DPP v Burn

[2003] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 222 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

v.

ASHLEY VALE BURN

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JUDGES:	WINNEKE, A.C.J., VINCENT, J.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2003
DATE OF JUDGMENT:	23 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 167

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Criminal law – Sentence – Crown appeal against a community-based order imposed by experienced judge on a multiple offender dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (D.P.P.) with Mr C.W. Beale	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr M.J. Croucher	Victoria Legal Aid

WINNEKE, A.C.J. (delivering the judgment of the Court):

1. This is a Director’s appeal brought against the alleged inadequacy of the sentence imposed by Judge Kelly upon this respondent in the County Court on 18 July of this year.

1. The Director appeals by notice which was permissibly served out of time by virtue of an order made by this Court upon application by the Director on 4 September 2003.  Mr Tehan, who appeared with Mr Croucher for the respondent, sought to have this Court exercise what he contends is a power which it has to set aside that notice of appeal, on the basis that an injustice has occurred to his client by reason of the fact that the notice of appeal had been served out of time (albeit with this Court’s order), plus the fact that, because his client was not able to appear to contest the application to extend time for service, it was an injustice to him which ought to induce this Court to say not only that it has the power to set aside an order extending time made by this Court, but also that it should do so because of the plain injustice to his client.

1. Without having to decide whether we have the power to recall such an order, we concluded that we would not accede to the application because there is nothing in the material before us which, in this case, would justify us in doing so.

1. Coming to the merits of the matter, the Director argues that the order made by the learned judge, effectively releasing the respondent into the community on a community-based order, was not a disposition which was open to him in the circumstances, because not only does it deny the fact that the respondent is a man who is a multiple offender, but the disposition of the community-based order cannot be justified as the appropriate type of non-custodial disposition for the respondent, even if it were thought that mercy should be extended to him.

1. It is recognised by the Director that there must be circumstances where a person, who has lived what in essence has been a life of crime during his young and perhaps formative years, can be given a merciful disposition, if the judge on the material before him sees that the time is right to do so.  What the Director contends is that there was no basis upon which this judge, experienced though he may have been, could have taken the view that the time was right to do so in respect of this offender.

1. His Honour had before him evidence from a Ms Beckett, who comes from the Bail Advocacy Program, a program which has been explained to us and one which has been engaged apparently by the Magistrates' Court to try and provide alternative measures for people who need support during the time when they are at large but facing sentence.  The endeavour is to attempt, at least in some circumstances, to break the cycle of custody and to ensure that people who are worthy of support can get it.

1. In this case, Judge Kelly seemed to us to have approached this matter with some care.  He had, as I have said, the evidence of Ms Beckett, and he also had material which he obtained from the Corrections Department.  The adequacy or validity of that material has been attacked by the Director, and, if we might say so, with some basis.  Nevertheless, his Honour took the view that, on the material which he had before him, and no doubt acting upon a well-honed judicial instinct, the community, as well as the prisoner, might benefit, at this point in his history, from a lenient sentence which would give him the opportunity to continue to take advantage of the support that he is getting at the present time, and to continue to endeavour to get himself free from the drug which has hitherto been afflicting him;  and also to find some form of permanency in employment.  Those were the factors which I think induced this experienced judge to conclude that the time was now an appropriate time to exercise leniency, rather than to inflict a penalty of custodial sentence which in his Honour’s view would only continue the cycle which has been afflicting this prisoner during the period of his twenties and into his early thirties.

1. This Court takes the view that the exercise of this judge’s discretion would be a very difficult one for it to attack and overturn.  Well known authorities have indicated that it will sometimes be open to an experienced judge to conclude that, in a particular case, a merciful disposition is warranted for the purposes of promoting the offender’s rehabilitation.

1. Although the Director has attacked the basis of his Honour’s order, particularly the fact that his Honour was prepared to release the respondent on a community-based order, we cannot see that it was not an appropriate thing to do in the peculiar circumstances of this case, because it maintains the support structures which his Honour thought were so important to be maintained to continue the rehabilitation of this respondent.  The fact is that the respondent has now been, if we might use the term, “crime-free” for nearly twelve months, and, if anything, that fact lends support to not only the disposition but also the view which his Honour had formed that such a disposition was warranted at this time.  Whether or not, in the long run, it turns out to be the right disposition is not to the point.  This Court is being asked by the Director to overturn a discretionary order made by an experienced criminal judge which in our view was supported by material which he had before him.

1. We are therefore of the view that the appeal should be dismissed, but we make this postscript for your benefit, Mr Burn.  If you do not take advantage of the leniency which has been afforded to you, no one is going to help you in the future.  Do you understand that?

RESPONDENT:  I understand that, your Honour.

WINNEKE, A.C.J.:  You make sure you don’t let us all down.

RESPONDENT:  Thank you.

WINNEKE, A.C.J.:  The formal order of the Court is that the appeal is dismissed. 

MR TEHAN:  I ask for a certificate, Your Honour.

WINNEKE, A.C.J.:  A certificate will be granted.

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