Debono v The Queen
[2016] VSCA 16
•19 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0191
| MICHAEL DEBONO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 February 2016 |
| DATE OF JUDGMENT: | 19 February 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 16 |
| JUDGMENT APPEALED FROM: | DPP v Debono (Unreported, County Court of Victoria, Judge Hannan, 30 June 2015) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary, conspiracy to commit aggravated burglary and theft – Sentenced to 2 years’ imprisonment and 3 year community correction order with conditions – No non-parole period fixed – Statutory requirement to fix non-parole period – Sentencing discretion miscarried – Resentenced to 22 months’ imprisonment and 3 year community correction order with conditions – Sentencing Act 1991 s 11.
CRIMINAL LAW – Sentence – Community correction order – Combination sentence – Whether non-parole period should be fixed with community correction order – Sentencing Act 1991 ss 11, 44 – Boulton v The Queen [2014] VSCA 342; Deng-Mabior v The Queen [2015] VSCA 179; Baldwin v The Queen [2015] VSCA 299.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr J D Kantor | Theo Magazis & Associates |
| For the Crown: | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
McLEISH JA:
The applicant (now aged 31) pleaded guilty to one charge of aggravated burglary, one charge of conspiracy to commit aggravated burglary and two charges of theft. He was sentenced in the County Court on 30 June 2015 as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated Burglary [Crimes Act 1958 s 77(1)] | 25 years [Crimes Act 1958 s 77(2)] | 18 months’ imprisonment and 3 year CCO | Base |
| 2 | Theft [Crimes Act 1958 s 74] | 10 years [Crimes Act 1958 s 74(1)] | 3 year CCO | |
| 3 | Conspiracy to commit Aggravated Burglary [Crimes Act 1958 ss 77(1) and 321(1)] | 25 years [Crimes Act 1958 ss 77(2) and 321C(1)©] | 18 months’ imprisonment and 3 year CCO | 6 months’ imprisonment |
| 4 | Theft | 10 years | 3 year CCO | |
| Total Effective Sentence: | 2 years’ imprisonment and 3 year Community Correction Order | |||
| Non-Parole Period: | N/A | |||
| Pre-sentence Detention Declared: | 80 days | |||
| 6AAA Statement: | 6 years’ imprisonment with a non-parole period of 4 years | |||
The conditions attached to the community correction order (‘CCO’), apart from the mandatory conditions, were that the applicant perform 100 hours of unpaid community work over a period of 3 years, must be under the supervision of a community corrections officer for a period of 3 years, and must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, and undergo mental health assessment or treatment and participate in programs or courses, as directed.
One of the applicant’s co-offenders, Trent Vitiello, pleaded guilty to aggravated burglary (related to Charge 1) and was sentenced in the County Court to 20 months’ imprisonment. He was also sentenced for a breach of a CCO at the same time.[1] The other co-offenders have not been charged.
[1]Plea transcript, DPP v Debono (Unreported, County Court of Victoria, Judge Hannan, 30 June 2015) 14 (‘Plea’).
The applicant seeks leave to appeal on a single ground, that the total effective sentence imposed is in error for failure to fix a non-parole period. The Crown accepts that there was sentencing error and that the applicant should be re-sentenced. It is convenient to turn immediately to the error.
The requirement that a non-parole period be fixed is found in s 11 of the Sentencing Act 1991 (‘the Act’), which relevantly provides:
11 Fixing of non-parole period by sentencing court
(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
(2)If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.
(3)A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.
When the CCO regime was introduced, s 44 of the Act provided that a CCO could only be combined with a sentence of imprisonment of three months or less. In that context, there was never a possibility that s 11 could operate to require the fixing of a non-parole period in respect of a sentence of imprisonment imposed together with a CCO. Such a requirement would have given rise to ‘significant conceptual and practical difficulties’ since, although the purposes of parole and a CCO significantly overlap, there are important differences in the systems of supervision which each of them involves.[2] They should therefore ordinarily be treated as sentencing alternatives.[3]
[2]Boulton v The Queen [2014] VSCA 342 [199] (‘Boulton’); Manariti v The Queen [2015] VSCA 150 [36]–[37]; Baldwin v The Queen [2015] VSCA 299 [9] (’Baldwin’).
[3]Boulton [2014] VSCA 342 [199].
Section 44 was later amended to enable a CCO to be combined with a sentence of imprisonment of up to 2 years.[4] As this Court pointed out in Deng-Mabior v The Queen,[5] the Explanatory Memorandum accompanying the amending Bill made it plain that the amending provision was not intended to change the operation of s 11. The Explanatory Memorandum stated as follows:[6]
New section 44(1) provides that when sentencing an offender in respect of one, or more than one, offence (other than an ‘arson offence’), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all terms of imprisonment to be served (after deduction of pre-sentence detention under section 18) is two years or less.
Given the operation of section 11 of the Sentencing Act 1991, this means that an offender may receive a sentence of imprisonment in respect of which a non-parole period has been fixed, and then be required to complete a community correction order. Under section 11(1), if a court sentences a person to be imprisoned for a term of two years or more, [the] court must fix a non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. If the term of imprisonment is less than two years but not less than 12 months, the court may fix a non-parole period. These amendments do not affect the courts’ discretion as to whether a non-parole period should be fixed in these circumstances.
[4]Sentencing Amendment (Emergency Workers) Act 2014.
[5][2015] VSCA 179 [34] (‘Deng-Mabior’).
[6]Explanatory Memorandum, Sentencing Amendment (Emergency Workers) Bill 2014 11–12.
The Court further observed in Deng-Mabior, which was decided after the present applicant was sentenced, that the amending provision had produced the unintended consequence that, where a CCO was imposed along with a sentence of imprisonment for the new maximum period of 2 years, s 11 now required the fixing of a non-parole period in respect of that term of imprisonment.[7] While s 44(3) of the Act contemplates a CCO commencing on the completion of any parole period, it was plainly not the legislative intention that when a Court imposes a CCO along with a sentence of 2 years’ imprisonment, but not any lesser period, it must also provide for eligibility for parole. Such a result would be arbitrary and anomalous.
[7][2015] VSCA 179 [4]–[6], [37]–[38].
Nonetheless, the effect of s 11(1) is that, where a sentence of 2 years or more is imposed, a non-parole period must be fixed unless either ‘the nature of the offence’ or the ‘past history of the offender’ make it inappropriate to fix such a period. The sentencing judge made no reference to these considerations. The Crown did not contend that there was anything about the nature of the offence or the applicant’s past history which would have made the fixing of a non-parole period inappropriate.[8] No question of applying the statutory exceptions therefore arises. It may be assumed that the judge was proceeding, consistently with the position explained in Boulton v The Queen[9] and referred to above but contrary to the terms of s 11, that a CCO and a non-parole period are to be treated as alternatives.
[8]Hunter v The Queen (2013) 40 VR 660, 662 [6], 687 [114]; Baldwin [2015] VSCA 299 [12]–[16].
[9][2014] VSCA 342 [199].
In its written submissions, the Crown initially contended that s 11(1) did not require the fixing of a non-parole period in the present case, because, while the total effective sentence was 2 years or more, the sentences in respect of each offence were for periods of less than 2 years. It was submitted that s 11(1) looks to the sentence for each individual offence, rather than the total effective sentence.
Before the matter came on for hearing, the Crown withdrew this submission, on the basis that the construction it had advanced was contrary to the ‘usual approach’ taken to the interpretation of s 11, and would have consequences which could give rise to ‘considerable unfairness’. This submission may be taken as indicating that s 11 is usually interpreted as operating by reference to the total effective sentence, rather than the sentences on each individual charge. Such an approach is consistent with the reasoning in at least one decision in the Trial Division, to which the written argument referred.[10] In place of the previous submission, the Crown conceded that the sentencing judge had either failed to fix a non-parole period as s 11(1) required, or had failed to provide reasons for not doing so.
[10]Harding v County Court of Victoria [2013] VSC 711 [9]–[37].
The Court should act on the Crown’s concession. In the absence of any argument as to the proper construction of s 11, it is appropriate to approach the present application on the assumption that the ‘usual approach’ referred to by the Crown is correct and that the judge was in error in one of the ways described. The question whether or not the ‘usual approach’ is correct need not now be determined.
Before turning to the sentencing of the applicant, it may be noted that this is at least the third time that the anomaly identified in Deng-Mabior has now come before this Court.[11] It may be hoped, as the Court in Deng-Mabior urged,[12] that the legislature will rectify the position as soon as practicable.
Circumstances of the offending[13]
[11]The other case is Baldwin [2015] VSCA 299.
[12][2015] VSCA 179 [6], [38].
[13]This summary offending is based on the Summary of Prosecution Opening for Plea (Exhibit A).
On 8 July 2013, the applicant’s ex-partner’s parents were the victims of an aggravated burglary. Three men carrying firearms forced their way into the house. Two of them were wearing masks. Guns were pointed at the occupants and the offenders demanded to know where ‘the safe’ was. The men eventually left after taking a wallet, phone and ipad. Both victims were restrained with duct tape or cable ties and the male victim suffered scratches, bruises and welts to his wrists. Part of his left ear had to be sewn back together.
In the days prior to the burglary, the applicant had called his ex-partner and asked if their daughter was at her parents’ house, and ascertained when she would return home. After the burglary, the applicant’s phone was subject to an intercept from 18 September to 1 October 2013. During that time he made admissions to being involved in the burglary. The prosecution case was that the applicant was part of a joint criminal enterprise to enter the house and steal money and/or drugs from the victims and that he was involved in organising the offending. It was not alleged that he was one of the three men who entered the house, or that he knew that the offenders would be armed. But it was alleged that he knew, or was reckless as to whether, the victims would be present at the house (charge 1 – aggravated burglary).
Charge 2 (theft) alleged that on or about 26 July 2013 the applicant stole a Jayco Campervan.
In relation to charge 3 (conspiracy to commit aggravated burglary), telephone intercepts recorded the applicant planning to commit a burglary with an associate. The victims were unknown to the prosecution. The circumstance of aggravation was that the offenders knew or were reckless to the fact that other people may be present during the planned burglary. During the course of the conspiracy, the applicant made arrangements to obtain a firearm from another associate. The parties agreed to commit the burglary but were unable to fix a time, or did not commit it for other reasons.
Charge 4 (theft) alleged that the applicant stole a SeaJay outboard boat and trailer shortly after midnight on 1 October 2013. The police executed a search warrant on the applicant’s premises on 1 October 2013 and located the boat and trailer, as well as the number plates belonging to the campervan.
The applicant pleaded guilty to the two theft charges at a committal hearing. The whole matter proceeded by way of hand-up brief. Negotiations on the aggravated burglary and conspiracy to commit aggravated burglary charges ultimately resulted in a plea of guilty to those charges on what would have been the first day of trial.[14]
[14]Plea 14.
Sentencing remarks
The sentencing judge observed that the applicant was not to be held responsible for the violence committed during the offending on charge 1, but that he used his knowledge of the premises from when he had lived there with his ex-partner to facilitate the offending. She noted that he had subsequently described what had occurred as ‘funny’.[15]
[15]Sentencing Remarks, DPP v Debono (Unreported, County Court of Victoria, Judge Hannan, 30 June 2015) [3].
The judge noted that the offending was serious, particularly as it related to charges 1 and 3. She rightly stated that the maximum penalty for aggravated burglary demonstrates the serious nature of such offending and that the charges were serious examples of this type of offending. The applicant’s conduct had seriously compromised the right of people to feel safe in their homes.[16]
[16]Ibid [11].
The applicant admitted a criminal history for which he received a good behaviour bond for burglary, theft, criminal damage, failing to answer bail and going equipped to steal in the Sunshine Magistrates’ Court in September 2004. There was also a subsequent matter of theft of an earthmover and trailer for which the applicant received a CCO in the Melbourne Magistrates’ Court on 3 September 2014.[17]
[17]Ibid [13]–[14].
The applicant was aged 28 or 29 at the time of the offending and aged 30 at the time of sentence. The judge took account of the applicant’s family and employment history, including the fact that he was sexually abused by a family friend during his childhood and had lost everything at the age of 21 when his uninsured home burned to the ground. He separated from his partner soon afterwards. Around the same time he was hospitalised for two weeks after falling asleep in front of a gas heater.[18]
[18]Ibid [15]–[16].
The applicant started using drugs in 2009. His substance abuse included ice, ecstasy, amphetamine, cocaine and cannabis and prescription medication. The applicant lost his concreting business in 2012 to 2013 and subsequently found work as a contract concreter. The reports tendered in court opined that the applicant would require drug and alcohol treatment as well as treatment for depression and anxiety on a long term basis.[19]
[19]Ibid [17].
The judge noted that the applicant had two children, then aged 12 and 3, to two different partners. His partner and mother supported him in court.[20]
[20]Ibid [18].
A report by Mr Ian McKinnon, a forensic and consultant psychologist, was taken into account, including findings that the applicant was of normal intelligence but had degraded memory problems which were more emphasised in his short term memory function. Mr McKinnon considered a number of possible causes, including the applicant’s hypoxic event with the gas heater, emotional issues, substance abuse and history of trauma. Mr McKinnon initially thought the applicant may have a diffuse acquired brain injury (‘ABI’) but accepted that the contrary expert opinion of Dr Hughes, referred to below, may be correct. Mr McKinnon also assessed the applicant as suffering from mixed anxiety and depression disorder of moderate strength, and a polysubstance dependence disorder, partly in remission. He noted that the applicant’s substance abuse affected his ability to reason and make sound judgments. Mr McKinnon believed the applicant to be at risk of relapse into drug abuse.[21]
[21]Ibid [20].
Dr Melissa Hughes, a clinical neuropsychologist, did not find that the applicant’s neuropsychological profile was consistent with an ABI due to a traumatic episode and considered it unlikely that the applicant had a substance abuse-induced ABI. She found that the applicant’s selective cognitive weaknesses were probably related to his description of extreme levels of depression, anxiety and stress. Dr Hughes was of the opinion that the applicant’s level of cognitive functioning was likely to impact the burden of custody.[22]
[22]Ibid [21].
The judge noted that Mr Andrew Guy, a drug clinician at Voyage Alcohol and Drug Service, had written a report indicating that in the past the applicant had sought to deal with issues underpinning his offending.[23]
[23]Ibid [22].
The sentencing judge also took into account a report from clinical neuropsychologist Dr James Campbell from 2013, who had opined that the applicant’s cognitive profile was consistent with an ABI of multifactorial origin. Dr Campbell was not of the view that the applicant’s cognitive weaknesses were wholly explained by psychological factors alone, and was of the view that some deficits were permanent. However, his view was that if the applicant ceased drug use his cognitive skills would return to a baseline level.[24]
[24]Ibid [23].
The judge considered that the applicant was still a youthful offender and that his rehabilitation must be given weight.[25] She assessed his prospects of rehabilitation as positive given his relative lack of criminal history, but said that he would need to properly address the issues underpinning his offending.[26]
[25]Ibid [26].
[26]Ibid [24].
Both the prosecution and the defence agreed that the appropriate sentence was one of immediate imprisonment, combined with a CCO.[27]
[27]Ibid [27].
Resentencing
For the reasons already set out, the judge’s failure to fix a non-parole period means that the exercise of the sentencing discretion miscarried. The sentence must be set aside, and the applicant resentenced.
Inevitably, the Court considered the possibility of resentencing the applicant to a term of imprisonment combined with a CCO. For the fresh exercise of the sentencing discretion, it was necessary for the Court to obtain a pre-sentence report.[28]
[28]See the Act ss 8A(2), 37(b).
The report subsequently prepared by a community corrections officer assessed the applicant as suitable for a CCO. It recommended that the following conditions be attached, being those which the sentencing judge imposed:
(a) conditions requiring assessment and treatment for the applicant’s drug and alcohol abuse and dependency;
(b) a mental health assessment condition;
(c) a condition requiring the applicant to perform unpaid community work;
(d) a condition requiring the applicant to participate in offending behaviour programs; and
(e) a supervision condition.
We are satisfied that the prison term should be combined with a CCO with those conditions attached. The applicant has signified his consent to that order being made.
The applicant submitted that the Court should take account of the fact that the applicant has not come to the adverse attention of the prison authorities and has lived conscientiously in a low security unit and worked as a food billet. He has tested negative in successive drug tests. He has undertaken two 12 week parenting courses and continues to have the support of his mother and his partner, who is the mother of his now 4 year old daughter. The applicant’s abstinence from drugs and alcohol while in custody has contributed to an improved mental state.
The Crown submitted that the term of imprisonment that was required to be served was a lenient one for offending of the seriousness concerned. It was submitted, however, that a term of imprisonment of a similar order, together with a CCO, was called for.
Given the Crown’s acceptance at the plea hearing, and on the appeal, that a CCO with a term of imprisonment was appropriate, the sentence of imprisonment imposed by the judge was the maximum possible under the Act. It is difficult to characterise the sentence of imprisonment in the circumstances as lenient. It is also to be recalled that the CCO itself is intended to be punitive.[29]
[29]Boulton [2014] VSCA 342 [90]–[97].
We consider that there should be a small reduction in the term of imprisonment in order broadly to reflect the intention of the judge, consistent with the submissions that were made at the plea hearing, that there be a CCO combined with a sentence of imprisonment. The reduction should be small because we agree with the sentencing judge that the offending in this case was serious. But for the anomalous operation of s 11, the sentence of 2 years would have been appropriate, for the reasons the sentencing judge gave. The term of imprisonment should be reduced by two months.
Our reasons for reducing the custodial term are, in short:
(f) we accept the applicant’s counsel’s submissions that the applicant has been a conscientious prisoner and that the undertaking of parenting courses indicates a positive approach towards his rehabilitation;
(g) we also accept the submission that the applicant’s experience of prison has enabled him to abstain from drugs and alcohol and that this has been beneficial to his mental state;
(h) the protection of the community, and the applicant’s prospects of rehabilitation, depend on him being treated for his drug and alcohol dependency, which can be better achieved under the conditions of a CCO than in custody; and
(i) taking into account the punitive and deterrent effect of the CCO itself, and consistently with the manner in which sentencing was approached by all parties both at the plea and on the appeal, no longer period of imprisonment is required to serve the relevant purposes of sentencing.[30]
[30]The Act s 5(4C).
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