA 336; Franco v Director of Public Prosecutions (WA) (2022) 303 A Crim R 142; Simms v Geeson [2020] WASC 381, considered.
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| Counsel | |||
| Applicant: | Ms H Anderson | ||
| Respondent: | Mr J Sivaratnam | ||
Solicitors | |||
| Applicant: | Greg Thomas Barrister & Solicitor | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
The offending
The plea hearing
Reasons for Sentence
Submissions on the application
Proposed ground 1
Proposed ground 2
Relevant legal principles
The wrong type of sentence
Youth Justice Centre Orders
Consideration
MACAULAY JA:
On 24 July 2024, the applicant, then aged 19 years and 7 months, was sentenced in the County Court to a total effective sentence of 3 years and 2 months’ imprisonment with a non‑parole period of 2 years and 2 months. He was sentenced having pleaded guilty to one indictable charge, armed robbery,[1] and two summary charges, possessing a prohibited weapon[2] and committing an indictable offence on bail.[3] The particulars of the individual sentences and amounts of cumulation are set out in the table below:
[1]Contrary to Crimes Act 1958, s 75A.
[2]Contrary to Control of Weapons Act 1990, s 5AA.
[3]Contrary to Bail Act 1977, s 30B (now repealed). The two summary charges were transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009 and, by consent, the applicant’s plea on those charges was heard before the sentencing judge at the same time as his plea to the armed robbery charge.
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Armed robbery 25 years or 3,000 penalty units 3 years Base Summary charges 4 Possession of a prohibited weapon 2 years or 240 penalty units 4 months 2 months 5 Commit indictable offence on bail 3 months or 30 penalty units 1 month Nil Total Effective Sentence: 3 years 2 months Non-Parole Period: 2 years 2 months Pre-sentence Detention Declared: 37 days Section 6AAA Statement: 4 years 6 months
The applicant has sought leave to appeal against sentence on the following two proposed grounds:
(1)There is an error in the sentence first imposed on each charge arising from the applicant having been sentenced to adult gaol.
(2)There is an error in the sentence first imposed on summary charge 4 arising from the imposition of a sentence that was manifestly too long and/or of the wrong type.
For the reasons that follow, leave to appeal is refused on both grounds.
The offending
A full description of the offending, which occurred on 31 May 2023, was set out in the reasons of the sentencing judge.[4] However it is sufficient to set out the abbreviated summary provided in the applicant’s written case, with which the respondent took no issue. That summary is as follows:
The applicant was 18 years of age at the time of the offending. The victim was aged 53, and they were known to one another, having attended a security license course together. An unknown co‑offender was also present.
On 31 May 2023, the applicant arranged to meet the victim by text message. This followed the end of the security course. At approximately 8:40 pm, the applicant and the co‑offender entered the victim’s property and the applicant grabbed the victim by his jacket with his left hand, while holding a 30 cm kitchen knife in his right hand.
The applicant demanded the keys to the victim’s car. The victim immediately complied and gave the applicant the keys [charge 1]. The applicant then demanded the victim’s phone. The victim refused to hand this over and tried to pull away from the applicant. The applicant and the victim had a brief altercation.
The co‑offender then struck the victim to the head with a metal pole. This caused a superficial laceration to the victim’s head which caused bleeding and no further medical attention was required.
The victim broke away from the applicant and ran into a bedroom where he hid. The applicant and the co‑offender stole the victim’s vehicle. The applicant was on bail at the time of this offending [summary charge 5].
On 5 June 2023, the applicant was arrested at his home address. A taser was located in a desk drawer during the search of his bedroom [summary charge 4]. The taser looked like a flashlight.
[4]DPP v Bower [2024] VCC 1095, [4]–[17] (Judge Parrish) (‘Reasons’).
The applicant was arrested and interviewed by police on 5 June 2023. He made no comment in answer to questions.
The plea hearing
The plea commenced on 9 February 2024, but was adjourned at the applicant’s request so that he could obtain a neuropsychologist’s report and a report as to his suitability for a Youth Justice Centre order (‘YJC order’).
Section 32(1) of the Sentencing Act 1991 (the ‘Act’) provides that a judge (or magistrate) may make a YJC order when sentencing an offender who is under the age of 21 years at the time of the sentence (ie a ‘young offender’). The court may make a YJC order if a number of preconditions are satisfied, namely that: a sentence involving confinement is justified; the court has received a pre‑sentence report; and the court believes that there are reasonable prospects for the rehabilitation of the young offender or that the young offender is ‘particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison’.[5]
[5]Sentencing Act 1991, s 32(1) (the ‘Act’). The power to make a YJC order is subject to a number of other restrictions which are not presently relevant.
Relevantly to the first of those preconditions, where the offender is being sentenced for armed robbery committed in the company of another (a category 2 offence),[6] pursuant to s 5(2H) of the Act a court must make an order that requires imprisonment or confinement unless certain exceptions apply. If the sentencing court is the County Court, the maximum period for which a court may direct that a young offender be detained in a youth justice centre is four years.[7]
[6]Ibid s 3 (definition of ‘category 2 offence’ para (da)(iii)).
[7]Ibid s 32(3)(b).
The plea resumed on 17 June 2024, at which time the court received a neuropsychological report from Ms Anna McClaren dated 29 March 2024 and a pre‑sentence report dated 14 June 2024 as to the applicant’s suitability for a YJC order. Counsel for the applicant accepted that s 5(2H) of the Act applied and did not seek to rely upon any of the exceptions contained in that provision. It followed, as the judge noted, that there was no dispute that the applicant had to be incarcerated. Thereafter, a significant issue on the plea concerned whether the incarceration should be served in an adult prison or in the youth justice system.
Reasons for Sentence
After outlining the circumstances of the applicant’s offending, the judge turned to the applicant’s criminal record. Prior to the offending on 31 May 2023 the applicant had twice appeared in the Ringwood Children’s Court, first on 23 June 2022 and then on 15 February 2023. The judge listed the offences for which the applicant had been found guilty on each of those occasions, highlighting those offences that were particularly relevant to the offending for which he was being sentenced.
On 15 February 2023 the applicant was found guilty of over 60 charges, and on 23 June 2022 he was found guilty of approximately 20 charges. Relevantly, across the two groups of charges, he was found guilty of numerous charges of burglary, including aggravated burglary; numerous charges of theft (including of motor vehicles) and other dishonesty charges; several charges of possessing or carrying prohibited or controlled weapons, and an imitation firearm; several charges of committing an indictable offence while on bail; and a charge of unlawful assault. On each occasion no convictions were entered. On the first occasion, the Children’s Court placed the applicant on a good behaviour bond. On the second occasion, the Children’s Court sentenced him to a youth supervision order for a period of 18 months commencing 17 February 2023. The offending the subject of this application for leave to appeal occurred a little over three months after the youth supervision order was imposed.
In relation to the current offending, the applicant was placed on adult supervised bail on 6 June 2023. In the later report of his supervised bail it was stated that the applicant attended 19 of 20 scheduled Youth Justice appointments.
The judge observed that on 11 February 2024, the applicant was remanded in custody for further offending alleged to have occurred on 6 February 2024. His remand was served in an adult prison. This was relevant to the question of whether it was inappropriate to impose a sentence of imprisonment in an adult prison for the May 2023 offending.
The judge turned to the applicant’s personal circumstances, which he ascertained from a number of listed documents in addition to his counsel’s written outline of submissions. These included a supervised bail progress report; a report from a psychologist, Ms Christine Harding; a Forensicare mental health summary; an email from the case manager for Youth Justice South East Metropolitan Region; and a psychiatric report from Dr Adam Deacon.
Based upon those documents, the judge outlined the applicant’s personal history. The applicant was born on 10 December 2004. His parents had only briefly known each other and he had no recollection of his father ever having played any role in his life. He recalled first meeting his father, when aged 10. Otherwise, the applicant lived with his mother and two younger half‑siblings, and had negligible contact with his father. He had a good relationship with his mother although it was described more like a friendship. From an early age, he became his mother’s confidante and emotional support and he provided her with some financial support through casual work from about the age of 13. He attended many primary schools and secondary schools due to his mother frequently moving from rental properties. One significant incident in his early primary school life was that he was sexually propositioned by an older man in a toilet when he was on a school excursion. He felt shocked and fearful and remained scared to enter public toilets thereafter.
He truanted in secondary school and reported that he felt misplaced amongst his peers. He completed year 11, and thereafter worked in a sportswear store and an automotive accessory business before completing a security licence course, with the hope to later work in the gymnasium/fitness industry.
The applicant reported being exposed to domestic violence during his childhood, having witnessed his mother being assaulted by a partner. The applicant formed a relationship with his current partner when they were both about 14 and they have remained in that relationship since. He has a history of some drug use, commencing use of cannabis at the age of 13 and developing a significant cannabis dependency. He misused benzodiazepines for a period of time prior to a deliberate overdose in a suicide attempt in August 2021.
The applicant gave Dr Deacon an account of the armed robbery. In substance, the applicant said that his victim had tried to befriend him over the duration of the security licence course, including by offering to buy the applicant a passport and take him to his home country. A week before the offence, the older man had invited the applicant to stay over at his house, pressured him to do so by offering him money, had placed his hand on the applicant’s leg and asked the applicant to sleep with him. The applicant did not accept those overtures. On one occasion during the security course, the man had followed the applicant into the bathroom and stood outside the toilet cubicle that the applicant was using. According to the applicant, this triggered the traumatic memory of the toilet incident from his early primary school years.
These events angered the applicant so that, in company with an unidentified person, he attended the older man’s house with the intention of confronting him. He took the knife, claiming that he did so only because he felt fearful of the older man. Upon seeing the older man he agreed that there was some push and shove and that he produced the knife. He claimed that he did not steal the older man’s car nor participate in the assault which his accomplice perpetrated. He explained that, in committing the offences, he was driven by a belief that no one should stand over him.
Moving from the applicant’s background, the judge summarised the various psychological reports. He noted that Ms Christine Harding considered that the applicant was a naïve young man, small in stature with a low sense of self‑identity. A significant factor in his life was the lack of a positive male role model. She thought that the applicant had attention deficit hyperactivity disorder (‘ADHD’), which may have predisposed him to impulsive decision making and deficits in consequential thinking skills and emotional regulation. With those factors, his young age and lack of age‑appropriate social skill development, Ms Harding thought that the applicant would be particularly susceptible to the influence of older prisoners if placed in custody because of his impressionability, impulsivity and immaturity.
Dr Deacon considered that the applicant’s developmental history had been marked by the absence of his father and exposure to significant domestic violence between his mother and her partners. He recorded the applicant’s account of having experienced the traumatic incident in the toilet whilst at primary school. The applicant’s formal psychiatric history was limited to an episode of depression and associated suicidality in 2021. Dr Deacon thought that the applicant’s offending in May 2023 could be understood to relate to ‘triggered anger stemming from unresolved childhood trauma’. He thought that the applicant was coping reasonably well in custody in the adult prison and had not experienced any decline in mental health whilst remanded.
A neuropsychologist, Ms Anna McLaren, reported on the result of a neuropsychological assessment undertaken at the request of the applicant’s solicitors. She concluded that the applicant’s cognitive profile did not indicate the presence of a neuropsychological condition, although she noted the possibility of underlying ADHD. She thought that some aspects of the applicant’s presentation showed that he was prone to expressing himself through physical means because of his difficulty in expressing himself through verbal means. Nonetheless, his performances in testing indicated adequate reasoning and judgment skills which, in turn, suggested an ability to exercise appropriate judgment and appreciate the wrongfulness of his conduct. She considered that it was unlikely that his placement in either a youth detention facility or adult custody would directly impact his neuropsychological functioning.
The judge summarised the submissions put to him by the applicant’s counsel by way of mitigation of sentence. In light of those submissions, the judge accepted that the applicant had pleaded guilty at the earliest opportunity and that his plea demonstrated that he took some responsibility for his actions and was willing to facilitate the course of justice. However, the judge considered that the applicant had ‘demonstrated little remorse in relation to the subject offending’.
The judge accepted the application of principles drawn from R v Mills[8] and Azzopardi v The Queen,[9] namely that in the case of a youthful offender, rehabilitation is usually far more important than other sentencing considerations. Nevertheless, the judge noted that, as stated in Azzopardi, the weight to be attached to an offender’s youth may be reduced by the degree of criminality of the offences, in which case the objectives of deterrence, denunciation, just punishment and protection of the community may become more prominent. Considering the evidence before the court, the judge took the view that, given the seriousness of the applicant’s offending and his previous similar offending, the usual priority accorded to rehabilitation in the case of youthful offenders had to be ‘slightly diluted’.
[8][1998] 4 VR 235.
[9](2011) 35 VR 43; [2011] VSCA 372.
Finally, the judge considered the submissions made in relation to the applicant’s prospects of rehabilitation. Noting various statements made in some of the reports to which the applicant’s counsel referred, the judge accepted that those matters indicated that the applicant had made some effort to rehabilitate himself. Nevertheless, again bearing in mind his past offending and the nature of the subject offending, the judge considered that the applicant’s prospects of rehabilitation were ‘guarded’.
The judge then came to a question which is central to this application, namely, whether the judge should make a YJC order or a Residential Centre Order, rather than sentence the applicant to a term of imprisonment. After setting out the relevant provisions of s 32 of the Act and noting the relevant preconditions and criteria, the judge then set out the concluding part of the Youth Justice pre‑sentence report authored by Ms Lorina Pambi and Ms Camilla van Dreven:
The purpose of this report is to determine Mr Bower’s suitability for detention in a Youth Justice Centre. In making a recommendation for a Youth Justice Centre Order disposition, section 32 of the Sentencing Act (1991) must be taken into account:
(a)reasonable prospects for rehabilitation
(b)young person is particularly impressionable, immature, or likely to be subject to undesirable influences in adult prison.
In consultation with both community and custodial based authorities from the Youth Justice program, Youth Justice have assessed Mr Bower as unsuitable for detention in a Youth Justice Centre. Youth Justice have taken the following into account when making this determination.
(a) reasonable prospects for rehabilitation
-Mr Bower’s offending behaviour commenced at a young age of 16 and has escalated in frequency, type, and severity from theft related offending to increasingly violent behaviour over time. Despite Mr Bower’s significant history of engagement with Youth Justice and services to address his offending behaviour, intervention has not reduced his propensity to perpetrate violence or continue offending. Mr Bower has breached all orders subject to through the Children’s Court by way of further offending.
-Mr Bower is the primary instigator of the offending, planning his actions for retribution of the victim’s actions. Mr Bower justified his actions stating they occurred as a result of the victim’s behaviours. This shows Mr Bower’s poor emotional regulation and inability to utilise community norms to denounce poor behaviour, opting to use violence over calling the police.
-While Mr Bower has engaged well with clinical interventions through Caraniche Youth Forensic Services, his offending has escalated and he has continued to demonstrate anti‑social attitudes in his thought process and behaviours.
-While Mr Bower stated he “regrets his use of violence towards the victim,” he stated that this remorse was conditional and subject to the victim changing his behaviour, demonstrating Mr Bower’s superficial victim empathy. This is further shown by Mr Bower relating the harm from his offending to himself and his supports, rather than the victim and the broader community.
-Mr Bower has been offered continued and sustained interventions that sought to provide him with skills, capabilities, and opportunities. Focus has sought to improve moral judgement, redirect anti‑social attitudes and behaviours, disincentivise benefits of offending and reduce harm. Despite these efforts, Mr Bower continues to view offending behaviours as intrinsically rewarding. Mr Bower’s rehabilitation is unlikely to benefit from further interventions available through Youth Justice involvement.
(b)young person is particularly impressionable, immature, or likely to be subject to undesirable influences in adult prison.
-Mr Bower is currently 19 years of age, being at the upper chronological age range for Youth Justice involvement. Mr Bower has not been diagnosed with an intellectual disability.
-Mr Bower has a history of victimisation including, bullying, trauma, and sexual victimisation. Mr Bower’s history of trauma stems from exposure to family violence by Ms Bower’s intimate partners. Despite Mr Bower’s mental health concerns, he has been reluctant to access mental health support and treatment offered by Youth Justice. Mr Bower can access mental health support through the adult custodial setting, should he wish to engage in the future.
-Mr Bower has a history of violent behaviour, his actions of the index offence depict a planned and deliberate attack for retribution. Mr Bower’s actions demonstrate his offences relate to poor self‑control causing him to use violent behaviour.
-This is Mr Bower’s first period of remand in adult custody. Custodial information states that he has not been involved in any incidents while remanded. Mr Bower has reported one incident of assault in custody in February 2024. Mr Bower appears stable in adult custody; working full time and participating in programs whilst remanded.
Youth Justice assess that the adult custodial system can best address Mr Bower’s criminogenic and responsivity needs, through access to employment, psychosocial programs and mental health support.
The authors concluded by saying that the applicant did not meet either threshold for suitability set out in s 32(1) of the Act and assessed him as ‘unsuitable for detention within a Youth Justice Centre’.
Whilst observing that the court was not bound to accept the recommendation made in the report from Youth Justice, the judge nevertheless considered that the report was ‘compelling’. Taking the report and other circumstances into account, the judge was not satisfied that it was appropriate to make a YJC order.
Having reached that conclusion, as a matter of logical necessity the questions became: what period of imprisonment should be imposed in relation to the armed robbery charge, and what penalties should be imposed in relation to the summary offences?
The judge accepted that the applicant’s experience of having been sexually propositioned in primary school may have partly explained why he confronted the victim in the manner he did in the armed robbery, although he noted that this did not justify the applicant’s offending. The judge found that there was a degree of planning involved in the offending and noted that the applicant was in company at the time. The judge concluded that the armed robbery fell within the mid‑range of objective seriousness for offences of its type and that the applicant’s moral culpability was reasonably high. He took into account that the offending occurred soon after the Children’s Court imposed a youth supervision order on the applicant in February 2023.
Because the applicant’s offending had escalated despite the previous Children’s Court dispositions, the judge considered that in sentencing the applicant for this offending the court had to give weight to the purposes of general and specific deterrence and the protection of the community. In relation to the summary charges, in particular, the judge considered that, because of the applicant’s past convictions in relation to the possession of prohibited weapons and for offending while on bail, it was appropriate to order short periods of imprisonment for those offences.
Submissions on the application
Proposed ground 1
The applicant argued that the sentence imposed on each charge was excessive because it was the wrong type of sentence: the correct type of sentence was a YJC order. Thus, the applicant argued, the sentences imposed gave rise to an inference of error in the exercise of the sentencing discretion and there must have been some misapplication of principle. The applicant advanced six reasons in support of that proposition:
(a)first, the applicant was young both at the time of the offence and at the time of sentencing, he had not previously been imprisoned or detained, and rehabilitation is a particularly prominent sentencing consideration for youthful offenders;
(b)secondly, at the earliest reasonable time the applicant pleaded guilty, the plea having significant utilitarian value;
(c)thirdly — calling upon the principle of parsimony — it was not ‘open’ to the judge to sentence the applicant to a term of imprisonment instead of detention in a Youth Justice Centre;
(d)fourthly, the applicant has reasonable prospects of rehabilitation considering his youth, successful attendance at supervised bail appointments, efforts toward rehabilitation whilst on remand in adult custody, and also considering the particular explanation for this offending and the psychiatric evidence favouring his prospects of rehabilitation;
(e)fifthly, the applicant is particularly impressionable and immature and likely to be the subject of undesirable influences in adult prison; and
(f)sixthly, the applicant was exposed to trauma as a young child, being the victim of sexual assault, exposed to domestic violence and having experienced bullying.
The respondent pointed out that, in respect of proposed ground 1, the applicant made no apparent complaint about the length of the sentences, only the type of sentence. Such a ground, the respondent submitted, requires a finding that the type of sentence imposed was wholly outside the range of those open in the sound exercise of the sentencing discretion. The respondent submitted that, instead, the term of imprisonment in an adult prison was well open to the sentencing judge for each charge, because:
(a)absent a conclusion that a YJC order was appropriate, adult imprisonment effectively remained the only available sentencing option for armed robbery;
(b)the sentencing judge’s conclusion that the preconditions for making a YJC order were not made out was reasonably open to him, given that —
(i)the armed robbery was a frightening and at least mid‑level example of a serious offence, committed by an 18 year old offender with a prior criminal history that included multiple instances of aggravated burglary, theft and unlawful assault, and while subject to youth supervision orders;
(ii)despite some evidence of the applicant’s immaturity and impressionability, the mitigatory consideration of youth was seen by the judge to be somewhat diluted because of the seriousness of his offending and his prior findings of guilt; and
(iii)the Youth Justice pre‑sentence report assessed the applicant as being unsuitable for a YJC order, which the sentencing judge found to be compelling;
(c)in relation to the summary charges, the prohibited weapon was a taser designed to emit an electric current into a human body for the purpose of incapacitation or injury, and the applicant had four previous findings of guilt for the same offence; and
(d)in relation to committing an indictable offence whilst on bail, the applicant had nine recent prior findings of guilt for the same offence.
Proposed ground 2
The second proposed ground is confined to an arguable error in the sentence imposed in respect of the possession of a prohibited weapon (summary charge 4). The applicant was sentenced to 4 months’ imprisonment, two of which were to be served cumulatively upon the base sentence. The maximum penalty for the offence is 2 years’ imprisonment or 250 penalty units.
The applicant argued that the sentence was manifestly too long having regard to a combination of factors: the applicant’s youth and his early guilty plea; the principle of parsimony; excessive cumulation of 2 months’ imprisonment having regard to the principle of totality; the applicant’s reasonable prospects of rehabilitation; and his particularly impressionable, immature nature making him susceptible to undesirable influences in adult prison.
Once again, the applicant argued that a different type of sentence could have been imposed through the imposition of either a financial penalty or detention in a Youth Justice Centre. Both the length of the sentence and the type of sentence imposed, the applicant submitted, give rise to an inference of error in the exercise of the sentencing discretion.
The respondent argued, as it did in relation to proposed ground 1, that a term of adult imprisonment for summary charge 4 was not a type of sentence which was wholly outside of the range of sentences open in the sound exercise of the discretion. As to length, a term of 4 months can only be categorised as moderate for a serious example of an offence with a maximum penalty of 2 years’ imprisonment. This is so even having regard to the early guilty plea, the mitigatory effect of youth (which was ‘somewhat diluted’) and the prospects of rehabilitation which the judge described as ‘guarded’. The respondent also submitted that summary charge 4 involved distinct criminality, and that the partial cumulation reflected the sentencing judge’s regard to the principle of totality.
Relevant legal principles
The wrong type of sentence
In Dinsdale v The Queen,[10] Gleeson CJ and Hayne J explained that a manifestly inadequate or excessive sentence may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. Their Honours explained that manifest inadequacy or excessiveness of a sentence is a conclusion which does not depend upon attribution of any identified specific error in the reasoning of the sentencing judge.[11]
[10](2000) 202 CLR 321; [2000] HCA 54.
[11]Ibid 325–6, [6] (Gleeson CJ and Hayne J).
Despite the identification in Dinsdale of the ‘wrong type of sentence’ as a species of manifestly inadequate or excessive sentence, there are not many cases, at least in Victoria, in which the wrong type of sentence has been identified as the particular reason for a sentence being either manifestly excessive or inadequate. There are, however, a number of cases in Western Australia which have attributed that reason for a sentence being manifestly inadequate or excessive. These have been gathered in the decision of Derrick J in Franco v Director of Public Prosecutions (WA).[12] Drawing upon principles outlined in the previous cases, Derrick J said:
Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred. To put the matter another way, the question for the appellate court is whether it was reasonably open for the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not appropriate.[13]
[12](2022) 303 A Crim R 142, 150–1 [35]–[36], nn 42–4 (Derrick J); [2022] WASC 340 (‘Franco’).
[13]Ibid [35] (citations omitted).
Some illustrations of the application of the ‘wrong type of sentence’ analysis are as follows:
•In Scannell v The Queen,[14] this Court found that a wrong type of sentence had been imposed at first instance by virtue of the inclusion of a non‑parole period when sentencing an offender for a sexual offence to a term of imprisonment of 2 years with a 12‑month non‑parole period. In an unusual case, a frail and sickly 88 year old priest was sentenced for a sexual offence committed almost 45 years earlier. He had no prior convictions, there had been no offending since, and the offence was seen as an aberration. There was a good deal of evidence attesting to his good character. There was no risk of him reoffending, and, in that sense, his rehabilitation was said to be ‘complete’. In those circumstances, Priest JA (Weinberg JA and Lasry AJA agreeing) held that it was ‘wholly inappropriate’ to include a non‑parole component when none of the objects underlying parole had any application to the applicant.
•In Simms v Geeson,[15] Derrick J found that it was outside the range of sentences open to the magistrate to impose a sentence of 6 months, four of which were suspended, for a 22 year old man who had pleaded guilty to charges of receiving stolen goods and fraud where the offences were assessed to fall at the low end of seriousness. The judge set aside the sentence and substituted fines of $100 on each charge.
•In DPP v Anderson,[16] this Court rejected a submission that a wrong type of sentence had been imposed, agreeing with the sentencing judge that a YJC order was not appropriate and that imprisonment in an adult prison was required because of the seriousness of the young offender’s offence, his past offending and the previous opportunities afforded to him to be rehabilitated in a Youth Justice Centre. This Court approved the sentencing judge’s remarks when she said that the applicant’s ‘previous history in the juvenile system has been such that it has made [the applicant’s] involvement in that setting … problematic. It is probable that [the applicant had] exhausted any advantage that system could provide in assisting [his] rehabilitation as it might otherwise have done’.[17]
Youth Justice Centre Orders
[14][2014] VSCA 330.
[15][2020] WASC 381.
[16](2013) 228 A Crim R 128; [2013] VSCA 45.
[17]Ibid [42]–[43] (Maxwell P, Neave JA and Kaye AJA).
Under the Act, a court can only make a YJC order for an offender who is, at the time of offending, at least 15 years old and no more than 21 years old.[18] A YJC order is described in the Act as ‘confinement’ and ‘detention’; it is not a term of imprisonment.[19] There is no minimum term under a YJC order, and all Youth Justice Centre inmates are immediately eligible for parole.
[18]The Act, ss 3 (definition of ‘young offender’), 32(2A).
[19]Bradshaw v The Queen [2017] VSCA 273, [54] (Kyrou and Redlich JJA).
It has been said that a YJC order is an ‘inherently less onerous sentence than a sentence of imprisonment to be served in an adult prison and it reflects the premium which the judge placed on rehabilitation’.[20] In Moresco v The Queen,[21] this Court said:
[T]he applicant will serve his sentence, with other young inmates, in a Youth Justice Centre. Such an institution is, by its nature, also punitive, but its focus is on the development and rehabilitation of its detainees. Specifically, s 478(c) of the Children, Youth and Families Act 2005 provides for the establishment of youth justice centres “for the care and welfare of persons” who are ordered to be detained under the Sentencing Act 1991 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Likewise, section 482(2)(a) of the Children, Youth and Families Act 2005 provides that persons, who are detained in such a centre, “are entitled to have their developmental needs catered for”.[22]
[20]Gosland v The Queen [2013] VSCA 269, [30] (Nettle and Coghlan JJA).
[21][2018] VSCA 336.
[22]Ibid [51] (Kaye, Hargrave and Weinberg JJA).
Sections 32(1)–(2) of the Act provide:
(1)Subject to subsections (2A), (2B), (2C) and (2D), 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 centre 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.
Thus, s 32 permits, but does not require, a court to make a YJC order if the conditions enlivening the power to make one are met. But the conditions themselves point to the purpose of the exercise of the discretion.
That purpose is apparent because such an order is appropriate (not mandatory) if an offender has reasonable prospects of rehabilitation or if, due to his or her impressionable nature, is likely to be subject to undesirable influences in adult prison. These criteria reflect both positive and negative factors relevant to achieving the goal of rehabilitation. On the positive side, there may be favourable prospects of rehabilitation (for example, a willingness to be rehabilitated, or the offender’s criminality is not entrenched). On the negative side, there may be the risk that, if imprisoned in an adult prison, the young offender will be exposed to experienced adult offenders who might increase the young offender’s criminal knowledge and so their possibility of re‑offending.
Thus, the choice of a YJC order over adult prison is to be influenced by the relative priority to be given to rehabilitation for those who are at a particularly strategic time in their lives, when influences especially matter. That level of priority is to be assessed on a scale that takes into account the individual offender’s need and suitability for rehabilitation in a specifically youth‑focused and less‑onerous environment.
Additionally, the requirements that a pre‑sentence report be obtained, and that the court must consider the nature of the offence and the age, character and past history of the offender, point to the potential existence of countervailing considerations. By reason of those factors the particular offender may be unsuitable for rehabilitation in a Youth Justice Centre, as opposed to an adult prison, and the offender may not be suitable to be placed amongst other youthful detainees whose care and welfare should also be considered. Although the receipt of a pre‑sentence report is a necessary precondition to a court making a YJC order, the court is not bound to follow the report’s recommendations; it is not ‘controlling’, but the court must give such reports the weight they deserve to be given.[23]
[23]Webster v The Queen (2016) 258 A Crim R 301, 320 [86] (Beach JA); [2016] VSCA 66.
Importantly, unlike some other sentencing options, there is no specific requirement that a court must consider making a YJC order before sentencing a young offender to adult prison.[24] By contrast, it is instructive to consider s 5(4C) of the Act, which concerns a choice between a custodial sentence and a community correction order. That provision prohibits a court from sentencing an offender to confinement if the purposes of the sentence can be achieved by a community correction order with conditions. No such constraint exists in relation to the choice between a YJC order and adult prison for an eligible youth offender.
[24]Compare, for example, The Act, ss 5(3)–(7).
Both a YJC order and a term of imprisonment involve confinement; but the confinement occurs in different settings. Even though confinement pursuant to a YJC order is generally considered to be ‘less onerous’ than imprisonment in an adult prison, a YJC order is not, formally, lower in the sentencing hierarchy such that, as a matter of law, a sentence of imprisonment in adult prison may only be imposed if the court is positively satisfied that it is not appropriate to make a YJC order. In this respect, the analysis of whether a sentence of imprisonment in an adult prison (as opposed to a YJC order) is a ‘wrong type of sentence’ is not subject to the test referred to in Franco, in the final sentence of the extract above at [39] (that is, whether it was reasonably open to the sentencing judge to be positively satisfied that the less serious sentencing option was not appropriate).
Consideration
It is plain, in my view, that leave to appeal must be refused in relation to proposed ground 1.
As has been said, it is a stringent test, difficult to satisfy, to show that a particular sentence was not reasonably open to a sentencing judge when proper consideration was given to all the relevant circumstances of the offending and the offender.[25]
[25]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlick and Harper JJA); [2011] VSCA 157.
None of the judge’s findings of fact or his application of those facts have been disputed or challenged by the applicant. Although there was some evidence to suggest that the applicant had reasonable prospects of rehabilitation and was impressionable and potentially susceptible to the adverse influence of older prisoners in an adult prison, there was also evidence to the contrary effect. In the end, the judge expressed reservations about the applicant’s prospects of rehabilitation and was not persuaded that the applicant needed to be shielded from the influence of adult prisoners. As stated, no specific criticisms are levelled at those factual conclusions nor is it said that such conclusions were not available on the evidence.
Even if the judge had found that either or both of the matters referred to in ss 32(1)(a)–(b) had been satisfied, he would not have been obliged to make a YJC order. He only would have been permitted to do so after taking into account the factors in sub‑s (2) and the contents of the pre‑sentence report. When those matters are considered, it is beyond doubt that it was open to the judge not to be satisfied that a YJC order was appropriate.
Although the applicant was within the ‘young offender’ age band, he was at the upper end of that band at the time of sentence. He had spent time on remand in an adult prison and, according to Dr Deacon, was coping reasonably well. Armed robbery is an inherently serious crime and the applicant’s offending was assessed to be at the mid‑level of seriousness for that serious crime. Despite his youth, his past history of offending was both relevant and concerning and it well justified the judge’s reservations about his prospects of rehabilitation. Finally — and importantly — in a long and detailed report which has not been specifically criticised or challenged, Youth Justice assessed the applicant to be unsuitable for a YJC order. Although not obliged to follow that assessment, the judge was, of course, entitled to do so. As stated, the judge regarded the report as compelling.
In relation to the summary offences, the respondent is right to highlight the number of offences of a similar nature for which the applicant had been found guilty in the past. He had been given lenient dispositions on two occasions which had failed to deter him from carrying the knife to the armed robbery and also possessing a taser. All the while, he was subject to youth supervision orders in relation to offences including possessing weapons and committing offences while on bail. With guarded prospects of rehabilitation, it was well open to the judge to give greater prominence to deterrence and community protection and thus impose a short sentence of imprisonment rather than adopt another sentencing disposition.
It must be remembered that, although the judge gave careful consideration to whether a YJC order would have been appropriate — and it was prudent and desirable that he should do so — the Act does not make it a legal prerequisite for sentencing a young offender to a term of imprisonment that the court first be positively satisfied that a YJC order is not appropriate. So, when the applicant submitted that, having regard to the principle of parsimony it was not ‘open’ to the judge to impose a sentence of imprisonment rather than make a YJC order, that submission must be understood to mean that, having regard to the particular facts of this case, the only sentence available in the proper exercise of the discretion was to make a YJC order.
For the reasons that have been given, that submission is not reasonably arguable.
Turning briefly to proposed ground 2, in my view it is equally without merit. Significantly, the applicant had previously been found guilty on several occasions for possessing a weapon, and the applicant’s conduct in the face of past lenient dispositions did not support the view that a short sentence of imprisonment was an unavailable sentencing option for summary charge 4. The moderate amount of cumulation was also unremarkable considering the separate degree of criminality that the offending represented.
In conclusion, leave to appeal must be refused in relation to both proposed grounds of appeal.
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