Brayden Walker v The Queen

[2017] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0244

BRAYDEN WALKER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2017
DATE OF JUDGMENT:	7 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 80
JUDGMENT APPEALED FROM:	[2016] VCC 1944 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Whether manifestly excessive – Youth of offender – Prospects of rehabilitation – Gravity of offending – Manifest excess not demonstrated – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr M P Cahill SC with Ms J Swiney	Matthew White and Associates
For the Crown:	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

1. I agree with Osborn JA. 

REDLICH JA:

1. I agree with Osborn JA. 

OSBORN JA:

1. The appellant is 21 years old.  He appeals by leave against a sentence of two years’ detention in a Youth Justice Centre imposed by Judge McInerney in the County Court of Victoria in respect of a conviction for armed robbery following a plea of guilty. 

1. Leave to appeal was granted on two grounds,[1] but the first ground has now been abandoned and the sole question for this Court is whether the sentence imposed was manifestly excessive. 

   [1]Leave was granted by Priest JA on 20 February 2017. 

1. In essence, it is submitted that having regard to the appellant’s youth, and his positive prospects of rehabilitation, the sentencing judge was bound to accept that a sentencing disposition by way of a Community Correction Order (‘CCO’) without a custodial sentence was the appropriate outcome. 

1. That outcome was accepted by the prosecution to be within the range properly open to the sentencing judge and, on the hearing of this appeal, senior counsel for the Director maintained that position, but submitted conversely that the disposition at which his Honour arrived was also within the range properly open to him. 

1. In my view, when regard is had to all the circumstances of the case and, in particular, the gravity of the offending and the need for just punishment, denunciation and general deterrence, and despite the matters favouring a more

lenient sentence, his Honour’s sentence cannot be characterised as manifestly excessive. 

The offending

1. Early on 18 February 2016, shortly after midnight, the appellant went to the Shell Coles Express service station in Wantirna North.  The premises were empty save for an attendant who was vulnerable because of his isolation.  He constituted what is often called a ‘soft target’ in terms of potential armed robbery. 

1. The appellant knocked on the door and, after the attendant had opened it, the appellant entered the store covering his face with a black cloth and produced a large shiny kitchen knife — a potentially lethal weapon. 

1. As the closed circuit television (CCTV) recording shows, the appellant then lent over the counter and pointed the knife at the attendant, yelling ‘give me the cash, give me the cash!’. 

1. The appellant then came around the counter and, whilst brandishing the knife immediately in front of the attendant, told the attendant to open the safe.  The attendant opened the cash register and gave the appellant $200, telling the appellant that there was no safe that he could open. 

1. Having scooped up the money, the appellant fled.  The CCTV footage confirms that the appellant’s confrontation with the attendant must have been truly terrifying from the attendant’s point of view, although it lasted only a little under one minute in duration. 

1. The appellant was arrested on 22 February 2016.  He was interviewed by police and was initially evasive, but later admitted that he was the offender shown in the CCTV footage of the offending. 

The plea hearing

1. There were five significant matters raised in mitigation of sentence. 

1. First, the appellant was only 20 years old at the time of the offending and fell to be considered as a young offender.  In such cases, as the sentencing judge accepted, rehabilitation may be regarded as the primary sentencing objective.[2] 

   [2]R v Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392.

1. Secondly, the appellant had good prospects of rehabilitation.  He had no prior convictions.  He had pleaded guilty before the committal hearing and expressed remorse for his offending.  Since offending, he had settled into steady employment as an apprentice carpenter/framer and was living at home with his mother and siblings.  References tendered to the judge showed that he had strong family support. 

1. Thirdly, despite a history of an acute psychotic episode in June 2015 and subsequent psychiatric treatment, the appellant had also demonstrated stable mental health during the period prior to his sentence.  Significantly, he had also demonstrated a capacity to abstain from the use of illicit drugs.  From the age of 18, he had experimented with methamphetamine, but he had not used methamphetamine since the offending.  He also had a history of ongoing cannabis use and was still using cannabis at the time of the initial plea hearing on 5 August 2016.  The sentencing judge adjourned that hearing in order to obtain pre-sentence reports and to give the appellant the opportunity to demonstrate that he could abstain from illicit drugs.  Drug screening tests produced to the Court on 14 November 2016 confirmed that he had ceased using both methamphetamine and cannabis. 

1. Fourthly, a senior case manager of the Department of Human Services gave oral evidence as to the appellant’s progress under the Youth Justice Supported Bail Program, amplifying the appellant’s personal history and supporting the conclusion that his prospects of rehabilitation were positive. 

1. Fifthly, following the adjournment of the plea hearing, reports were obtained indicating that the appellant was suited for both detention in a Youth Justice Centre and management by way of a CCO. 

1. In turn, the prosecutor had indicated at the initial plea hearing that a CCO (without an initial custodial sentence) came within the range of sentence. 

I can indicate that the prosecution’s position is that a [CCO] is within range.  Despite the application of general deterrence in this matter, the prosecution identify the following features as being aggravated in this [offence]:  that the victim was a soft, vulnerable target, that the offending was committed early in the morning with the attendant working alone, and that the knife was in close proximity to the victim.  The victim, as Your Honour’s identified, says in his statement that he felt scared as a result of that, which is unsurprising given the footage that was viewed this morning. 

The Crown do concede that the offender has relatively good prospects of rehabilitation given his young age, his lack of priors, his family support, that he’s currently employed and appears to have had a work history, and that he’s had positive engagement with Youth Justice.

Just against that in terms of his prospects of rehabilitation, the report does note that — and it was discussed by Your Honour and my learned friend — that he is not motivated to cease use of cannabis, so in terms of conditions that would attach to the CCO, the prosecution submit that it would be appropriate that there be unpaid community work to meet the requirements of general deterrence and that also there be treatment conditions for mental health and alcohol and drug-related assessment and treatment. 

Analysis

1. The sentencing judge accepted the relevance of each of the factual matters advanced on behalf of the appellant, but ultimately concluded that the gravity of the offending was such that it required the imposition of a period of detention (but not imprisonment within an adult jail).  In so concluding, his Honour had regard to the maximum penalty prescribed for the offence of 25 years’ imprisonment and the specific behaviour involved in the offending and the impact the offending had upon its immediate victim.  He concluded that these matters demonstrated a need for just punishment, and specific and general deterrence.  His Honour was entirely correct to regard each of these factors as being of significant weight in the present case. 

1. A careful reading of both the transcript of the plea hearing and his Honour’s sentencing remarks makes plain that his Honour understood and carefully considered the sentencing options potentially open to him.  His Honour took account of the guidance given by this Court in Boulton v The Queen,[3] Director of Public Prosecutions v Borg,[4] and McGrath v The Queen.[5]  Ultimately, the sentencing judge was required to balance the factors favouring the imposition of a CCO against those favouring some form of detention.  In my view, it cannot be said that the conclusion to which he came was plainly unjust or not reasonably open to him, nor that the sentence imposed compels the conclusion that it involved a misapplication of principle.[6]  It was not wholly outside the range of sentencing options open in all the circumstances of the case.[7]

   [3](2014) 46 VR 308.

   [4](2016) 75 MVR 26.

   [5][2015] VSCA 176.

   [6]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 568 [56] (Bell and Gageler JJ); R v Kilic (2016) 91 ALJR 131, 140–1 [36].

   [7]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

1. The appeal should be dismissed.  Manifest excess has not been demonstrated. 

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