DPP v Leviev; DPP v Poel
[2005] VSCA 250
•17 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 214 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| REHAVO LEVIEV |
| No. 215 of 2005 |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| LEONID POEL |
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JUDGES: | WARREN, C.J., ORMISTON and EAMES, JJ.A. | |
WHERE HELD: | BALLARAT | |
DATE OF HEARING: | 17 October 2005 | |
DATE OF JUDGMENT: | 17 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 250 | |
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Criminal law – Sentencing – Prosecution appeals – Theft of computers worth over $100,000, criminal damage and burglary at two schools on one night – Youthful offenders aged 19 with (effectively) no prior convictions – CBO’s with no conviction imposed on both respondents – Whether manifestly inadequate – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Respondent Leviev | Mr P.G. Priest, Q.C. with Mr T. Kassimatis | T. Magazis & Associates |
| For the Respondent Poel | Mr T.M. Forrest, Q.C. with Mr M.J. Croucher | V. Mavropolous & Associates |
WARREN, C.J.:
I invite Ormiston, J.A. to state his reasons first.
ORMISTON, J.A.:
These appeals are brought by the Director of Public Prosecutions against sentences imposed without conviction on two men, who were 19 years old at the time of the offences, for various counts of theft, criminal damage and burglary. The respondent Leviev pleaded guilty to two counts of theft, two counts of intentionally causing damage to property and one count of burglary with intent to steal. The respondent Poel pleaded guilty to precisely the same five counts. They each received identical sentences, being ordered on each of the counts, without conviction, to undergo a community-based order for the duration of two years commencing on 22 June 2005, with a requirement to attend the Prahran Community Corrections Centre and subject to a number of conditions; in particular, to perform 200 hours of unpaid community work over the two-year period; to attend for educational and other programmes as directed by the relevant regional manager for not less than one month nor more than one year; to undergo assessment and treatment for alcohol and drug addiction as necessary; to submit to necessary medical and psychiatric assessments and treatment; and to undergo assessment for programmes to reduce re-offending. A number of orders were made against each of them to pay compensation to three parties affected by their activities, totalling just over $4,750.
The sole ground of appeal in each case is that the sentence was manifestly inadequate, but particulars were given of the inadequacy, again identical, in substance complaining that the learned sentencing judge failed to reflect adequately the gravity of the offences, to take into account sufficiently general deterrence, to take into account sufficiently specific deterrence, by giving insufficient weight to the effect of the offending upon the victims and to the maximum penalties applicable to the sentences and by giving too much weight to factors of mitigation.
The facts are very simple, although, regrettably, they are not set out in the learned judge's sentencing reasons. Doubtless her Honour correctly referred to the fact that the parties were aware of them and that they appeared in the transcript in, as she somewhat optimistically described, “considerable detail”. It should be observed that it is undesirable for sentencing judges to omit a sufficient description of the circumstances of the offences under consideration unless, most exceptionally, there is an identifiable document which contains an agreed statement of facts. Even then, that should be appended to the sentencing remarks when revised. Otherwise, not merely this Court on appeal but those otherwise interested will not know what the sentencing judge is describing in making his or her remarks.
What occurred was that the two respondents, together with one Panourakis, entered the grounds of the Elsternwick campus of Wesley College at about midnight on 14 July 2004. They forced their way into the lockers of some 35 students by breaking the wooden doors, using a screwdriver and tyre lever (count 2). They then stole some seven notebook computers valued at a little over $20,000, a Yamaha flute valued at $500, $50 in cash and a wallet with $22 inside, and took them away in Leviev's car (count 1). The three men then drove to the St Kilda Road campus of Wesley College, entering the school at about a quarter to one in the morning, but were disturbed by a cleaner. They were persistent, for they returned at about twenty-five past two. They forced an external door and entered the school building, thereby committing the third count, namely that of burglary. They then broke into the lockers of some 99 students, forcing open the wooden doors in the same way (count 5). They proceeded then to steal some 34 notebook computers valued at just over $99,000, three clarinets valued at $600, $45 of fund-raising money, a calculator worth $35, and two sports bags and swimming goggles valued in all at about $95. They were disturbed again, but put the property again into Leviev's car and drove off (count 4).
All computers, with the exception of four, were recovered, but identifying Wesley College labels on them and on some battery cables had been removed. Eleven computers were recovered in a damaged condition and 41 network cables had to be replaced. The respondents gave the same version of events in their records of interview, but that version has not been accepted by the Crown, for it asserted that they were parked nearby and had merely seen a bag on lockers inside the school grounds. They gave an equally unlikely explanation for their choosing also to break into the St Kilda Road campus of Wesley College. Counsel for the Director of Public Prosecutions attempted to suggest that there was some preliminary planning of this bout of thefts, but, so far as the factual material before the Court is concerned, it seems essentially an unplanned escapade, albeit that it had serious consequences and the first offences were followed up by moving to a second campus, where no doubt the respondents thought there were similar easy pickings. Fortunately, video images of the respondents and their co-accused could be shown shortly thereafter on television and the respondents decided to return the computers and other equipment. Each respondent has thereafter been cooperative and indicated an intention to plead guilty from the earliest practicable stage.
After hearing pleas from counsel for each respondent, in which the issue of a community-based order was squarely raised, the learned judge determined that, in all the circumstances, such an order should be made in each case, but without recording any convictions. Her Honour referred to the offences as most serious, and to the serious impact the theft had on the victims, in a personal way so far as the students were concerned, and on the institutions affected in that considerable financial damage was caused. She made reference, inter alia, to the need for deterrence, denunciation and protection of the community. Nevertheless, she pointed to the respondents' cooperation and pleas of guilt, their youth, their remorse, their lack of relevant convictions, their work at the Emerald Hill Mission, and her grounds for believing that rehabilitation was possible in each case.
I shall not elaborate on the factual matters raised on the pleas and on appeal, as these appeals raise no question of principle. Both respondents had come from overseas in their youth, had parents who were separated, and were unsure where their homes were. They were sufficiently young, being 19 at the time of the various offences, and immature, to be characterised as youthful offenders. They were, it must be conceded, well educated by the standards of most youthful offenders who come before the courts. They had both attended Bialik College, though that seemed to have nothing to do with their choice of victims, and they were in the early stages of tertiary education with reasonable prospects. The reports of Dr Healey and Mr Joblin respectively point to no unusual factors and suggest that the offences were committed on the spur of the moment, and for the apparent thrill of the experience, albeit that the items they chose seem to have been capable of easy sale.
If it were not for the fact that I have reached a firm conclusion on the outcome of these two appeals, I should have set out more about the two respondents, and in particular of the two reports to which I have just referred. The Director as appellant rightly points to an inadequate analysis of those reports, and the absence of detail as to the mitigating factors revealed in the reports. Nevertheless, those factors are reasonably obvious from what I have already said, from the matters in those reports which need not be recounted, and from the other evidence given, which in particular referred to the voluntary work done by each of the respondents at the Emerald Hill Mission.
In my opinion, all of this showed a series of mitigating factors which made it desirable to treat the respondents as each youthful offenders, exhibiting proper remorse for their acts, and each sufficiently capable of rehabilitation as to make it preferable that they be treated in a way that obviated any form of custodial order, and that they should be made subject to appropriate orders permitting disciplined supervision by way of community-based order or the like. They were properly treated as effectively first offenders, so that it is and was desirable from the public perspective that their rehabilitation be encouraged by orders of this kind. Custodial orders would merely have exposed them, most likely, to influences which would have been deleterious to that rehabilitation, making it more likely, rather than less likely, that they would re-offend and thus cause future harm to the public in general.
If there be any doubt about the judge's ultimate orders, it can only be that she chose to make the two-year community-based orders without recording any convictions. Some may have thought convictions more appropriate, having regard to the seriousness of the various offences to which the respondents pleaded guilty. One can well understand the anger and concern of the victims, both schools and pupils, but they should understand that those who might suffer from these kinds of activity in the future will more probably be better served by orders encouraging rehabilitation rather than by dogmatic punishment. If the offences had been higher up in the criminal calendar, resulting, for example, in physical injuries to the victims, or if the respondents had been older, or if they had committed offences on several other previous occasions, then more stringent sentences might well have been expected. It is possible that I might have imposed convictions in each case if I had been the sentencing judge, but this element is essentially a matter of discretion, and the Court, on a Director's appeal, is doubly limited in what it can do. In the first place, the decision on this point being discretionary, then ordinary principles make it indeed difficult for the appellant to succeed where no error of principle is evident. Secondly, these are appeals brought by the Director of Public Prosecutions, whose ability to succeed on such appeals has been qualified over many years by principles laid down by the High Court and by this Court, in particular in R. v. Clarke[1]. The correctness of those principles have been affirmed by the High Court only last year in GAS v. The Queen and SJK v. The Queen[2].
[1][1996] 2 V.R. 520.
[2](2004) 217 C.L.R. 198 at 204.
The other matters raised on behalf of the Director go essentially to the way in which the judge's discretion was exercised. Most, if not all, of these were referred to in one way or another by the judge, although not always in great detail. All in all,
none of these points demonstrates that the judge erred in her discretion in deciding not to impose convictions. All the matters were carefully refuted in the detailed outlines put before this Court on behalf of the respondents. Rehabilitation, and thus the protection of the public in the long term, may properly have been seen to be best promoted by not imposing convictions on young men at the outset of their careers, who may be seen to have the capacity to overcome their recent bad conduct. One would hope that the schools and their pupils affected might in particular understand why forgiveness, to a calculated degree, of one bout of misconduct at an early stage in a person's life might best encourage rehabilitation and reform, all to the public good.
I would dismiss the appeals.
WARREN, C.J.:
I agree.
EAMES, J.A.:
I would also dismiss the appeals for the reasons given by Ormiston, J.A.
WARREN, C.J.:
The order of the Court is that the appeals are dismissed.
(Mr Priest and Mr Forrest sought certificates under s.15 of the Appeal Costs Act.)
WARREN, C.J.:
The Court will also grant certificates pursuant to s.15 of the Appeal Costs Act.
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