Clark v The Queen

[2013] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0267

CHASE CLARK
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing
DATE OF JUDGMENT:	26 April 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 98
JUDGMENT APPEALED FROM:	DPP v Clark (Unreported, County Court of Victoria, Judge Campton, 6 September 2012)

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CRIMINAL LAW – Sentence – Election to have application for leave to appeal against sentence determined by Court of Appeal – One charge of burglary, one charge of theft and one charge of criminal damage – Pleas of guilty – Sentenced to total effective sentence of imprisonment for two years and three months – Non-parole period of 12 months – Totality – Whether sentencing judge erred in assessment of seriousness of offending – Whether sentence manifestly excessive – Leave to appeal refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
No appearances

HARPER JA:

Introduction

1. In the dark of the very early hours of Saturday 28 August 2010, two males forced their way into the office of a used car dealer, damaging the lock on the office door as they did so.  The police subsequently found, on the premises, a cigarette butt which was forensically examined for traces of DNA.  Because he is a young man with, nevertheless, a considerable criminal history, the police already had a sample of the applicant’s DNA.  That on the cigarette butt was shown to match the DNA of the applicant.

1. The office of the premises broken into held, among other things, car keys, an electric drill and a safe.  The intruders forced the safe open with the drill.  They took nothing from it, doubtless because there was nothing to take.  But they did leave a sample of blood.  When forensically analysed, it too revealed DNA which matched that of the applicant.

1. After the results of the DNA tests were made known to the applicant he pleaded guilty to one charge of burglary, one of theft and one of criminal damage.  In all three cases, the maximum penalty is imprisonment for ten years.  The applicant was sentenced on 6 September 2012 to 12 months’ imprisonment on the charge of burglary, 18 months on the charge of theft and nine months on the charge of criminal damage.  The sentence on the second charge was the base sentence, to which the sentencing judge added by way of cumulation six months of the sentence on the first charge and three months of the sentence on the third.  The total effective sentence was therefore imprisonment for two years and three months.  Her Honour directed that the applicant serve 12 months before becoming eligible for parole.

1. The applicant seeks leave to appeal against this sentence.  There are three proposed grounds.  They are, first, that the sentencing judge erred in her application of the principle of totality; secondly, that her Honour erred in the assessment of the comparative seriousness of the applicant’s offending; and, finally, that the sentence is manifestly excessive.  All three proposed grounds may conveniently be dealt with together.

The evidence and the plea

1. Having received nothing from the safe, while leaving on it evidence which resulted in his identification, the applicant and his co-offender stole six sets of keys. With the assistance these gave, they selected a gold Mazda Astina and a silver Toyota Kluger.

1. Driving these vehicles away required resort to some unorthodox techniques.  The roller door of the garage was only partially open when the Mazda crashed through it, and then not around but over a bollard.  The car, the garage door, and the bollard were all extensively damaged.  Behind the departing intruders was additional damage to the safe and some of the walls of the premises (caused by a tomahawk), while the contents of cabinets and desk drawers were strewn randomly over the floor.  In all, the bill to repair the damage is expected to amount to some $10,000 - $15,000.  The approximate value of the Toyota was $21,000, while that of the Mazda was $8,000.

1. The applicant was interviewed on 13 January 2011.  He was then in prison on two bases.  First (as best one can gather from the documents available to this Court) he had been the unsuccessful respondent to a Crown appeal from the sentencing decision of a magistrate in relation to three burglaries on commercial premises none of which were the used car yard the subject of the burglary of 28 August 2010.  The County Court had re-sentenced the appellant on 31 August 2010, three days after the cars were stolen, to be imprisoned for 13 months as punishment for the other three burglaries.  He commenced to serve that sentence on that day.

1. The second explanation for the fact that the applicant was in prison when he was interviewed on 13 January 2011 begins with the imposition of two separate periods of imprisonment, both of which were wholly suspended.  On 28 October 2009, the applicant was sentenced by the Dandenong Magistrates’ Court to six months’ imprisonment.  Three weeks later, on 17 November 2009, the Ringwood Magistrates’ Court ordered that he be imprisoned for an additional five months.  The offences dealt with at Dandenong were robbery, intentionally causing injury and escaping from lawful custody.  Those dealt with at Ringwood were robbery, unlawful assault and burglary.  Each court took the view that, to assist in the applicant’s rehabilitation, each sentence should be wholly suspended. 

1. The mercy of the court did nothing, at least at that time, to advance its aim.  Far from being rehabilitated, the applicant continued to offend.  His re-sentence on 31 August, following the Crown appeal referred to above, resulted in the suspended sentences of 28 October 2009 and 17 November that year being changed on 12 November 2012 to sentences of actual incarceration.  

1. In the meantime, on 30 April 2011 the applicant had been released on parole.  On 24 August that year, he was charged with the offences which are the subject of this appeal. 

1. A contested committal proceeding took place on 24 May 2012 and on the following day.  A plea to the current charges was accepted by the Crown on the following 24 August, exactly a year after the applicant was charged.

1. The plea hearing took place on 6 September 2012.  Her Honour pronounced sentence later that day.

1. The gravamen of the submission put to the sentencing judge on behalf of the applicant was in two parts.  The first was that he had since his most recent incarceration made substantial and substantive attempts to engage in those programs which were available to him and which were designed to advance his rehabilitation.  The second was that as at 6 September 2012 he had served 525 days in prison since his re-incarceration on 31 August 2010, not counting the period between 30 April the following year and his being remanded on new charges on 29 November 2011.

1. In her reasons for sentence, the sentencing judge referred to the evidence supporting the conclusion that the applicant has ‘been bettering [himself] while [he has] been in custody.’  He had at that point, and may be still, seeing Geoffrey Fox, a psychologist, about the regulation of his emotions and behaviours, the development of his capacity for insight and his capacity to adjust to life after prison.  He has also become involved with the Moreland Hall program, and has completed a number of courses designed to enable the applicant to be drug-free on and after release.  He has in addition become something of a mentor for other prisoners of Maori background.

1. Her Honour also referred to the period of 525 days’ incarceration which the applicant had to that point served since 31 August 2010. The applicant contends that the judge nevertheless failed to give due weight to it. As Priest JA said, sitting as a single judge pursuant to s 315 of the Criminal Procedure Act when refusing the applicant's application for leave to appeal: 

The gist of the submission is that however one looks at it, the time spent in custody on unrelated matters is not adequately reflected in the sentences passed for the offences the subject of this application.  Thus it is contended that in approaching pre‑sentence detention in the way that she did, the judge failed to have regard to the total time the applicant will ultimately have to spend in custody and to mitigating factors such as the applicant's youth and early offer to plead guilty.

1. Her Honour did, however, refer in her sentencing reasons to the question of the 525 days incarceration.  She said at [17] of those reasons: 

I have taken into account, in accordance with the cases of Renzella[1] and Wheldon[2], the time you spent in custody with respect to unrelated offending.  In doing so, I have exercised my common law discretion.

[1]R v Renzella (1997) 2 VR 88.

[2]Wheldon v The Queen (2011) 31 VR 297.

1. Priest JA was of the view, which I share, that the sentence ultimately imposed of two years and three months' imprisonment with a non‑parole period of 12 months, demonstrated adequate consideration by the sentencing judge not only of the mitigating factors submitted by the defence, but also of the pre‑sentence

detention, whether considered in its totality in the broad sense, or otherwise.  I agree with his Honour that it was clear that the judge considered the prosecution's sentencing range, which purported to take into a account the time that the applicant spent in custody, together with totality and proportionality, and rejected that range on the basis that it was too high.  Rather, the judge came to the view that a lower sentence was appropriate; and the sentence which her Honour pronounced properly reflected that conclusion.

1. In my opinion, the two bases upon which that sentence was in the applicant's submissions to be rejected, cannot be sustained.  The application for leave to appeal is not one which, in my opinion, is arguable and accordingly I would refuse leave to appeal.

OSBORN JA:

1. I agree.

HARPER JA:

1. The order of the Court is that the application for leave to appeal against sentence is refused.

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