D v Lusted
[2013] TASSC 31
•12 June 2013
[2013] TASSC 31
COURT: SUPREME COURT OF TASMANIA
CITATION: D v Lusted [2013] TASSC 31
PARTIES: D, K L
v
LUSTED, Gary (Sergeant)
FILE NO/S: 299/2013
DELIVERED ON: 12 June 2013
DELIVERED AT: Hobart
HEARING DATE: 7 June 2013
JUDGMENT OF: Wood J
EDITED REASONS DELIVERED ORALLY
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Eighteen year old sentenced for multiple incidents of motor vehicle stealing and other offending – Whether a sentence of imprisonment of 15 months manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: S A Nicholson
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 31
Number of paragraphs: 19
Serial No 31/2013
File No 299/2013
K L D v SERGEANT GARY LUSTED
REASONS FOR JUDGMENT WOOD J
(EDITED REASONS DELIVERED ORALLY) 12 June 2013
The applicant seeks a review of a sentence imposed upon him by Magistrate R Pearce (as he then was) of 15 months' imprisonment. The sentence was imposed for a spree of offending, involving mainly offences of motor vehicle stealing and related offences of dishonesty. The ground of review is that the sentence is manifestly excessive.
The offending
In a period of just under a week, between 28 October 2012 and 2 November 2012, the applicant committed the following: seven offences of motor vehicle stealing, four of attempted motor vehicle stealing, one offence of driving whilst disqualified, four of burglary of motor vehicles and nine of stealing involving property from the motor vehicles mentioned, two offences of contravene conditions of a bail notice, and one offence of wilfully obstruct a police officer, make off without payment, common assault, injure property, use abusive language to a police officer and resist a police officer. The learned magistrate summarised the applicant's offending in the following terms:
"Over the period between 28 October 2012 and 2 November 2012 he, in company with another young male, stole 7 cars. They attempted to steal 4 others. Property was stolen from inside the cars they stole or attempted to steal. They committed burglaries of 4 other cars. When later interviewed he admitted to the police that he had driven a stolen car while he was disqualified from driving. The cars were recovered, some with relatively minor damage, except for one that was destroyed by fire. I am not to sentence him for that offence. The other property stolen had a total value of about $2,000 but would have been worth more than that to the owners. It has not been recovered. During the same period he made off without paying a taxi fare on [sic] $26.30. He was arrested on 2 November 2012 and admitted to bail by the police but then breached the curfew and residential condition on his bail between 7 and 13 November and did not sign in as required on 12 November.
On 13 November 2012 he was at his father's house when, for no apparent reason, he punched his sister twice to her face. After being restrained by his father he then damaged his sister's car by striking it with a block of wood causing about $1000 damage. When the police arrived he abused one officer and then resisted arrest by struggling violently. Fortunately his sister was not seriously injured although she suffered a bruised and blackened left eye."
Other relevant facts of offending are as follows:
· There was a total of 15 motor vehicles the subject of charges of motor vehicle stealing, attempted motor vehicle stealing, burglary and stealing ("the motor vehicle offences").
· The total value of property stolen was approximately $1,772. On three occasions valuable items were stolen: an Apple Ipod and a bag containing sporting equipment worth $1,009, a handbag and purse containing cash worth $380, and a socket set worth $200. Otherwise the property or cash was worth around $75 or less.
· All of the motor vehicle offences were committed with another person, who had the most active role, often being the one who entered the motor vehicle while the applicant assisted in some way such as by being a look-out.
· The applicant drove one of the vehicles and was charged as the driver with respect to that occasion, but otherwise was a passenger and charged as "using" with respect to the other offences of motor vehicle stealing.
· The damage associated with the offences was all minor. On one occasion there was some damage caused to the bumper bar after the co-offender struck a road marker whilst driving. Apart from that occasion, damage was caused in connection with forcing entry or forcing the ignition. A second vehicle was described as having minor damage to the bodywork. There was no vandalism of the vehicles. The applicant would subsequently be dealt with in the Supreme Court for the crime of unlawfully setting fire to one of the vehicles.
· The vehicles were stolen from and recovered in Launceston.
The offender
The learned magistrate referred to the applicant and his circumstances as follows:
"Mr D had his 18th birthday on … May 2012. These offences were committed as an adult but the principles of sentencing young offenders apply to him. He had a disrupted upbringing and has a chaotic lifestyle. He claims that use of illicit drugs contributes to his offending but the pre-sentence report I obtained points also to a severe personality disorder that makes it difficult to believe anything he says. He has an appalling record as a youth for offences of dishonesty and breach of court orders, although not for violence. On 1 July 2011 he was sentenced to a lengthy period of actual detention. He has not been sentenced since then but he has not been in Tasmania for much of the time since his release. He is not to be sentenced for past conduct but it indicates a need for specific deterrence and to protect the public. He displays a continuing disregard for the law and for the personal and property rights of others. The many services that have been offered to him over the years have not altered his offending behaviour. All the information I have indicates little prospect of rehabilitation but because of his age allowance must be made for it. Some mitigation arises from his plea of guilty and his admissions to the police. I accept that some of the charges he now pleads guilty to arise only from his admissions. There are no other mitigating circumstances. When he set off on his criminal enterprise at the end of October he must have known that he would go to prison for a lengthy period if caught."
The applicant was sentenced by the learned magistrate on 6 March 2013. His 18th birthday was in May 2012. He had been in custody, on remand in an adult prison, since 14 November 2012 and the sentence was backdated to commence on that date. He had not received a term of imprisonment before. He had an extensive history of offending and, except for one sentence imposed by an interstate Magistrates Court when he was 17 years of age, he had been sentenced in the Youth Court up until this spree of offending. He had received periods of detention in the past.
He was first dealt with in the Youth Court in June 2005, when he was aged 11 years, for offences of aggravated burglary x 2, motor vehicle stealing, stealing x 3 and dishonestly acquiring a financial advantage. His history of offending shows that he has been re-sentenced on a number of occasions as a consequence of applications to revoke his non-custodial sentences, due, I infer, to his lack of compliance with the conditions attaching to those sentences. Taking into account that some offending is recorded as an original sentence and a re-sentence, his record shows the following relevant offending: motor vehicle stealing x 2, stealing x 58, burglary x 9, aggravated burglary x 11, attempted aggravated armed robbery x 1, common assault x 4, destroy property x 6, dishonestly acquire a financial advantage x 17, use abusive language to a police officer x 3, unlawfully set fire to property x 2 and one for each of the offences of fail to comply with a direction of a police officer, assault a police officer, resist a police officer, dangerous driving, evade police, drive whilst not the holder of a driver licence, threaten police officer and contravene conditions of a notice.
I have referred to his prior offending in Tasmania. The applicant also has a record of offending in Queensland, Victoria, New South Wales and Western Australia for the period April 2011 – February 2012, and was dealt with for various offences involving fraud and in all jurisdictions received a sentence falling short of an actual custodial sentence, except in New South Wales. He was sentenced by a Children's Court in Sydney to a custodial period in a Youth Detention Centre for steal property as a clerk/servant.
As the learned magistrate said, he had an "appalling record as a youth for offences of dishonesty".
The applicant has served earlier periods of detention. He spent short periods in detention at a young age, in the order of three months, on remand. On 27 May 2010 he received a term of six months' detention as a re-sentence, and on 1 July 2011 he received a period of 10 months' detention cumulative to a period of nine months' detention imposed on the same date, as a re-sentence.
The proceedings before the magistrate
The applicant appeared before the learned magistrate on 10 January 2013 and changed his pleas from not guilty to guilty. It appears that that was the morning that a voir dire hearing was scheduled to proceed in relation to the admissibility of a police record of interview. Defence counsel indicated that there was no issue with the statements of facts of his offending and they were handed to the magistrate to read. The sentencing hearing was adjourned to 7 February 2013. The facts were not read out in court by the prosecutor on either date. That approach of the prosecutor should not be followed for the reasons I mentioned in Ferguson v State of Tasmania [2011] TASSC 51 at [41].
On 7 February a plea in mitigation was advanced on the applicant's behalf. It was said that his motivation for offending was drugs or food. He lived at Scottsdale with his family. He was unemployed. Unfortunately, he had formed an association with his co-offender, who was described as a very bad influence and someone who had an extensive history. It was indicated that the applicant wanted "to do drug and alcohol programs to get back on track". The applicant's full and frank admissions to police were emphasised. The learned magistrate indicated that a pre-sentence report was warranted, and adjourned the matter for that purpose until 6 March 2013. On 6 March 2013, the magistrate was informed that the applicant wished to pursue an intensive drug rehabilitation program. At some stage before he was sentenced a typed letter from the applicant was provided to the learned magistrate. In that letter he spoke of his experience in prison, that he hated it and was scared of the place.
The applicant was sentenced to a term of imprisonment of 15 months from 14 November 2012 with an order that he not be eligible for parole until he had served nine months of that sentence. A probation order was made for a period of 12 months from release with special conditions. An order was made disqualifying the applicant from driving for 12 months from his release from prison.
Discussion
The applicant was to be sentenced for a significant number of offences which undoubtedly resulted in loss to, and trouble for, a significant number of motor vehicle owners. As the learned magistrate rightly said, he had displayed a "continuing disregard for the law and for the personal and property rights of others". However, it needed to be borne in mind that the offending was confined to a period of several days, and that the combined financial loss suffered by the victims was not substantial. He had a lesser role than his co-offender and he was not the driver on most occasions. His frank admissions to police had resulted in him being charged for offences which would not otherwise have come to light.
The offence of common assault was unprovoked and could have resulted in a significant injury.
There were matters in mitigation regarding the applicant's circumstances that needed to be reflected in the penalty. A prominent consideration was that, as an 18 year old, he was a youthful offender. He had pleaded guilty, and although that was at a late stage of the prosecution, it still has some mitigating effect. He had not served a term of imprisonment before and there was a prospect that his experience of prison may be effective as a deterrent. He had a desire to address a drug addiction and had expressed a willingness to participate in an intensive drug program.
Undoubtedly, the applicant had shown a poor attitude to opportunities to engage in rehabilitation measures in the past. As noted in the pre-sentence report, he had been involved in an "inter-agency support panel" and referred to many services, namely, Child and Adolescent Mental Health Services, White Lion, Youth Futures, Forensic Mental Health Services, Radar, and Alcohol and Drug Counselling, with little success. In regard to his expressed wish to participate in drug programs, there was a real prospect that his wish for further opportunities in this regard may not translate into action. Notwithstanding that prospect, as a youthful offender, there was hope for reform. In light of his immaturity, it was best that he not be exposed to the corrupting influences of prison for any longer than necessary to achieve the court's sentencing objectives.
It is significant that he had not served a term of imprisonment before. At the time he was sentenced the applicant had spent approximately four months in prison on remand. He stated that he was finding prison a most difficult experience. The thought of returning to prison may be, for him, an effective deterrent. From the community's perspective, the important matter is that he stop offending. Whilst it is unlikely that he would do so for altruistic reasons or springing from a sudden development in his maturity and moral outlook, there was, at the time of sentencing, the prospect he may do so, simply to avoid further imprisonment.
I may only uphold the motion to review if it can be inferred that in some way there has been a failure properly to exercise the sentencing discretion, House v R (1936) 55 CLR 499 at 504. The learned magistrate evidently took the view that a stern sentence was required. It was within the proper exercise of his wide discretion to impose a period of actual imprisonment, notwithstanding the applicant's youth. However, I have reached the conclusion that a term of 15 months' imprisonment as a wholly effective term was manifestly excessive in the circumstances of this case. It was a case which warranted a partially suspended sentence in light of the applicant's age and to allow for the potential that the applicant would be effectively deterred by serving part of the sentence.
The notice to review is upheld. I will set aside the orders of the magistrate imposing 15 months' imprisonment with a non-parole period of nine months and a separate probation order. In place of those orders, I impose the same head sentence of 15 months' imprisonment backdated to the same effective date of 14 November 2012, but the balance of that period from today is suspended on condition that he commit no offences punishable by imprisonment for a period of 18 months. A further condition is that he be subject to supervised probation for that same period and he is to report immediately to a probation officer. Special conditions attach to that probation order as follows: he must attend educational and other programs, undergo assessment and treatment for alcohol or drug dependency, submit to drug or alcohol testing, and submit to medical, psychological or psychiatric assessment or treatment as directed by his probation officer or treating medical practitioner.
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