Director of Public Prosecutions v Turnbull
[2007] VSCA 251
•13 November 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 216 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LEE TURNBULL |
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JUDGES: | MAXWELL P, NETTLE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 November 2007 | |
DATE OF JUDGMENT: | 13 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 251 | |
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Criminal Law – Sentencing – Crown appeal – Armed robbery and intentionally causing serious injury – Manifest inadequacy – Youthful offender with multiple appearance history – Good indications of rehabilitation shown since Youth Training Order imposed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P G Priest QC with Mr L C Carter | Victoria Legal Aid |
MAXWELL P:
I will ask Nettle JA to deliver the first judgment.
NETTLE JA:
This is a Crown appeal against a total effective sentence of 18 months' detention in a youth justice centre imposed on the respondent on pleading guilty to one count of armed robbery and one count of intentionally causing serious injury.
The respondent was born on 16 November 1998 and thus, at the time of committing the offences on 18 April 2007, he was 18 years of age. The victim of the offences was also a young man. He was walking along Cato Street, Prahran at approximately 11.30 p.m. at night on the way to meet a friend in Commercial Road. As he passed the front entrance to the Safeway supermarket, the respondent walked within a few metres of him and called him ‘a faggot’. The victim ignored the insult and kept walking, but the respondent called him ‘a faggot’ again. The victim turned and looked momentarily at the respondent, and then turned ahead and continued to walk on. The respondent then screamed at the victim, ‘What do you have on you?’, and in response to that the victim turned and replied that he did not have anything on him. At that point, the respondent produced a knife and demanded that the victim hand over his ‘bum bag’, which the victim did. It contained a black LG Chocolate model mobile telephone, a set of mobile telephone headphones, a mobile telephone charger, an ATM card and some $160 in cash (count 1 – armed robbery).
Despite the victim's compliance with the respondent's demand, however, the respondent then swung the knife at the victim, striking him twice, once to the chest and once to the right shoulder. In fear of further attack, the victim put up his arms and fell deliberately to the ground. The respondent continued to swing the knife at him, and struck him again to the right forearm. Then the respondent kicked the victim several times as he lay on the ground and then the respondent ran away (count 2 – intentionally causing serious injury).
The victim was taken to the Alfred Hospital, where he received approximately 10 sutures to the incised injury to his chest and approximately 20 to 30 sutures to the incised injury to his arm, as well as treatment for an injury to his right wrist. In his victim impact statement he reported that the attack had left him with major scars on his upper arm (bicep) and chest (collarbone) that will require surgery so that he can continue to work as a waiter, and that, because he was incapacitated for work, he has now gone through all of his savings. He fears walking alone at night and he is no longer prepared to trust people in the streets.
Other offences committed by the respondent
These offences were not the first offences of which the respondent has been found guilty, and he has committed one other since. On 24 October 2003 he was dealt with before the Children's Court on one charge of theft and one charge of failing to answer bail. Those offences were found proven and the matter was adjourned to 23 July 2004 to enable a pre-sentence report to be obtained. When the report dated 20 July 2004 was later provided, it said that the respondent was a pleasant young man who was capable of engaging in conversations that illustrated his capacity to understand the consequences of his actions on himself, the victims and the broader community, and that he and his family had independently made changes to minimise the risk of continued offending. On that basis, he was sentenced to be released on entering into an undertaking to be of good behaviour for a period of six months.
On 10 March 2004 he was dealt with before the Children's Court and fined $100 for unlawfully crossing a railway line.
On 12 March 2005 he was found guilty before the Children's Court of two counts of failing to answer bail, one charge of theft and one of being an unlicensed driver. In a report from Central Melbourne Psychology dated 9 July 2005, Mr Patrick Newton, a forensic consulting psychologist, stated that the respondent expressed remorse and felt ashamed of what he described as his ‘cowardly’ and ‘foolish’ actions and desired to make restitution and apologise to the victim. Anger management, personal counselling, alcohol education and training and further education were said to be important components of any treatment plan. The respondent was thus sentenced to pay fines of $150 on the first and second charges and, in respect of the third and fourth charges, was put on a bond to be of good behaviour for a period of 12 months.
The respondent next came before the Children's Court on 22 July 2005 on one charge of armed robbery, and that charge was found proven. On that occasion he was sentenced to be released on probation for a period of 12 months on the special condition that he attend anger management counselling, personal counselling, alcohol education and counselling, and education and training courses. But, as appears from the Juvenile Justice Program report dated 5 October 2006, the respondent's initial compliance with that probation order was so unsatisfactory that he was given a warning on 23 November 2005.
On 29 March 2006, the respondent appeared before the Children's Court on one charge of theft committed on 22 October 2004 and one charge of unlicensed driving between 14 October 2004 and 2 November 2004. Those charges were also found proven and the matter was adjourned to enable preparation of a pre-sentence report. In the subsequently provided report dated 20 February 2006 it was said that it had become ‘highly evident’ to the writer that the respondent felt remorse over his actions, that he hated going to court and had expressed a strong desire to complete his probation order. On that basis it was recommended that the judge confirm the respondent's current parole order pursuant to s 160 of the Children and Young Persons Act1989. In the result, the respondent was sentenced to pay a fine of $150 on the charge of theft and being an unlicensed driver and he was sentenced to be released on entering into a bond in the sum of $250 to be of good behaviour for a period of 12 months.
The respondent was next dealt with before the Children's Court on 5 June 2006 on one charge of causing wilful damage, one count of recklessly causing injury, one count of theft and one count of throwing a missile so as to endanger a person. On that occasion he was sentenced to be released on probation for a period of six months on special condition that he attend anger management counselling, personal counselling, alcohol education counselling and education training courses.
The respondent came before the Children's Court again on 10 October 2006, on that occasion on one charge of theft, one charge of unlawful assault, one charge of hindering a police officer in the lawful execution of his duty, and charges of using indecent language and failing to produce a valid ticket upon request. On that day, the court had before it a Juvenile Justice Program report dated 10 October 2006 in which it was said that the writer of the report had recently assumed case management of the respondent and that the respondent had since attended all scheduled juvenile justice supervision appointments. In the writer's opinion, the respondent had displayed considerable remorse for his past offending behaviours and was able to acknowledge the impact that his offending would have had on the victims and on the broader community. He had re-commenced counselling with a psychologist following a period of non-compliance, and according to the psychologist, the respondent had shown a great deal of commitment to his counselling sessions and was participating well. It was also noted that the respondent had enrolled in a VCAL building and construction course at the Box Hill TAFE, which he was attending four days per week, and it was said to be expected that he would complete the course in November 2006 and thus qualify for a year 11 pass and a pre-apprenticeship qualification in building. The report concluded that the respondent was demonstrating considerable remorse for his offending behaviour and had demonstrated positive rehabilitative prospects in the community, and verbalised a willingness to access Juvenile Justice on a voluntary basis until the outcome of court appearance was known. On that basis the respondent was sentenced to be released on probation for a period of six months.
Six months later, however, the respondent committed the offences the subject of this appeal, and then, a few hours after running away from the victim, he went with others to a nightclub in Prahran where he committed another offence of intentionally causing injury. He was dealt with for that offence before the Magistrates' Court on 22 May 2007 and sentenced to a six-month youth justice centre order.
Custodial Progress Reports
In sentencing the respondent for the subject offences, the judge had the benefit of two Custodial Progress Reports dated respectively 11 May 2005 and 25 June 2006. According to those reports, the respondent comes from a dysfunctional family background. His father was an alcoholic who subjected his mother to violence until they separated some years ago. His mother was addicted to heroin. He himself had a substance abuse history going back to the age of 12 and had been drinking alcohol on a regular basis since the age of 15. He had started experimenting with amphetamines when he was 14 and graduated to usage at the rate of one quarter of a gram in four to five days. Since 2004 there had been periods when he would stay up for several days while either using speed of methamphetamine, and he used ecstasy on occasion. As appeared from earlier reports, things had been better when he was studying at TAFE in 2006. During that period, he was housed in Greensborough and was actively involved in sporting activities in out of school hours. He had worked hard and well throughout the course and successfully completed it, thereby qualifying for a year 11 pass and admission to apprenticeship. But after completing the course in November 2006, he had returned to live with his mother in Housing Commission flats in South Yarra and begun again to associate with his peers from the flats, all of whom it was said had significant criminal histories and substance abuse issues.
From there the situation went down hill rapidly. He began drinking an average of twelve cans of full strength beer a day with occasional binge drinking. He offended when drug affected and he offended to get drugs. The risk behaviours associated with his substance abuse included becoming violent when substance affected, driving under the influence of drugs, and suffering memory loss when using drugs. The writer of the report said that she had made numerous attempts to encourage the respondent to engage in the day program and keep appointments which she had made for him at the local Job Placement, Education and Training Program, but the respondent's motivation had continued to decrease. On 21 February 2007, he disclosed having difficulty managing his substance use and an appointment was made for him on 2 March 2007 to attend a drug and alcohol assessment with the Youth Substance Abuse Service Youth Residential Detoxification Program in Fitzroy. But, on 28 February 2007 he reported that he had reduced his substance use and no longer felt it necessary to access a drug and alcohol detoxification facility. Then came the subject offences.
Once again, however, after his arrest, the respondent was said to have exhibited a high standard of behaviour, initially in the admissions unit and later after being transferred to the Lauriston Unit on 21 June 2007. According to the writer, the respondent was currently in a contemplative stage of change in relation to his substance abuse, which it was said was demonstrated by his acknowledgment that he had a substance abuse problem. Although it was noted that he struggled fully to comprehend the problem or see its cause, and his commitment to change seemed unclear, it was said that there were also some statements indicating remorse and guilt for his offending. The report added that, in the three weeks which the respondent had spent in the Lauriston unit, he had managed both his behaviour and his interactions with staff and peers at a high standard, and had enrolled in and participated consistently in woodwork, horticulture, forklift and bobcat licence training, red card, and numeracy and literacy programs offered in the unit.
The judge’s sentencing remarks
In his sentencing remarks, the judge referred to the serious nature of the subject offences, the need for general and specific deterrence and denunciation, as well as the need, particularly in the case of young offenders, to keep rehabilitation steadily in mind. His Honour also made mention of oral evidence given at the plea by Ms Tessa Leatham, a case manager with the Department of Human Services, that the respondent had been assessed as being a suitable candidate for a youth justice centre order. His Honour said that he agreed with that assessment. He sentenced the respondent accordingly, on the count of armed robbery to a period in a youth justice centre of 15 months, and on the count of intentionally causing serious injury also to a period in a youth justice centre of 15 months, of which three months was to be served cumulatively on the sentence imposed on the count of armed robbery.
The Crown contentions
The Director contends that the individual sentences and the total effective sentence were manifestly inadequate, bearing in mind in particular that the offence of armed robbery was committed in a public street at night, the victim was a soft target (in the sense that he was a young person walking alone), that there was the risk of injury resulting from the use of a knife, that the applicant used homophobic taunts to humiliate the victim, and that the respondent had been found guilty and punished for a previous offence of armed robbery as well as the numerous other offences to which I have referred.
In support of that contention, counsel for the Director emphasises a number of admissions by the respondent in his record of interview, including the following:
(a)Q.38 “… he handed over his bum bag and a mobile phone.
And I started to assault him.”;
(b)Q.39 “Punching him and trying to stab him or something.”;
(c)Q.102 “I guess I was probably out looking for a fight”;
(d)Q.104 “Got no reason for that to be honest”;
(e)Q.117-122 Hit him and tried to stab him;
(f)Q.127-132 No reason for the assault;
(g)Q.145-147 Didn’t care about victim’s pleas; kept up assault when
the victim was on the ground;
(h)Q.245 Calling the victim “a faggot”;
(i)Q.249-253 Attack unprovoked; could cause scarring for life;
(j)Q.260-265 Description of use of knife;
(k)Q.270 Ran off without giving assistance;
(l)Q.276 “…very wrong, cos it’s an innocent person who done
nothing wrong.”; and
(m) Q.366-376 No reason for inflicting injuries.
Counsel for the Director stresses the gratuitous and savage nature of the assault and submits that it calls for a significant term of incarceration to reflect the need for general deterrence and more particularly specific deterrence in view of the respondent's propensity to re-offend after being dealt with leniently in the past.
In the Director's counsel's submission, it is also plain that the sentence imposed on the count of intentionally causing serious injury should have been wholly cumulated on the sentence imposed on the count of armed robbery because, as counsel put it, there was no connection between the two offences and because the gratuitous nature of the count of intentionally causing serious injury greatly increased the culpability of the respondent's overall criminal conduct.
In summary, the Crown contends that the judge manifestly failed to reflect the gravity of the offences generally and in this particular case, failed to take into account the need for general deterrence, failed to give sufficient weight to the need for specific deterrence, gave insufficient weight to the maximum penalty and too much to factors going in mitigation, and failed to heed the submissions advanced on behalf of the Crown below.
Respondent’s contentions
Counsel for the respondent argues that the judge did not fail to give sufficient weight to any of the factors identified by the Crown, but, to the contrary, expressly took into account all of the aggravating considerations to which the Crown refers. Further, as counsel for the respondent puts it, there is no basis for the Crown's contention that the judge was bound to order total cumulation of the two sentences, given that the prosecutor below invited the judge to order total or partial cumulation. In any event, it is said, the presumption in favour of concurrency is capable of running a considerable way even in circumstances of this kind.
Additionally, as counsel for the respondent points out, it is simply not the case that all previous attempts at reformation have failed. Rather, despite the latest lapses, the respondent has succeeded at TAFE and has shown promise after being transferred to Malmsbury, and there is still a good chance of further rehabilitation.
Moreover, in counsel's submission, there is a high public interest in maximising the respondent's continued rehabilitation in the current setting rather than placing the gains at risk in the environment of adult prison; and counsel adds in support of that conclusion a recent opinion of Ms Carla Lechner, consultant clinical and forensic psychologist, dated 22 October 2007, as to the deleterious consequences of moving the respondent into adult gaol.
Ms Lechner reports that the respondent impresses as cognitively and emotionally immature, but with a growing ability to reflect on the impact that his behaviour has on both himself and on others. He tends to be impulsive in nature and to have a low tolerance for frustration, but seems to be learning to inhibit his impulses. He currently reflects a range of symptoms of depression, being confirmed by a score at the top of the ‘mild’ range of the Beck Depression Inventory. In Ms Lechner's opinion, he also evidences residual post-trauma symptoms the results of sexual abuse to which he was subjected between the ages of six and eleven. From all accounts, however, he is responding well to rehabilitation programs offered in the Youth Justice Centre. He has not engaged in any aggressive behaviour and he has remained drug and alcohol free and mixes well with staff and co-residents. He states that he feels physically and mentally healthy and feels positive about his future. He expresses shame and regret for his offending behaviour and appropriate empathy. Ms Lechner states that if the respondent were to be transferred to an adult gaol, his access to therapeutic programs would be severely reduced and the gains made to this point could be potentially undermined. The transfer to independent living in the community would also be more stark and he would have to associate with older and more seasoned criminals. Based on her experience as a consultant psychologist at the Children's Court for the past 16 years, Ms Lechner considers that, for the purposes of rehabilitation, a Youth Justice Centre is in this case much to be preferred.
Thus, it is contended for the respondent that, despite the serious nature of the offences, the youth justice centre order which the judge made was an appropriate disposition in the circumstances of this case.
Sentence not manifestly inadequate
I acknowledge the force of the Director's contentions. Other things being equal, these offences would warrant a substantial term of imprisonment. The court has said repeatedly that those who commit serious violent offences while under the influence of alcohol or drugs must ordinarily expect condign punishment. In most such cases, general deterrence is the principal sentencing consideration and, in this case there is also a need for specific deterrence. As I have noticed, the respondent has had plenty of chances to mend his ways, and thus far he has squandered them. Despite the optimism expressed by Ms Lechner and the other psychologists and case workers who have assessed him, his history also implies there is a fair chance that he will re-offend. To that must be added that the risk behaviours associated with his substance abuse include becoming violent when substance-affected, driving under the influence of drugs and suffering memory loss when using drugs and alcohol. It suggests that if the respondent does re-offend, the offence is likely to be a violent offence or at least one which is otherwise productive of bodily injury.
As against that, however, authority is clear that the incarceration of young persons in adult prison should be avoided if possible, for the obvious reason that an adult gaol has the potential to cause damage of a kind for which the offender and the community will pay dearly in the long run.[1] Hence, in most such cases rehabilitation remains the primary consideration, so long as there is a realistic chance of rehabilitation.[2]
[1]R v Misokka (Unreported Victorian Supreme Court of Appeal, 9 November 1995, [10]; DPP v Tokava [2006] 156, [21]-[23].
[2]R v Mills [1998] 4 VR 235, 241.
Consequently, in this case the judge faced a particularly difficult sentencing task. Given the respondent's recidivism and the risks associated with the possibility of his re-offending, there was reason to doubt the utility of any sentence other than imprisonment. But, as against that, the judge had to balance the goal of rehabilitation and through it the object of long-term community protection.
Evidently, his Honour took the view that there was a point in persisting, and (bearing in mind the advances made by the respondent since being transferred to the Lauriston Unit and Ms Leatham's prognosis) it seems to me, with respect, that it was a view open to the judge to come. Despite the respondent's deficits and his predilection for the excessive consumption of alcohol and the abuse of illicit drugs, his success at TAFE, and his ability to live a useful and productive life when kept away from drugs and other deviant influences demonstrates that he does have the intellect and occasionally the drive to make something of himself. Plainly enough, the judge had that foremost in mind and, if I may say, it seems to me that Ms Lechner's most recent report bears out the wisdom of his Honour's disposition.
There is no doubt that this sentence is merciful. I am inclined to think that the gratuitousness of the violence involved in the offence of intentionally causing serious injury may well have warranted a longer period of youth detention. But I am not persuaded that his Honour was in error. Despite the merciful nature of the sentence, I do not consider that it is so manifestly inadequate as to bespeak error in principle. Given the particular circumstances of the case, the respondent's youth and the chance that he might yet be rehabilitated if kept from adult gaol, I do not accept that the sentence is so disproportionate to the seriousness of his crime as to shock the public conscience.
In any event, however, I would not be disposed to intervene. As Eames JA remarked in Director of Public Prosecutions v Leach,[3] a Director's appeal should only be allowed in very clear and rare cases of manifest inadequacy or error. In face of the reality of the ever-increasing volume of Director's appeals, the Court ought remain slow to deny or devalue the right of a sentencing judge to act mercifully in aid of a young man's reformation.
[3](2003) 139 A Crim R 64, [48], [50]-[51].
I would dismiss the appeal.
MAXWELL P:
I agree.
DODDS-STREETON JA:
I agree with the disposition proposed by Nettle JA for the reasons his Honour stated. I also acknowledge the great force of the Director's submissions in this case. I observe that the respondent's offending was indeed appalling, involving as it did gratuitous and sadistic violence and significant injury to the victim. It is of great concern that the respondent's pattern of conduct prior to these offences appears to demonstrate an increasing tendency to violence. It is also of concern that he is contemplating accommodation arrangements for the future which may not advance his prospects. I would see the present admittedly merciful disposition as a last chance, afforded only because the respondent has responded so positively to the first very sustained assistance and intervention he has received which may address his significant problems.
MAXWELL P:
The order of the Court is:
Appeal dismissed.
The Court grants to the respondent an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.
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