DPP v Karipis
[2005] VSCA 119
•13 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| STEVEN ANDREW KARIPIS |
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JUDGES: | CALLAWAY, EAMES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April 2005 | |
DATE OF REASONS: | 13 May 2005 | |
DATE OF ORDERS: | 1 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 119 | |
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Criminal law - Sentencing - Crown appeal - Three separate incidents of aggravated burglary, armed robbery and other offences, including intentionally causing serious injury - Respondent aged 17 and 18 at time of offences - Three years' detention in a youth training centre manifestly inadequate notwithstanding youth and mitigating factors - Four-and-a-half-years' imprisonment with non-parole period of two years substituted - Children and Young Persons Act 1989, s.244 - Sentencing Act 1991, s.89(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. | Mr S. Carisbrooke, |
| For the Respondent | Mr P.G. Priest, Q.C. with Mr G.F. Meredith | Dowling McGregor Thomas |
CALLAWAY, J.A.:
The respondent, who is now aged 20, pleaded guilty in the County Court to a presentment containing 12 counts. They related to three separate incidents: first at Warrandyte on 28th January 2003 (counts 1 to 3), when the respondent was aged 17; then at Cheltenham on 17th May 2003 (counts 4 to 7), by which stage he had turned 18; and then at Springvale and Dingley on 16th and 17th January 2004 (counts 8 to 12), when he was still 18. They comprised three counts of aggravated burglary (counts 1, 4 and 8), three counts of armed robbery (counts 2, 5 and 9), one count of intentionally causing serious injury (count 3), one count of intentionally causing injury (count 6), one count of theft (count 7), one count of false imprisonment (count 10), one count of common assault (count 11) and one count of handling stolen goods (count 12). The maximum custodial penalties for those offences vary but, importantly, they are 25 years' imprisonment for aggravated burglary and armed robbery and 20 years' imprisonment for intentionally causing serious injury.
The respondent admitted one finding of guilt in the Children’s Court and six previous convictions in the Magistrates' Court from three court appearances between October 2000 and September 2003. They included one charge of theft, one charge of intentionally causing injury and one count of assault in company. The last appearance resulted in a community-based order. There were also subsequent convictions to be considered. On 29th June 2004 the respondent was again convicted of intentionally causing injury and assault in company, as well as traffic offences. That breached the community-based order and, on 26th July 2004, he was dealt with for the offences the subject of that order, together with two charges of burglary, two charges of theft and one charge of criminal damage. He was sentenced to six months' detention in a youth training centre.
After hearing a plea for leniency on his behalf, the learned judge sentenced the respondent to the following terms of detention in a youth training centre:
Count 1 aggravated burglary - two years
Count 2 armed robbery - two years
Count 3 intentionally causing serious injury - 18 months
Count 4 aggravated burglary - two years
Count 5 armed robbery - two years
Count 6 intentionally causing injury - six months
Count 7 theft - six months
Count 8 aggravated burglary - two years
Count 9 armed robbery - two years
Count 10 false imprisonment - six months
Count 11 common assault - six months
Count 12 handling stolen goods - six months
Her Honour directed that six months of each of the sentences imposed on counts 4 and 8 be served cumulatively upon the sentence imposed on count 1 and, by implication, upon each other, producing a total effective sentence of three years’ detention. A declaration was made regarding 66 days’ pre-sentence detention.
The Director of Public Prosecutions appeals against the sentence on the ground of manifest inadequacy. The particulars read:
“PARTICULARS
In imposing the individual sentences and the total effective sentence the learned sentencing judge:
(a)failed to adequately 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;
(e)gave insufficient weight to the respondent’s prior criminal history and subsequent convictions;
(f)gave insufficient weight to the effects of the respondent’s offending upon the victims; and
(g)gave insufficient weight to the relevant maxima.”
Before turning to counsel’s submissions, I shall say something briefly about the circumstances of the offences, beginning with those committed at Warrandyte on 28th January 2003. The victim was MR, one of the respondent’s heroin suppliers. The co-offenders were Phi Nguyen, Ilias Galiatsos and Lee Wilde. The respondent told them that MR had a lot of money and, although he was living at his parents’ home, his parents were away. The four offenders wore disguises and the respondent knew that Nguyen was armed with a samurai sword. He himself was armed with a large screwdriver. MR tried to run away when they entered the house, but he was assaulted and a demand was made for money and the keys to his safe. When he said that he had nothing to hand over, Nguyen stabbed him to the shoulder and left leg with the sword. Further demands were made while Nguyen held the sword to MR’s throat. The offenders searched the house, found the safe and forced it open. MR was tied up with a blanket over his head. He was found later and taken to hospital with a deep laceration to his leg, a bruise to the left eye and a cut to his left forearm, which required stitching. The respondent and his co-offenders stole approximately $5,000 in cash, together with other property. The respondent received about half the cash.
The offences at Cheltenham on 17th May 2003 were committed in similar circumstances. The respondent and Nguyen knew that the victim, ND, was a supplier of drugs. At about 5.30 a.m. they forced their way into his home wearing disguises. The respondent was armed with a baseball bat and Nguyen was armed with a hammer. There were two other co-offenders, whose identities are not known. They were armed with knives. ND was struck with the hammer and the baseball bat and a demand was made for money and his keys. Money and other property were stolen, including ND’s car. ND suffered a two-centimetre cut to the top of his head.
Shortly after 2.40 a.m. on 16th January 2004 the respondent and one Brendon[1] Coker entered a house in Springvale through an unlocked front door. The occupants were KT, another of the respondent’s drug suppliers, his girlfriend, her mother and her mother’s de facto husband. The respondent and Coker were both disguised. The respondent was armed with a tomahawk and Coker with a broomstick. They demanded money of KT’s girlfriend. She gave them $50 in cash from her handbag. The respondent grabbed the money and demanded more, refusing to let her get past him by holding on to her and telling her not to move. She broke free when her mother and her mother’s husband entered the room. When KT returned home, the respondent pushed him to the floor and demanded money, threatening him with the tomahawk. The offenders fled, having stolen two mobile telephones, a video game, a wallet and the $50.
[1]This is the spelling on the presentment.
The respondent was arrested the next day and his premises were searched. The search revealed an Optus pre-paid SIM card, which had been stolen in the course of a burglary at Southland Shopping Centre on 12th October 2003. That was the foundation of count 12. The respondent made no admissions when interviewed but, on 24th March 2004, he admitted his involvement in the offences the subject of counts 8 to 11. He denied responsibility for the other offences. It was not until 25th August 2004, when he was interviewed at the Malmsbury Juvenile Justice Centre, that the respondent admitted his involvement in all the offences.
The Director acknowledged that there were mitigating circumstances, including the respondent’s youth; his lesser role in the offending than Nguyen; his personal history and background; the family support that is available to him; his plea of guilty and co-operation, which included willingness to supply information regarding his co-offenders[2]; and the remorse that the judge accepted on the basis of the respondent’s record of interview and evidence led on the plea. The Director also accepted that there was favourable material in a psychological report from Ms Elizabeth Warren and reports from the Juvenile Justice Court Unit and the Malmsbury Juvenile Justice Centre regarding the respondent’s suitability for a youth training centre sentence and the progress he had made following the sentence of detention imposed on 26th July 2004. Rehabilitation was important too and the judge had accepted that the respondent had a reasonable likelihood of rehabilitation.
[2]The respondent’s willingness is relevant, but the information was of no real assistance and a statement was not taken. This is not a case to which s.5(2AB) of the Sentencing Act 1991 applies.
Nevertheless, the Director submitted, the offences, spread over three separate episodes of offending, were far too serious for a total effective sentence of only three years in custody. A custodial sentence of at least three years was required in relation to each group of counts and more than the measure of cumulation that her Honour had directed was necessary to take account not only of the separate episodes but also of the respondent’s complicity in Nguyen’s intentionally causing serious injury.
Mr Priest referred to the principles governing Crown appeals and the constraints that are to be observed, but he also submitted that each of the individual sentences was within the range and that the directions for cumulation properly recognised the three separate episodes. Factors personal to the respondent were fundamental to understanding the sentences. Those factors included, in addition to those mentioned above, the respondent’s genuine efforts to conquer his addiction to heroin, the fact that an older and more hardened offender took the lead on the first two occasions and the consideration that the respondent would serve his sentence in protection because of the information he had proffered regarding his co-offenders.
The gravity of the offences the subject of counts 1 to 5, 8 and 9 speaks for itself, but a factor which weighed heavily with the judge was the respondent’s immaturity and the desirability, if possible, of fashioning a sentence that would not impede his continued rehabilitation. Mr Priest asked us to give similar weight to that consideration. He referred to the following passage in the judgment of Fox, J. in R. v. Dixon[3]:
“When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed [sic] than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.”
As the Director pointed out, it is not to be forgotten that Dixon, an 18 year-old rapist, was nevertheless sentenced to six-and-a-half years’ imprisonment with a non-parole period of three years.
[3](1975) 22 A.C.T.R. 13 at 18.
There was, inevitably, reference to the authorities on youthful offenders and the circumstances in which the seriousness of an offence, or its prevalence, means that such objectives as just punishment and general deterrence have to take precedence over rehabilitation.[4] The principles are not really in doubt. R. v. Tran[5] was a culpable driving case, but the following passage is of general application:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicized is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.“
I have omitted the footnotes. One of them acknowledged that the proposition that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence is well supported by authority. The qualifications on that general rule must not be allowed to obscure it, but the seriousness of the present offences means that rehabilitation is only one of the objectives to be pursued.
[4]For two recent examples, see Director of Public Prosecutions v. Lawrence [2004] VSCA 154 at [16] and R. v. Hatfield [2004] VSCA 195 at [11].
[5](2002) 4 V.R. 457 at 462 [14].
I accept the Director’s submission that a longer total period of custody than three years was required, so that a sentence of detention in a youth training centre was not within the range available to the judge, and that that will remain so on re-sentencing even when double jeopardy is taken into account. I do so partly because of the gravity of the offences and their separation in time, but also because of the respondent’s antecedents and subsequent convictions. He is not to be punished for other offences twice, but they bear on specific deterrence and his prospects of rehabilitation. Ms Warren’s report and the Juvenile Justice progress report are not unqualified. The respondent emerges as an immature, but difficult, young man who still has some way to go before he will have put his career of crime behind him.
It would have been open to the judge to impose a sentence of imprisonment but to recommend to the Adult Parole Board that it consider transferring the respondent to a youth training centre pursuant to s.244 of the Children and Young Persons Act 1989. There was evidence on the plea, from a court advice officer based at the Juvenile Justice Unit at the Melbourne Magistrates' Court, that the respondent would be "extremely vulnerable within [the adult prison] system." The Director readily conceded that it would be appropriate for this Court to make such a recommendation if we sentenced the respondent to prison; but the possibility of such a transfer is irrelevant to our decision whether to allow the appeal and to the nature and length of any sentence that we impose. If we pass a sentence of imprisonment, that must be on the basis that the respondent may have to serve every day of it in an adult prison.[6]
[6]See, among other authorities, R.v.Yates [1985] V.R. 41 at 44-45; R.v.R (1992) 62 A.Crim.R. 141 at 144; and Re Jackson [1997] 2 V.R. 1 at 3. Section 5(2AA)(a) of the Sentencing Act is in the same spirit but refers only to the length of time to be spent in custody.
When the Crown successfully appeals against a sentence, the offender is entitled to a discount for double jeopardy because, through no fault of the offender, he or she must stand for sentence all over again. Where there are multiple counts on a presentment, it is unnecessary to discount the individual sentences for double jeopardy, so long as an appropriate allowance is made in the ultimate disposition.[7] The discount should not be excessive but, in a case like this, we should bear in mind the difference in severity between a sentence of detention in a youth training centre and a sentence of imprisonment.
[7]See Director of Public Prosecutions v. Ellis [2005] VSCA 105 at fn.32, where the advantages of that course are listed and examples are given of other cases where it has been adopted.
I propose the following sentences on the individual counts:
Count 1 aggravated burglary - three years
Count 2 armed robbery - three years
Count 3 intentionally causing serious injury - 30 months
Count 4 aggravated burglary - three years
Count 5 armed robbery - 30 months
Count 6 intentionally causing injury - twelve months
Count 7 theft - twelve months
Count 8 aggravated burglary - three years
Count 9 armed robbery - three years
Count 10 false imprisonment - six months
Count 11 common assault - six months
Count 12 handling stolen goods - three months
To compensate the respondent for standing for sentence twice at the instance of the Crown and receiving a more severe kind of sentence, I would direct that only six months of the sentence imposed on count 3, six months of the sentence imposed on count 4, and six months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence imposed on count 1.
That results in a total effective sentence of four-and-a-half-years' imprisonment. In the unusual circumstances of this case, I would fix a non-parole period of two years and recommend to the Adult Parole Board that it consider transferring the respondent to a youth training centre pursuant to s.244 of the Children and Young Persons Act.[8] The time spent by the respondent in detention pursuant to the sentence imposed below will count towards service of the sentence and an appropriate declaration should be made pursuant to s.18 of the Sentencing Act 1991. As count 7 involved the theft of a motor car, the Court must also cancel the
driver licence held by the respondent pursuant to s.89(4)(a)(i) of the Sentencing Act. I do not think it necessary to add a period of disqualification.
EAMES, J.A.:
[8]The Court published its reasons on 13th May 2005 but deferred making any orders until 1st June 2005, to enable the respondent’s solicitors to make a submission to the Adult Parole Board and the Board to consider the matter in advance of sentence.
The learned sentencing judge in this case was clearly, and appropriately, concerned about the vulnerability of the respondent if incarcerated in an adult prison. Although her Honour very carefully and thoroughly addressed other relevant sentencing considerations, it seems likely that the question of the respondent’s vulnerability in adult prison predominated. I can well understand why that was so; it was a humane response to the evidence which was placed before her Honour.
The submissions by counsel who appeared on the plea were careful and thorough. Counsel acknowledged that the offences were very serious and made it clear that the thrust of his submissions was directed towards an outcome of detention in a youth training centre. To that end counsel tendered medical and psychological reports and a juvenile justice report. He supplemented those reports with oral evidence from the respondent’s girlfriend and his mother, the latter’s evidence being particularly powerful as to the effect of his remand in custody in an adult prison for some two months after his arrest. In addition, evidence was given by a court advice officer of the Juvenile Justice Unit at the Melbourne Magistrates’ Court, who said that whilst he was in custody in Malmsbury Juvenile Justice Centre there was real concern that the respondent might be suicidal. The witness said that the respondent would be “extremely vulnerable” in an adult prison.
That evidence was significant and merited weight being given to it. I would be slow to intervene on a Director’s appeal, in these circumstances, but notwithstanding the care taken by the judge I am persuaded that in the result she fell into error. That there was error in the sentencing discretion may be seen by the fact that the sentences imposed did not include any cumulation on count 3, in
recognition of the serious injury that had been intentionally caused on the first occasion. Had there been any cumulation, at all, then the total effective sentence must have exceeded the three year threshold for imprisonment in a youth training centre.
One additional matter which troubled me during the hearing of the appeal was the fact that despite the first robbery episode leading to the serious injury of a victim the respondent joined in on two further occasions of armed robberies in the homes of victims, on the last occasion being armed with a tomahawk, and yet the same sentences for armed robbery and aggravated burglary were imposed for each occasion. I expressed the view that by the third occasion a greater sentence might have been expected for those offences than was imposed for the first occasion. Although I am still inclined to that view, I accept that in some ways the first offence was much more serious than the subsequent offences, and in the circumstances I am content to endorse the approach to re-sentencing which has been proposed by Callaway, J.A.
Otherwise, for the reasons given by Callaway, J.A., I agree that the appeal ought be allowed and the respondent be re-sentenced as his Honour has proposed. I also endorse his Honour’s recommendation to the Adult Parole Board that it consider transferring the respondent to a youth training centre pursuant to s.244 of the Children and Young Persons Act 1989. In that regard I note the evidence of Mr Gene Bell, the court advice officer to whom I earlier referred, and his evidence of the respondent being impressionable and at risk of acting inappropriately in an adult prison, so much so as to “place him at risk quite significantly”.
NETTLE, J.A.:
I agree with Callaway, J.A. that the appeal should be allowed and that the respondent should be re-sentenced as his Honour has proposed.
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