DPP v Blyth
[2003] VSCA 124
•20 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 91 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DAVID JASON BLYTH |
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JUDGES: | PHILLIPS, C.J. VINCENT, J.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 August 2003 | |
DATE OF JUDGMENT: | 20 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 124 | |
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Criminal Law - Directors appeal against inadequacy of sentence - Individual sentences and cumulation direction properly the subject of constructive criticism - Nett result of sentence such that appellate intervention unnecessary - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. Ms K.E. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.G. Priest, Q.C. Ms N.M. Gobbo | Leanne Warren & Associates |
PHILLIPS, C.J.:
The respondent, who is now aged 31, pleaded guilty in the County Court at Melbourne on 18 February last to a presentment containing the following: one count of escaping from custody (count 1); three counts of burglary (counts 2, 7 and 9); six counts of theft (counts 3, 4, 5, 8, 12 and 13); two counts of aggravated burglary (counts 6 and 11) and one count of attempted theft (count 10). These offences, which were committed in various Melbourne suburbs in January and February 2002, carried maximum penalties of five years' imprisonment (escape); 10 years' imprisonment (burglary and theft); five years' imprisonment (attempted theft) and 25 years' imprisonment (aggravated burglary).
The respondent admitted two findings of guilt and 64 prior convictions from 10 court appearances between June 1990 and November 1997 and, in the course of a plea proceeding, the following exhibits were tendered on behalf of the respondent: a report of Mr Jeffrey Cummins, forensic psychologist (Exhibit A); a letter from a Mr Jenkins, an Outreach support worker (Exhibit B); a letter from the Adult Parole Board (Exhibit C); two letters from the Windana Society (Exhibit D) and correspondence from Moreland Hall (Exhibit E). Mr Jenkins also gave viva voce evidence.
On 7 March, the learned judge sentenced the respondent as follows:
Count 1- three months' imprisonment
Counts 2, 4, 7, 9 and 13 - three months' imprisonment
Counts 3, 8 and 12 - two months' imprisonment
Count 5- one day's imprisonment
Count 6- 12 months' imprisonment
Count 11- 18 months' imprisonment.
On count 13 the respondent's licences were cancelled and he was disqualified from obtaining a licence for six months
Her Honour directed that one month of the sentence on each of counts 2, 6 and 11 be served cumulatively on each other and on the sentence the respondent was currently undergoing. She further directed that the whole of the sentence on count 1 was also to be served cumulatively on the sentence he was currently undergoing and that all the other sentences be served concurrently with the said sentence. This made for a total effective sentence of 23 months of which six months was cumulative on the sentence he was currently undergoing and 17 months concurrent therewith. Her Honour fixed a non-parole period of 10 months and made other consequential orders
Prior to the receipt of the sentence now the subject of this appeal, the respondent had received, in the County Court, a total effective sentence of eight and a half years' imprisonment with a non-parole period of five years and six months on 21 October 1997. Thus, he had been, prior to his escape and other offences, and allowing for pre-sentence detention, eligible for parole in October 2002. (As at sentence November 2002.)
The appellant, the Director of Public Prosecutions, later lodged notice of appeal, pleading the following:
"GROUND OF APPEAL:
The sentences imposed in respect of each of the counts, the total effective sentence and the non-parole period are each manifestly inadequate.
PARTICULARS:
In imposing the individual terms of imprisonment for Counts 1 to 13 and in making the orders with respect to cumulation between those counts and between those counts and the sentence the Respondent was undergoing and in fixing the non-parole period the learned sentencing judge:
(a)failed to reflect the gravity of these offences generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d)gave too much weight to factors going to mitigation; and
(e)gave insufficient weight to the Respondent's relevant prior convictions."
It is now necessary to set out in summary form the facts of these matters and it is convenient to go for this purpose to the reasons for sentence of the learned judge.
On 9 January 2002 the respondent was on supervised leave from prison and visiting friends at Melton. He had previously sought permission to meet a woman called Clara Ranieri (said by his counsel to be a "soul mate"). Apparently this had been initially granted but was then revoked by another governor. Using the excuse of seeking some fresh air, the respondent decamped over the back fence (count 1). On 13 January 2002 the respondent burgled a house at South Melbourne stealing a wallet, mobile phone, other goods and a set of car keys (counts 2 and 3). He also stole the car to which the keys related (count 4). On 2 February he filled the car's petrol tank at a service station and drove away without paying (count 5). On 6 February he entered a unit at Scott Street Elwood but fled when confronted by a woman occupant (count 6). Twenty minutes later, he entered a house in May Street Hampton by a locked screen door and stole a backpack containing a mobile phone, keys, a car remote control, a photo frame and other items (counts 7 and 8). Less than an hour later he entered another Hampton house by removing a flywire screen and attempted to remove a video camera. He was disturbed by the occupant (counts 9 and 10). Between 9.45 and 10.15 p.m. on the same evening he entered another house in Elwood and stole keys from the kitchen bench. He then left the premises but stole the vehicle to which some of the keys related (counts 11, 12 and 13).
Thus seven of his offences were committed on the same day.
On the following afternoon the police found the stolen car and an arrest of the respondent was soon made. He admitted the escape but none of his other offences. It is common ground that the two vehicles were not damaged and that a deal of the property stolen was recovered by the police.
I turn now to the arguments of counsel on this appeal. Mr Coghlan, the appellant, had filed a written outline which referred to observations of Charles, J.A. with whom Winneke, P. And Hayne, J.A. agreed in R v. Clarke [1996] 2 V.R. 520 at 522. These remarks, opining that Directors appeals should be brought only in rare and exceptional circumstances, continued "occasions may arise for the bringing of a Crown appeal...when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle...". The outline also contained various complaints that the learned judge had failed to give sufficient weight to such matters as the relevant maximum penalties, the respondent's criminal history and the circumstance that the offences, other than count 1, were committed during the respondent's escape from custody, which offence itself involved a breach of trust. There was also a complaint as to the alleged insufficiency of the sentences for aggravated burglary. It was also said that the judge lost sight of the total criminality involved in the respondent's conduct and that the non-parole period fixed was manifestly inadequate. Mr Priest, for the respondent, also filed a detailed written outline in which it was accepted that the sentences were indeed lenient but within range. In oral argument before us Mr Priest took the Court through the individual sentences and the cumulation directed in furtherance of these contentions
In his outline, Mr Coghlan did address the matters of the expiration of the sentence imposed and the period the respondent would actually serve. In his oral submissions, perhaps upon reflection, I understood him to say that while he maintained that the individual sentences and the cumulation directed offended principle the net result might be such that it was open to this Court to decide not to intervene.
As I understand it, the cumulative effect of the respondent's conduct and the subsequent sentence, the time between his escape and his subsequent capture will not run as part of his sentence. Accordingly, his new non-parole period will not expire until January 2004 - an extension of some 13 months. Further, with the directed cumulation, his head sentence will not expire until 25 May 2006. I also
regard as relevant the four months which the evidence of Mr Jenkins before the learned sentencing judge showed he had spent in a part of Port Phillip known as "The Slot" following his recapture. He was locked down for 23 hours a day and basically without privileges. To that consideration should be added the circumstances that in July 1993, when in his early 20s, he received a sentence of 46 months' imprisonment at the Broadmeadows Magistrates' Court and then, on 21 October 1997, he received a sentence of eight and a half years' imprisonment with a non-parole period of five years and six months. Accordingly, he has spent the great bulk of the last decade in prison, in addition to periods he spent in such institutions as Baltara and Turana after he was made a Ward of the State at the age of 11 following a history of family discord. The opinion of Mr Cummins that the respondent had become significantly institutionalised appears to be undisputed.
Having regard to the foregoing, I have come to conclude that while it may be that the individual sentences and cumulation imposed and directed by the learned judge can be the subject of constructive criticism, in all the circumstances and consistently with established authority, this is not a matter which requires appellate intervention by this Court and I would propose that this appeal be dismissed.
VINCENT, J.A.:
I agree.
ASHLEY, A.J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the appeal stands dismissed.
MR PRIEST:If the Court pleases, we would seek a certificate under the Appeals Cost Act.
PHILLIPS, C.J.:
Yes, a certificate will be granted.
MR PRIEST:Thank you, Your Honour.
PHILLIPS, C.J.:
Would you bring the respondent forward, please. Come up here.
Judge Cohen, when in the County Court, sought, consistently with some punishment, to try and assist you and she no doubt did that because of what she was told and because of the opinions like that of Mr Jenkins that there is worth in you and we have decided not to interfere with what Judge Cohen did. All right?
PRISONER:Yes.
PHILLIPS, C.J.:
So it is up to you from now on. There is no reason why, after finishing this sentence, prison and all that goes with it should not be a thing of the past for you. All right?
PRISONER:Yes.
PHILLIPS, C.J.:
Go back to your place.
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