DPP v Lebehen
[2011] VSCA 75
•17 March 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0733
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| GREGORY MICHAEL LEBEHEN | Respondent |
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| JUDGES | ASHLEY, NEAVE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2010 and 17 March 2011 |
| DATE OF JUDGMENT | 17 March 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 75 |
| JUDGMENT APPEALED FROM | R v Lebehen (Unreported, County Court of Victoria, Judge Smallwood, 24 June 2009) |
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CRIMINAL LAW – Appeal - Sentence – Crown appeal against sentence – Whether sentence manifestly inadequate – Whether appellate intervention warranted – Consideration of breach of parole and time owed to Parole Board – Consideration of effect of offences for which respondent subsequently sentenced – Principle of totality – Intervention of Court not warranted as a matter of discretion - Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr M Croucher | Robert Stary Lawyers |
ASHLEY JA:
I will ask Weinberg JA to give the first judgment.
WEINBERG JA:
On 22 June 2009, the respondent pleaded guilty in the County Court at Melbourne to two counts of burglary, six counts of theft, one count of attempted burglary, two counts of aggravated burglary and three counts of false imprisonment. He also pleaded guilty to one summary charge, that of making a false report to the police.
On 24 June 2009, he was sentenced as follows:
Count Offence Maximum Sentence Cumulation 1 Burglary 10 years’ imp 6 months’ imp 2 months 2 Theft 10 years’ imp 3 months’ imp - 3 Attempted burglary 5 years’ imp 3 months’ imp - 4 Burglary 10 years’ imp 6 months’ imp 2 months 5 Theft 10 years’ imp 3 months’ imp - 6 Aggravated burglary 25 years’ imp 9 months’ imp 3 months 7 Theft 10 years’ imp 3 months’ imp - 8 False Imprisonment 10 years’ imp 12 months’ imp 4 months 9 False Imprisonment 10 years’ imp 12 months’ imp 4 months 10 Theft 10 years’ imp 3 months’ imp - 11 Theft 10 years’ imp 3 months’ imp - 12 Aggravated burglary 25 years’ imp 9 months’ imp 3 months 13 False imprisonment 10 years’ imp 18 months’ imp base sentence 14 Theft 10 years’ imp 6 months’ imp - Summary charge Make false report to police 1 year imp 1 month imp - Total Effective Sentence = 3 years’ imprisonment
Non-Parole Period = 2 years
By notice of appeal filed on 20 July 2009, the Director of Public Prosecutions (‘the Director’) contends that the individual sentences imposed, a total effective sentence of three years' imprisonment, and the non‑parole period of two years are all manifestly inadequate. In addition, the Director argues that there ought to have been some cumulation in respect of counts 2, 3, 5, 7, 10, 11 and 14.
The particulars supplied in support of Ground 1, namely that of manifest inadequacy, are very much in a standard form. Put simply, the Director contends that the sentences imposed reflected neither the gravity of the offending, nor the culpability of the offender.
For his part, the respondent acknowledges that the individual sentences, and the total effective sentence, could well be regarded as lenient. He submits, however, that no error of the kind that would warrant the intervention of this Court has been demonstrated. Alternatively, the respondent submits that, having regard to the principle of double jeopardy, which, I interpolate, is still relevant to the resolution of this appeal, [1] the appeal should be dismissed in the exercise of the Court's discretion.
[1]Section 289(2) of the Criminal Procedure Act 2009, which provides that in considering whether an appeal should be allowed this Court must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed, does not apply to the sentence under challenge in this case.
The nature of the offending
It is probably convenient to consider the respondent's offending as involving three separate phases.
The offences the subject of counts 1 and 2 (burglary and theft) were said to have been committed between Friday, 7 March and Tuesday, 11 March 2008. The respondent broke into a unit in Upton Road, Windsor, by using a boot wrapped in a yellow top to smash a bedroom window. He climbed in through that window. Whilst in the premises, he stole property belonging to the owner who happened to be away for the long weekend. The property included a DVD player, a Canon camera, a Nintendo Wii and a bottle of whisky. The total value of the stolen items was $1,650. He sold the stolen goods and used the proceeds to purchase drugs.
Counts 3 to 10 inclusive involved a series of offences committed on the morning of Wednesday, 26 March 2008, all within the same general area. Count 3 attempted burglary) concerned an attempt to break into a house in Winmalee Road, Balwyn. Several occupants of the house happened to be present at the time. When one of them raised the alarm, the respondent ran away.
Count 4 (burglary) concerned a break‑in that took place shortly afterwards. After leaving the house at Winmalee Road, the respondent scaled a series of fences and entered the backyard of another house located in Linckens Crescent, Balwyn. The occupier of that house heard the sound of glass breaking at the rear of the premises. He saw the respondent attempting to climb through a broken window. When he was detected, the respondent apologised and ran off.
Count 5 (theft) concerned a mountain bike valued at $500. The respondent, having scaled more fences, arrived at a house located in Yerrin Road, Balwyn. That street backs onto Linckens Crescent. The respondent went into the backyard, and then moved out towards the front yard, where the mountain bike was kept. The owner of the mountain bike saw what was happening and chased the respondent. He threw the mountain bike against a wall, exchanged words with the owner and then decamped.
Counts 6, 7, 8, 9 and 10 were all closely related. Count 6 (aggravated burglary) concerned a break‑in by the respondent to a house situated about 150 metres from Yerrin Road in Jurang Street, Balwyn. The respondent smashed a window at the rear of the house. He entered a bedroom where two 14‑year‑old boys were asleep. The boys were awoken. The respondent told them that he had stabbed and killed a man and was on the run from the police. It seems that, at first, the boys did not believe him.
However, when they saw that he had blood on his hands and clothing (the result of his having, earlier that morning, smashed several windows) and also saw and heard the police helicopter flying overhead, they soon changed their minds. It was common ground that the boys were terrified by their experience. Their fear was heightened, understandably, when the respondent, having detained them for about 30 minutes, threatened to come after them if they contacted the police. He accentuated the threat by recording, in writing, their address.
Counts 8 and 9 (false imprisonment) concerned the unlawful detention of each of the boys while the respondent was in their room with them.
Counts 7 and 10 (theft) involved various items of clothing, a laptop computer, and the sum of $120 in cash which the respondent stole from the boys before he made his escape.
The third set of offences which gave rise to the counts on the presentment occurred several weeks later, on the morning of Saturday, 12 April 2008. The respondent stole a 1988 Holden Commodore Berlina sedan parked outside a panel beating shop in Susan Street, Eltham. A short time later, as he was driving along Lower Plenty Road, Rosanna, a police vehicle heading in the opposite direction passed close by. Fearing that he had been detected, the respondent drove down a side street and into a residential area. He lost control of the vehicle and collided with the front fence of a house in Rowell Street. The vehicle was said to be worth $8,000 but was so extensively damaged as to be written off by the owner's insurer. This offending gave rise to count 11.
Later that morning, the respondent broke into a house close by, in McAuley Street, Rosanna. The occupant, a woman, ran upstairs and hid in the bathroom. She leant against the bathroom door to prevent it from being opened. The respondent tried to force his way in, and eventually succeeded. The woman was terrified, all the more so when the respondent told her, just as he had the two boys some weeks earlier, that he had just stabbed someone and that he was hiding from the police. Her fear was scarcely assuaged by his assurance to her that he would not harm her. The respondent then made several telephone calls to an associate, in order to arrange to be collected. He detained the woman against her will for about the next half hour. This was the false imprisonment which was the subject of count 13.
Turning to count 12 (aggravated burglary), this relates to the respondent's entry into the premises in McAuley Street, either knowing or being reckless as to the presence of another in that house. When the respondent left the premises, he took with him two laptop computers. The occupant confronted him and pleaded with him not to take them. He threatened her, and told her to go back inside the house. The respondent later sold the two laptop computers for $400 cash. He used that money to purchase drugs. The computers were valued at approximately $3,200. They were never recovered. This offending gave rise to count 14.
The summary charge arose in the following circumstances. On Monday, 14 April 2008, uniform police spoke to the respondent in the city. Fearing that he would be arrested if they discovered his true identity, he gave them a false name and address. He also falsely reported to them that he had been robbed by four unknown aboriginal persons. He made a written statement to the police detailing the false allegations.
The respondent was arrested on the following day. When interviewed by the police, he made full admissions. He was entirely cooperative. He volunteered his involvement in relation to the McAuley Street break‑in, and thefts. The police had no reason to suspect him of involvement in those offences and, but for his admissions, his guilt in relation to those matters may never have been able to be established.
The respondent’s background
The respondent was, at the time of sentencing, aged 27. He had numerous prior convictions. Indeed, these included 86 prior convictions for theft, 45 prior convictions for burglary and three prior convictions for aggravated burglary. These were the product of 15 separate court appearances over the period January 2000 to October 2006. Prior to the present offences, all of the respondent's court appearances had been in the Magistrates' Court. He had received a number of what might be thought to be lenient dispositions, including fines, youth training centre detention and community based orders. He had also been sentenced to an intensive correction order, a combined custody and treatment order and a wholly suspended sentence.
On 22 June 2006, the respondent was finally sentenced to a significant term of imprisonment. He was dealt with, on that occasion, for 17 counts of burglary, 18 counts of theft and four other counts. The offending took place between 11 October 2005 and 15 June 2006. The respondent was imprisoned for a total of 40 months, with a non‑parole period of 25 months.
On 9 January 2008, the respondent was released on parole in relation to the sentence recorded on 22 June 2006. On 19 March 2008, his parole was cancelled. That was due to non-compliance with the terms of his parole rather than any re‑offending. The Parole Board was obviously unaware of his further offending at that stage. As previously indicated, the respondent was arrested in relation to the current matters on 15 April 2008. In effect, he owed the Parole Board a period of about one year and three months at that stage. Of course, counts 1 and 2 on the current presentment were committed between 7 and 11 March 2008. Accordingly, that offending constituted a breach of his parole, thereby enlivening s 16(3B) of the Sentencing Act 1991.
The respondent called in aid, on his plea, the fact that he pleaded guilty at the earliest practicable opportunity, that he had cooperated fully with the police and that he had shown genuine remorse. Of particular importance, he had volunteered his involvement in the McAuley Street offences, the police having no reason to suspect him at that stage of having committed those crimes.
The respondent relied upon a number of mitigating factors that were outlined to the judge. These included his age and the tragic circumstances surrounding the death of his young daughter in a car accident two months or so before the commission of these offences. His Honour referred to a report by a forensic psychologist tendered on the respondent's behalf, and also a report from Moreland Hall regarding his attempts to overcome his drug addiction. Both reports spoke of the respondent as having engaged cooperatively in counselling and having shown considerable motivation to overcome that addiction. The psychological report expressed concern at the prospect of the respondent becoming institutionalised.
There were other unhappy aspects to the respondent's life. His father had died in January 2009 from an overdose of anti-depressants. A brother had also previously died, apparently having suicided. The respondent had grown up in the Werribee area, his parents having separated when he was still quite young. His father had been a heavy drinker, and had used both marijuana and cocaine. It seems that he had been physically abusive towards the entire family, including the respondent. After his parents separated, the respondent had no contact with his father. He reacted badly to the family situation. He continually ran away from home and was taken into care at the age of 15. Not surprisingly, according to the judge, the respondent soon turned to heroin. It was that heroin use that gave rise to most, if not all, of the numerous convictions subsequently sustained.
The respondent was educated up to year 10. He left school after a dispute with the school principal. He had had only one significant relationship, that being with the mother of his now deceased daughter. After his daughter was killed, he drank heavily and discovered drugs other than heroin. He began using benzodiazepine and ‘ice’. He also began to use Xanax. The judge accepted that, from the time of his daughter's death, his life was 'essentially out of control' through the use of these drugs. His Honour also accepted the psychologist's report that he was in a state of reactive depression and distress as a result of that death.
His Honour did not accept that the respondent's moral culpability for his offending had been reduced by his depression.[2] He did, however, take the Verdins principles into account, to a limited degree, in relation to the burdensome nature that imprisonment would impose upon the respondent.
[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Of critical importance to an understanding of the judge's ultimate disposition of this matter were his Honour's remarks regarding the respondent's situation as it stood on 24 June 2009. His Honour said:
29.The real difficulty in your sentencing situation, Mr Lebehen, is that, as I understand it, in around March 2008 your parole from an earlier gaol sentence, 25 months of parole which was owing, was breached for non-compliance. You have now been in custody for some 14 months with a month to go on breach of parole, that is an unusual situation to find in sentencing. That breach of parole, as I understand it, does not relate to this offending, it is through non-compliance which is probably attributable to the death of your daughter.
30.The difficulty I have is that imposing an appropriate sentence I must have regard to totality. I must not impose a crushing sentence and I must be heedful of the danger of you becoming institutionalised. Any sentence that I impose, because I do not see exceptional circumstances for the purposes of s.83, will not commence until your parole is finished. They might grant you parole tomorrow and start it, I do not know. By the time the sentence that I impose starts you will already have been in custody for 15 months.
31.You are still only 27. It is not a mathematical equation but, for reasons of totality I am bound to reduce the sentence I would have otherwise imposed because of the fact that you have not been in custody for that extended period of time. I have also, in the situation bearing in mind totality, had to give degrees of accumulation which are less than I would have given in a different scenario.
32.There are 14 counts and there is very little I can do about that other than try and reflect the seriousness of the offending by cumulation of some of the counts. Your prospects for rehabilitation have got to be described as shaky. The prospects of you re-offending in a situation that existed prior to your being incarcerated would have to be regarded as relatively high. If you are able to, in the course of your custody, apply yourself to the various courses that are available and other matters it may be that you can control the loss of control that you suffer when using drugs. If you can do that the risk of you re-offending should be slight. If you can not do that, I think it is fairly evident to anybody experienced in this jurisdiction that you will spend the rest of your life in gaol, that is really a matter for you, there is not much I can do about that.
33.In any event, taking into account as best I can all the sentencing principles, taking into account the fact that you've already been in custody for 15 months for which you receive no actual credit in respect of these matters, taking into account the question of totality and balancing that against what I consider particularly in relation to Ms Purvis to be serious offending I impose the following sentences on each count.
Contentions
The Director's position in this appeal is quite simple. He contends that a total effective sentence of three years, with a non‑parole period of two years, was entirely outside the ambit of a proper exercise of the sentencing discretion. He submits, in particular, that the sentences for aggravated burglary and false imprisonment were individually far too light, and that there ought to have been greater cumulation between the sentences imposed, a number of which were made wholly concurrent.
The respondent's submission is equally simple. He contends that, although it might be said that the individual sentences, the total effective sentence and the non‑parole period were lenient, they were not manifestly inadequate and could not be said to have been afflicted with error. Alternatively, if there was 'clear and egregious' inadequacy, the appeal should nonetheless be dismissed in the exercise of the Court's discretion, particularly when one has regard to the principle of double jeopardy.
Conclusion
It seems to be common ground that the sentencing judge took all relevant matters into account when sentencing the respondent. His Honour had regard to the maximum penalty for each offence, the early plea of guilty, the remorse shown, the admissions to offending that the respondent could not recall, and his volunteering of his offending in relation to counts 12, 13 and 14.
His Honour also had regard to the respondent's prior criminal history. He referred specifically to the circumstances of the offending, including the effect upon, in particular, the two boys the subject of counts 8 and 9 and the woman the subject of count 13. He referred to the victim impact statements. He noted the importance of deterrence, both general and specific, and the need to promote other relevant sentencing goals, including punishment, protection of the community and denunciation.
At the same time, his Honour had regard to the respondent's erratic mental state at the time of the offending and his tragic personal circumstances. He recognised that the respondent's prospects of rehabilitation were 'shaky', and that there was a significant risk of his re‑offending. That finding was moderated to some degree by reference to the respondent's attempts at rehabilitation.
Considered in isolation, a total effective sentence of three years, with a non‑parole period of two years, for this offending would, in my view, properly be regarded as manifestly inadequate. As I understand the position adopted by counsel for the respondent, that was not essentially challenged. The difficulty from this Court's point of view is precisely that identified by the sentencing judge. When one has regard to the position that confronted his Honour when he sentenced the respondent, it is clear that the principle of totality had to be given appropriate weight. As I have previously said, the respondent had been released on parole in January 2008. He was taken into custody on 15 April 2008. By the time he came to be sentenced on 24 June 2009, he had already been in prison for just over 14 months, but owed the Parole Board 15 months. In practical terms, therefore, his total effective sentence of imprisonment of three years for these offences, when combined with the period owed to the Parole Board, equated to a total of about four years and three months. Similarly, in practical terms, his non‑parole period of two years, when combined with the period owed to the Parole Board, equated to a total of about three years and three months.
To make matters more difficult still, we were told during the hearing on the first day of this appeal that on the very next day after the respondent was sentenced for these offences, he was dealt with in the Magistrates' Court for a series of offences, none of which, of course, were to be regarded as prior convictions. It seems that on 25 June 2009, the respondent was sentenced to a term of three years and six months, with a non‑parole period of 30 months, for a series of burglaries, thefts and other related offences.
In addition, the respondent was dealt with again in the Magistrates' Court in May 2010, where he received a straight sentence of eight months, six months of which were to be concurrent with existing sentences. Finally, in August 2010, the respondent received a further sentence of six months' imprisonment, again for offences of a similar nature.
We were told this morning that the current situation (the matter having been back to the Supreme Court in order to regularise a technical error made by the magistrate who imposed the sentence of three years and six months, with a non‑parole period of 30 months, in June 2009) is that the earliest date upon which the respondent is now eligible to be released for parole is 24 February 2012. That, of course, is a period just short of four years from the time that he went into custody on 15 April 2008. We were told that the respondent will have served his total effective sentence, if he is refused parole, on 14 September 2012, a period of about four and a half years or thereabouts from the time that he first went into custody.
The Crown were invited, on the previous occasion, to consider whether the appeal would be pursued. This morning the Crown indicated that the decision had been made that the appeal would continue, and that what was sought was an increase in the total effective sentence from three years to four years, and an increase of the non‑parole period from two years to two years and six months. The Court was given an explanation as to how that two year and six month period non-parole period sought by the Crown had been arrived at. Essentially, the Crown's position today remains that the individual sentences, in relation to some of the counts at least, are manifestly inadequate and should be adjusted by this Court.
The principles that govern Crown appeals against sentence are, of course, well established and need not be set out here. It is sufficient to say that mere inadequacy, even if established, is not a basis upon which this Court will ordinarily intervene. There must be something more. Some judges would, no doubt, have imposed heavier individual sentences and ordered greater cumulation than his Honour did. I do not underestimate the seriousness, in particular, of the aggravated burglary and false imprisonment counts. I would myself have thought that heavier individual sentences were warranted on those counts. I also consider that a greater degree of cumulation would have been warranted in relation to the two counts of false imprisonment involving the young boys, counts 8 and 9.
I have given this matter anxious consideration. Notwithstanding what I have said about the seeming inadequacy of these individual sentences, at least when viewed in isolation, the position changes when one has regard to the effect upon the respondent of having to serve a further 15 months for breach of parole, and still further periods in relation to the offences for which he was subsequently sentenced. The respondent’s current earliest release date means that he will have had to serve close to four years’ imprisonment before being eligible for parole. There is a distinct possibility that he may have to serve four and a half years imprisonment before completing his sentence. That is, in my opinion, sufficient.[3] Accordingly, I am not persuaded that the intervention of this Court is warranted in this case. It follows that I would, at least in the exercise of discretion, dismiss this appeal.
[3]The principle of totality must, of course, be taken into consideration.
ASHLEY JA:
For the reasons stated by my brother Weinberg JA, I agree that the appeal should be dismissed.
NEAVE JA:
I agree also.
ASHLEY JA:
The Court's formal order is that the appeal is dismissed.