DPP v Herbert
[2002] VSCA 187
•14 November 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 206 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| MARC ALAN HERBERT |
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JUDGES: | WINNEKE, P., EAMES, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 November 2002 | |
DATE OF JUDGMENT: | 14 November 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 187 | |
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Criminal Law - D.P.P. appeal - Theft of motor car, robbery, false imprisonment, threat to inflict serious injury, causing injury intentionally - Whether individual sentences, total effective sentence and non-parole term manifestly inadequate - Sentence of one month for robbery manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. (DPP) with Ms R.E. Carlin | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr B.J. Halpin | Victoria Legal Aid |
WINNEKE, P.:
I will invite O'Bryan, A.J.A. to deliver the first of the judgments.
O'BRYAN, A.J.A.:
The respondent, who was born on 22 October 1979 and is now aged 23, pleaded guilty in the County Court on 12 July 2002 to five counts in a presentment. The counts related to events which occurred on 26 January 2002 involving three victims. Following a plea, the sentencing judge imposed sentences of imprisonment on each count and fixed a minimum term of seven months before the respondent could become eligible for parole. The respondent was released on parole on 30 August because he had been in custody on the charges since 31 January 2002, the day upon which he voluntarily went to the police station at Frankston and made full and frank admissions about all the charges.
It is convenient to detail the counts in the presentment and the sentences imposed on 12 July 2002.
Count 1 -Theft of a motor car belonging to Paul Neighbour at Langwarrin. Sentenced to be imprisoned for three months. Disqualified from obtaining a licence to drive a motor vehicle for one month effective from 12 July 2002.
(Maximum penalty 10 years' imprisonment)
Count 2 -Robbery of Justin Davies of a mobile telephone at Mount Eliza. Sentenced to be imprisoned for one month.
(Maximum penalty 15 years' imprisonment)
Count 3 - False imprisonment of David Mifsud at Langwarrin. Sentenced to be imprisoned for 18 months.
(Maximum penalty 10 years' imprisonment)
Count 4 - Threat to inflict serious injury on David Mifsud at Langwarrin. Sentenced to be imprisoned for 18 months.
(Maximum penalty five years' imprisonment)
Count 5 - Causing injury intentionally to David Mifsud at Langwarrin. Sentenced to be imprisoned for 18 months.
(Maximum penalty 10 years' imprisonment)
Because no order for cumulation was made, the total effective sentence was 18 months. As earlier indicated, the minimum term fixed was seven months. A direction was made pursuant to s.18 of the Sentencing Act 1991 that 163 days be reckoned as the period already served under the sentence.
The respondent admitted 43 prior convictions and 12 findings of guilt arising out of 14 court appearances, seven of which were in the Children's Court between June 1994 and June 1996 when the respondent was aged 14 to 16 years. Other court appearances were in the Magistrates' Court. The criminal history included offences of intentionally causing injury and threatening to inflict serious injury. He was convicted in the Magistrates' Court on 28 May 2001 on 22 charges and ordered to be imprisoned for six months and at the expiration to be released on a combined custody and treatment order for a further three months.
It may be assumed that he was released from custody in about October 2001 and that when he offended again on 26 January 2002 he had not quite completed the treatment order.
The State Director of Public Prosecutions gave notice of appeal on the ground that the sentences imposed in respect of each individual sentence, the total effective sentence and the non-parole period are each manifestly inadequate. Six particulars of error by the sentencing judge are relied upon. They will be treated in due course when the submissions of the Director are considered.
The offending may be summarised briefly. In January 2002, the respondent resided in a unit in Langwarrin with his partner and her two children. Apparently they had an argument on or about 25 January which resulted in the partner leaving the unit with her children. At the time, the respondent was taking amphetamines and it would appear that his erratic conduct under the influence of the drug was a cause of the separation.
In early January, Paul Neighbour, who lived in an adjacent unit, went on holidays leaving the key to his unit with the respondent's partner so she could feed his cat. On 26 January the respondent gained access to Mr Neighbour's unit by means of the key and took Mr Neighbour's car keys before driving the vehicle to the TAB at Mount Eliza. Count 1 relates to the theft of the vehicle.
There he approached Justin Davies, who was with David Mifsud, and demanded to know where Justin's brother was to be found. Justin said he did not know the whereabouts of his brother. The respondent then demanded Justin's mobile phone. When he refused, the respondent punched him to the head and took the mobile phone. Justin run away, leaving David Mifsud with the respondent. Count 2 relates to the robbery.
Under a pretext, the respondent offered Mifsud a lift to the Frankston Railway Station but on the way he told Mifsud he had to call at his unit. Mifsud entered the unit, whereupon the respondent armed himself with knives and waved them around Mifsud. Thereafter, for a period of time, Mifsud was unlawfully detained in the respondent's unit before he escaped by jumping through a loungeroom window. Count 3 relates to the unlawful detention of Mifsud,
During the period of detention, the respondent made Mifsud drink a concoction of cordial and dishwashing detergent, at the same time holding a large knife to Mifsud's throat and threatening to seriously injure Mifsud with the knife if he did not consume the drink. Count 4 relates to the threat to seriously injure Mifsud.
Mifsud was handcuffed at one stage but was able to break the chain between the cuffs. The respondent then took a large knife from the kitchen and slashed Mifsud to the face, causing a deep laceration to Mifsud's cheek which bled heavily and later required sutures. Mifsud was in fear of his life when he made his escape from the unit. Count 5 relates to the injury caused to Mifsud's face.
On 31 January at 4.35 p.m. the respondent voluntarily attended the Frankston Police Station and was interviewed about the offences. Early in the interview the respondent told the police what he did on 26 January:
"I took a guy and tried to handcuff him and cut him with a knife. And I don't know, took my neighbour's car. Punched a guy in the face. Took his mobile phone because I just wanted to speak to his brother. And before all that it was just a big fight with my girlfriend. And she slashed me and stuff, you know, that's about it."
More details of the offending emerged during the interview along the lines I have indicated.
Following the interview, the respondent was charged with the offences and was remanded in custody until 12 July when he pleaded guilty and was dealt with in the manner indicated in [3]. It cannot be gainsaid that the respondent showed remorse in going to the police and co-operating with them during the interview. Further, his plea of guilty was indicated early in time and is also indicative of remorse.
During the plea a number of mitigating matters were disclosed to the court. The respondent's appalling conduct was explained, but not justified or diminished in any way, by the quarrel he had with his partner. Ms Winslett gave evidence on the plea. She said that she met the respondent in October 2001 when he was released from custody. They began a relationship during which Ms Winslett became pregnant. The child was expected about mid September. The respondent was taking amphetamines and a violent argument occurred on 25 or 26 January 2002 - the date is not clear - following which Ms Winslett left with her two young children. She described the respondent as normally not violent. She said she had been regularly visiting the respondent in prison, together with the children, and that she intended to live with him when he was released. The respondent had told her that he would not take drugs in the future.
A detailed report prepared by Mr Healey, a clinical psychologist was provided to the court. The report disclosed that the respondent informed Mr Healey he had abused heroin for two or three years, used amphetamines and cannabis. However, he said that since being in custody on remand he had not used drugs, his urine testing had produced clear results and he had achieved "enhanced prisoner status" since working in the prison kitchen. He also told Mr Healey that he had experienced an unhappy childhood and began to use heroin at age 18. Intellectual testing showed average intellectual capacity which placed him at the 50th percentile. Personality testing was indicative of anxiety, significant hypomanic trend, paranoid elements and sociopathic trend that derived its contribution largely from problems with authority and social alienation.
The sentencing judge accepted that the respondent's "difficult life" was probably when he was under the influence of amphetamines. The judge accepted that the respondent had anger problems and psychological problems "and the combination of all of that led you to display your erratic behaviour". The judge said that he took into account the mitigatory factors to which I have referred, including the remorse shown, and considered that free of drugs the respondent had good prospects. Therefore, he said he was prepared to "tailor the sentences so that you will be, unless there is something untoward, out in time to see the birth of your son or daughter and you will have a lengthy parole period".
The offences, particularly those concerning Mifsud, were very serious indeed because the respondent behaved in a very violent and frightening manner armed with a knife or knives. Further, he had no reason whatsoever to behave so badly towards Mifsud.
The principles which govern an appeal by the Director of Public Prosecutions are identified in R v. Clarke[1] and particularly in the judgment of Charles, J.A. in which he referred to Everett v. R. To succeed, the Director must persuade this Court that the sentence "reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle".
[1]R. v. Clarke [1996] 2 V.R. 520 at 522; Everett v. R. (1994) 181 C.L.R. 295 at 299.
Mr Coghlan submitted that the individual sentences, the total sentence, the non-parole period and the omission to order any cumulation of any of the sentences reveal manifest inadequacy and, therefore, judicial error, the error being produced, he argued, because the judge under- valued just punishment and general deterrence and overvalued mitigating factors personal to the respondent. Mr Coghlan argued, persuasively, I considered, that the individual sentences were low and do not reflect the seriousness of the offending, particularly in relation to Mifsud who underwent a terrifying ordeal in the unit which ended only by him escaping through a window. Certainly, he said, the penalty of licence disqualification for one month was too lenient. The sentence of one month for robbery was too low, Mr Coghlan argued, particularly when the respondent's criminal history is taken into account.
Mr Coghlan submitted that an order for some cumulation was called for because the highest sentence of 18 months did not reflect the overall seriousness of the five offences involving three victims and relating to three periods of offending at two locations. I think that some cumulation was justified by the circumstances of the offending involving multiple victims at two locations and the individual low sentences. The need for cumulation was heightened by the respondent's very extensive criminal record. Against that, the respondent was only 22 at the time of offending, and when he was sentenced he had demonstrated genuine remorse, had made a serious attempt to overcome his drug problem, which was thought to be an underlying cause of his antisocial and violent behaviour, and had some prospect of rehabilitating his life with the help of his partner. A fine balancing act was called for in sentencing: to denounce the type of conduct in which the respondent engaged, to protect the community and, at the same time, to have regard to the personal circumstances of the respondent in terms of mitigating factors and prospects of rehabilitation.
The non-parole period of seven months was attacked by Mr Coghlan as not satisfying the principles of just punishment nor general or specific deterrence. The judge gave as reasons for imposing a rather short non-parole period, first, that he would be out of custody in time for the birth and, second, that a parole period of 11 months under supervision might ensure that the respondent did not re-offend.
Mr Halpin, for the respondent, conceded that the sentence imposed for the robbery was inappropriate, meaning it was very lenient. Otherwise, he submitted the individual sentences were appropriate. Mr Halpin argued, but not persuasively in my opinion, that no cumulation was called for because the judge regarded the offending as "one long episode". The expression "one long episode" was appropriate to describe the episode involving Mifsud, but inappropriate to describe the offending overall for it involved two locations and three victims.
This is a difficult case for the Court. The Court is not hearing the matter de novo and is not entitled to substitute its own opinion for that of the sentencing judge because it considers the total effective sentence or individual sentences, or the non-parole term, produced too lenient a sentence. It may do so only if it considers the sentencing judge fell into error because the sentence, or some part of it, was manifestly inadequate. In Clarke, Charles, J.A., on behalf of the Court, cited with approval a passage in the judgment of King, C.J. in Osenkowski[2]:
"[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
Whilst remarks of King, C.J. have some application to the present case, in my opinion they cannot be used to justify the lenient sentence imposed in this case.
[2]R. v. Osenkowski (1982) 3 S.A.S.R. 212 at 212-213.
I am of the opinion that the sentence for robbery was manifestly inadequate in all the circumstances and that the sentencing judge fell into error. I am unpersuaded that the sentencing judge fell into material error of law in not ordering cumulation between what I shall call the Mount Eliza offences and the Langwarrin offences. I reach that conclusion because I do not consider that a manifestly inadequate total effective sentence was produced by no order as to cumulation
The cancellation and suspension order made for one month effective from 12 July 2002 was mandatory pursuant to s.89(4)(a)(i) of the Sentencing Act 1991. The only discretion given to the court is in fixing the disqualification period. The order was a token application of the section for the respondent's minimum term, less 163 days already served, which meant that if he were released on parole on the earliest date, as he was, he could apply for a driver licence immediately upon release and would suffer no penalty from disqualification. The judge intended this result for he referred to the disqualification as "unrealistically low" to allow the applicant to obtain a licence if he needed one to get a job. As I said recently in R v. Wootton[3], "A disqualification period is a penalty which only bites when the offender is released".
[3]R. v. Wootton [2002] VSCA 165 at [24].
In my opinion, the disqualification period selected by the judge was manifestly inadequate. However, I consider the Court should decline to intervene now, even though error has been shown in the sentencing process, as almost three months has elapsed since the respondent was paroled. Were the Court to set another suspension period it would be somewhat less than what might otherwise have been imposed on account of the double jeopardy rule.
Notwithstanding that the offending, particularly in relation to counts 2 to 5, was most serious and frightening for the victim Mifsud, the mitigating factors are significant, particularly the remorse shown by the applicant. The likely reconciliation between the respondent and his partner is another matter justifying some leniency. The judge was entitled to consider the prospects for rehabilitation of the respondent under the supervision of the Parole Board were good when he selected a rather short non-parole term. I am not satisfied the term was manifestly inadequate.
The sentencing discretion is reopened on account of the error in relation to count 2. I would propose that a sentence of six months' imprisonment be substituted for one month on count 2. I would not, however, impose different sentences on counts 1, 3, 4 and 5. I would decline to make an order as to cumulation and I would not interfere with the non-parole period of seven months. The sentence remains very lenient, but when error is shown this Court is required to set a sentence somewhat less than might otherwise have been imposed having regard to the double jeopardy rule. I would allow the appeal to the extent indicated.
WINNEKE, P.:
I agree.
EAMES, J.A.:
I agree with the orders proposed by O'Bryan, A.J.A. and I agree generally with his Honour's reasons. The one area in which I express some qualification relates to the order made by the learned sentencing judge as to the period of disqualification from obtaining a driving licence. It was perhaps an unfortunate choice of words for his Honour to describe the order that he made for disqualification as being "unrealistically low", but the reason his Honour gave for the order he made, namely to ensure that upon release the respondent would not be handicapped in his efforts to obtain a job, seem to me to be quite appropriate and would justify a relatively short period of disqualification. In this case I would not therefore conclude that the period fixed by his Honour was so low as might justify interference by the Court on a Director's appeal in such circumstances. Save for that matter, I agree with O'Bryan, A.J.A.
WINNEKE, P.:
The formal order of the Court will be that the appeal is allowed solely to correct the error in the sentence imposed on count 2, namely the count of robbery. That sentence will be increased from one month to six months. Otherwise the appeal against the sentences is dismissed. The head sentence and the non-parole period will therefore remain the same as they are, as will the period of the disqualification of the licence.
We direct that the respondent have a certificate pursuant to the relevant section of the Appeal Costs Act.
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