DPP v DJT
[2005] VSCA 270
•17 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 271 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DJT |
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JUDGES: | CHARLES, CALLAWAY and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2005 | |
DATE OF JUDGMENT: | 17 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 270 | |
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Criminal law – Sentencing – Crown appeal following failure by respondent to honour undertaking to give evidence against alleged co-offender – Threats to respondent in prison if he gave such evidence – Young offender with prospects of rehabilitation – Delay in serving notice of appeal – Respondent already released on parole – Exceptional circumstances, some of them peculiar to respondent – Head sentence increased but non-parole period affirmed – Crimes Act 1958, s.567A(1A) and (4A).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.R.C. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr D. Grace, Q.C. with Mr M.J. Croucher | Robert Stary & Associates |
CHARLES, J.A.:
I will invite Callaway, J.A. to deliver the first judgment.
CALLAWAY, J.A.:
This is an appeal by the Director of Public Prosecutions pursuant to s.567A(1A) of the Crimes Act 1958, which provides that the Director may appeal against a sentence if the sentence was of lesser severity because of an undertaking given by the offender to assist law enforcement authorities in the investigation or prosecution of an offence and the Director considers that the offender has failed, wholly or partly, to fulfil the undertaking. Sub-section (4A) in turn provides that, on such an appeal, if it thinks that the offender has failed wholly or partly to fulfil the undertaking, the Court of Appeal may quash the sentence and pass such other sentence warranted in law as it thinks fit[1].
[1]See also s.5(2AB) and (2AC) of the Sentencing Act 1991.
The respondent pleaded guilty in the County Court to one count of attempted armed robbery. He had made a statement concerning the offence and the involvement of an alleged co-offender, Simon Giretti. In the course of the plea he undertook to assist in the prosecution of Giretti by giving evidence consistent with that statement. On 26th May 2005 the learned judge sentenced the respondent to three years' imprisonment with a non-parole period of 12 months and made a declaration regarding 275 days' pre-sentence detention.
His Honour referred to the undertaking twice in the course of his sentencing remarks. He said, at [15]:
"[Y]ou have agreed to give evidence, if required, in the prosecution of Giretti. For this agreement, you must be given credit and I will reduce the sentence that I otherwise would have imposed because of this indication. That means you really get a double dose of discount. One for your early plea, your co-operation and so on, and another discount over and above that because you are willing, if required, to give evidence against Mr Giretti."
His Honour mentioned the undertaking and the discount again when he came to
pass sentence.
On 29th June 2005 the respondent was to be called as a prosecution witness at Giretti's committal. On that morning he had a conversation with the informant, in the course of which he said that he was not willing to give evidence against Giretti. After consultation with the prosecutor, independent legal advice was sought for the respondent. A member of the Victorian Bar advised him of the possible consequences of his failure to honour the undertaking. The respondent was thereafter called and confirmed that he no longer wished to give evidence in accordance with his statement.
In an affidavit sworn on 14th November 2005 the respondent deposes that, whilst in custody at Port Phillip Prison, he was threatened with violence if he did not retract his statement. He says that the threats were made by three different people on three separate occasions but that he did not report them to prison authorities because he feared that he would be labelled as a "lagger". He deposes that he did telephone Mr Richardson, of the Melbourne Juvenile Justice Centre, who advised him to tell his solicitor. He speaks of the conversation with the informant on the morning of the committal and says that he failed to fulfil his undertaking because of the threats made to him and serious concerns for his safety.
I accept the contents of the respondent's affidavit, which are credible and corroborated by other material. That other material includes an affidavit by the respondent's cousin, who was present when one of the threats was made, and an affidavit by Mr Richardson. He confirms the telephone call and supplements the evidence he gave on the plea. Exhibited to his affidavit is a report dated 15th November 2005 from Ms Colleen Edwards, a youth worker from the Brosnan Centre in Brunswick.
On 30th June 2005 the respondent was convicted of further offences at the Melbourne Magistrates' Court and sentenced to an aggregate term of three years' imprisonment, to be served concurrently with the sentence he was undergoing. A new single non-parole period of 12 months was fixed. He was released on parole on 19th September 2005.
This is not a case where any useful purpose would be served by describing the circumstances of the offence or the alleged involvement of Giretti. The circumstances of the offender are complex. On the one hand, he is a young man, now aged 24 and 23 at the time of the offence, who admitted hundreds of previous findings of guilt or previous convictions, mainly in the Children's Court but also in the Magistrates' Court and the County Court. They included 274 offences of dishonesty, eight offences involving assault and an armed robbery in which his role was that of the driver. Although heroin use contributed to the offence with which we are concerned, the respondent has surprisingly few convictions for drug offences. On the other hand, he has had what the learned judge described as an horrendous family life, including repeated sexual abuse from an early age. He has some mental health problems that he has begun to address and both Dr Walton and Mr Healey were cautiously optimistic about his prospects of rehabilitation.
Mr Southey submitted, correctly, that the respondent had wholly failed to fulfil the undertaking given to the judge, who had reduced his sentence to reflect that undertaking. Attempted armed robbery is a serious offence, carrying a maximum custodial penalty of 20 years' imprisonment. The respondent's offence was calculated and involved the use of a knife to threaten a man who had been financially generous towards him. Both general and specific deterrence loomed large in the sentencing process, particularly having regard to the respondent's previous convictions and findings of guilt. In those circumstances, counsel submitted, the Court should not exercise its discretion to affirm the existing sentence, but should re-sentence the respondent.
Mr Grace and Mr Croucher had filed a helpful outline of submissions, which dealt, among other things, with the mitigatory factors in the respondent's favour. They included the reason he had failed to fulfil his undertaking, his vulnerability in the prison system, his resolve to rehabilitate himself, which had impressed both the judge and the learned magistrate, and his early plea of guilty. Reference was also made to the delay in instituting the appeal, some two-and-a-half months after the respondent declined to give evidence at Giretti's committal.
In the course of oral argument, two points became clear. The first, which was not conceded by Mr Grace, was that there had to be some increase in the sentence. The respondent had made a bargain with the Crown from which he had resiled. He had received a benefit in exchange and at least some part of that benefit had to be taken back. There are exceptional cases in which, even on a Crown appeal under s.567A(1A), no different sentence should be passed, but this is not one of them. The threats that were made in prison do not alter the fact that the respondent failed to pay the price for the reduced sentence that the judge gave him, but they do bear on an assessment of his character. To go back on an undertaking because one fears for one's personal safety is a very different matter from deciding that one simply does not wish to assist the authorities.
That brings me to the second point that became clear in the course of oral argument. The respondent is damaged and more than usually vulnerable. The sexual abuse that began in childhood continued with his being raped in prison four years ago. He has not only begun to address his mental health problems. The affidavit and other material shows that he has made a real effort, whilst in prison and since his release, to turn his life around. In extending leniency to him, the County Court and the Magistrates' Court appear to have facilitated a new beginning. Ms Edwards says in her report that, although the respondent experienced immense difficulty in adjusting to life in the community when he was released from prison, he has persevered and utilised the support of all those who are trying to help him and that he is now beginning to experience a more stable period and is looking for employment.
That is precisely the kind of rehabilitation of a severely disadvantaged young offender that could be impeded, if not derailed, by a further period in custody. I do not forget his record, or the warning in Dr Walton's report that a significant change
in anti-social behaviour is often not consolidated until the late twenties or early thirties. To extend leniency to the respondent is to take a risk, as the judge and the magistrate took a risk, but it is a risk that I believe is in the interests of the community. Furthermore, and importantly, the sentence I shall propose will carry its own heavy sanction if the respondent breaches his parole.
When a sentence of the kind that I shall propose was indicated to Mr Grace, he wisely made no further submissions. In reply, Mr Southey submitted that there should be an increase in the non-parole period but, in the exceptional circumstances of this case, some of which are peculiar to the respondent, I would not take that course. I propose that the head sentence be increased to four years' imprisonment, which will vindicate the Director in bringing the appeal, but that the non-parole period of 12 months be affirmed.
CHARLES, J.A.:
I agree.
ASHLEY, J.A.:
The respondent's reason for not adhering to his undertaking, which I and the other members of the Court accept as being genuine, does not alter the fact that he was given a reduced sentence on what proved to be a false basis. It is in the interests of the administration of justice that accused persons should undertake to assist authorities in the investigation or prosecution of offences, including offences committed by others. In such cases it may be surmised that not infrequently an undertaking to assist will carry the risk of threats of retribution, or of actual retribution, by others. Director of Public Prosecutions v. Fernandez and Others[2] makes the point, if indeed it could be in doubt. In my opinion, it should be assumed, at least in most cases, that an accused person has taken such risks into account before
an undertaking is given.
[2](2003) 137 A.Crim.R. 524.
It is not in the interests of the administration of justice, however, that a reduced sentence should be imposed upon an accused person on the basis of an undertaking to assist; and that, if such undertaking is breached, it should be expected that an assertion, or the fact, that such a risk has eventuated, will provide sufficient reason why the Court should not make an order adverse to the person on a Director's appeal under s.567A(1A) of the Crimes Act 1958.
The power conferred on the Court by s.567A(4A) is permissive. If the original sentence is quashed and some new sentence is to be imposed, it must address the particular circumstances of the case. In the particular circumstances of the present case, I agree in the disposition proposed by my brother Callaway.
It is plain that the respondent has an extremely bad criminal record for a person of his age - indeed, for a person of any age - and that the offence in respect of which the sentence now under appeal was imposed, though not a very bad example of that offence, was bad enough. On the other hand, the learned sentencing judge detected some realistic prospect of the respondent being rehabilitated. There is material before the Court which suggests that his Honour's assessment was not unduly optimistic; that is, material bearing upon the respondent's conduct whilst in prison, and since his release on 19 September this year. The respondent's refusal to abide his undertaking, I should say, is not inconsistent with his following a path towards rehabilitation in the particular circumstances of that refusal.
Against that background, I think that there was force to the respondent's argument that there was such unexplained delay in commencing this appeal, in the context that the Director knew that the respondent would become eligible for parole on 19 September this year, that it would be unfair to now return the respondent to gaol, he having been at large for nearly two months and his rehabilitation having continued in that period. The delay, effectively, was between 29 June 2005, when the
respondent refused to honour his undertaking, and 13 September, when the notice of appeal was served upon him. Even if one was to take the date on which the notice of appeal was signed, 8 September, the situation would not be much better for the Director. Particularly that is so when the document bears the date 29 August.
Rarely could a delay in instituting an appeal be a decisive consideration in the disposition of an appeal under s.567A(1A). In the present case, however, the practical demand that in the ordinary case a convicted person should not be permitted to escape there being some consequence of refusal to abide an undertaking can be reconciled, in my opinion, with the respondent's apparent attempts to rehabilitate himself, set in the context of the delay in instituting this appeal and the resulting circumstance that the respondent has been at large for nearly two months now. The means of that reconciliation lie in the orders proposed by my brother Callaway, with which, as I said a few moments ago, I agree.
CHARLES, J.A.:
The orders of the Court today are as follows:
The Director's appeal is allowed in part.
The sentence of three years' imprisonment imposed on the count of attempted armed robbery is set aside.
In lieu thereof the respondent is sentenced to four years' imprisonment on that count.
The non-parole period of 12 months is affirmed.
It is declared that the period of 391 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that this declaration was made and its details.
MR GRACE:
If the Court pleases, there is only one matter, just as an abundance of caution. Could I ask that it be noted in the records of the Court, not necessarily in the orders, but that the sentence dates from the day of the original sentence imposed in the County Court?
CHARLES, J.A.:
That indeed must be so. No doubt this is all being recorded, and your question and our response can be noted.
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CERTIFICATE
I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of Charles, Callaway and Ashley, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 17 November 2005.
DATED the day of 2005.
Associate
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