DPP v Mourkakos
[2007] VSCA 312
•19 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 204 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER MOURKAKOS |
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JUDGES: | MAXWELL P, NETTLE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 December 2007 | |
DATE OF JUDGMENT: | 19 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 312 | 1ST REVISION 21/12/2007 |
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CRIMINAL LAW – Sentencing – Crown appeal – Intentionally and recklessly causing injury, aggravated burglary, affray, criminal damage – Manifest inadequacy of individual sentences and total effective sentence – Whether youth and prospects of rehabilitation given weight disproportionate to gravity of offences and general and specific deterrence – Whether detention in Youth Justice Centre appropriate – Good prospects of rehabilitation – Suspended sentence imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P G Priest QC with Mr S T Russell | Leanne Warren & Associates |
MAXWELL P:
I have had the benefit of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree that the appeal should be disposed of as her Honour proposes. Subject to what follows, I do so for the reasons which her Honour gives.
As her Honour has noted, the sentencing judge placed great emphasis on the respondent’s prospects for rehabilitation. Having said that the ‘indiscriminate and mindless violence’ in which the respondent had engaged was deserving of strong condemnation, his Honour went on:
Nevertheless there can be no doubt that the community has a strong interest in seeking to ensure that young people learn from their mistakes, even bad ones, and are given the opportunity to put them behind them and become law abiding and contributing members of the community. It is right for the individual young person and it is right for the community. Rehabilitation therefore is an important matter. Prison should be the disposition of last resort.
I respectfully endorse those remarks. His Honour was confident that the time the respondent had spent in adult gaol made it likely that he had learnt his lesson. It was on that basis that the judge imposed terms of imprisonment which did not exceed the period the respondent had already served. It is important to note that, while we have come to the view that the sentences imposed were manifestly inadequate, we have reached the same conclusion as his Honour did about the respondent’s strong prospects of rehabilitation.
We have, of course, the advantage of knowing how well the respondent has performed over the six months since he was sentenced. As Mr Riordan of Youth Justice states in his recent report to the court –
Peter has worked hard to stabilise his life, despite the many life stressors he is facing. Generally, life appears to be the best it has been for him for several years. Peter is in a caring relationship and he has returned to playing competitive sport three times per week … . In addition, he has secured employment, which has helped build a sense of achievement and financial stability. Furthermore, Peter has been compliant with his community based order. There is no doubt that Peter’s life goals are different from that of his initial contact with Youth Justice. He now has a long term view of his life and is thinking more about his future and what he needs to do to sustain positive change for him and his family.
And again:
… Peter has matured and developed considerably, especially since his release from adult custody. He appears to have become a more mature and responsible young man. This is evident by his commitment to his two jobs and simultaneously juggling the requirements and rigours of his community based order. The writer has also noticed that Peter has displayed a more caring attitude for the well being of his ageing parents.
…
Peter stated to the writer that his drinking habits have altered significantly since his release from custody. He stated that he is a moderate drinker, predominantly because he can see the link between his anger and alcohol. He does not want to get into further trouble …
In short, the respondent has grasped the opportunity which he was given by the sentencing judge. The judgment which his Honour made, about the respondent’s ability to become a law-abiding and contributing member of the community, has thus far been fully vindicated.
NETTLE JA:
I agree with Dodds-Streeton JA.
DODDS-STREETON JA:
This is an appeal by the Director of Public Prosecutions against the sentence passed on the respondent, Peter Mourkakos, by a judge of the County Court on 5 June 2007.
On that day, after a plea in mitigation of sentence, in which Mr Stephen Riordan, a Senior Court Advice Officer of the Melbourne Central Courts Unit, the respondent’s sister, Ms Sandra Salisbury, and his friend, Mrs Marisa Ambelidis, gave evidence on his behalf, the respondent, who was born on 23 September 1987, was sentenced as follows:
In relation to Presentment C0605070 (‘the first presentment’):
Count 1 Intentionally causing injury 2 months’ imprisonment Count 2 Recklessly causing injury 1 month imprisonment Count 3 Recklessly causing injury 1 month imprisonment Count 4 Aggravated burglary 3 months’ imprisonment Count 5 Affray 1 month imprisonment Count 6 Criminal damage 2 months’ imprisonment Count 7
Possession of an unregistered handgun
No penalty imposed
Count 1 was the base sentence. Two weeks of count 2, two weeks of count 3, two months of count 4, two weeks of count 5 and one month of count 6 were ordered to be served cumulatively.
In relation to Presentment U03048221 (‘the second presentment’):
Count 1
Affray
Community based order with conviction
Count 2
Intentionally causing injury
Community based order with conviction
Count 3
Intentionally causing injury
Community based order with conviction
Count 4
Stalking
Community based order with conviction
On the first presentment, the total effective sentence was a term of imprisonment of six months and two weeks. It was declared that the respondent had been held in custody for a period of 201 days in relation to the offences and that the period reckoned to be already served under the sentence was the whole period of six months and two weeks. The effect of that sentence was that the respondent was not required to serve any further term of imprisonment.
The community based order to which the respondent was sentenced on the second presentment commenced on 5 June 2007 and ended on 4 June 2009. It was subject to specified core conditions and to additional program conditions requiring the respondent to be supervised by a community corrections officer; attend educational or other programs as directed for a period of not less than one month or more than one year; undergo assessment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed; and to submit to testing for alcohol or drug use as directed.
The maximum penalty for aggravated burglary was 25 years’ imprisonment,[1] for intentionally causing injury was ten years’ imprisonment[2] and for recklessly causing injury was five years’ imprisonment.[3]
[1]Crimes Act 1958 s 77.
[2]Crimes Act 1958 s 18.
[3]Crimes Act1958 s 18.
The respondent had a Children’s Court conviction in 2002 when he was aged 14, involving six armed robberies and three attempted armed robberies, for which he was placed on probation.
On 5 June 2007, the sentencing judge also sentenced the respondent’s co-accused, Foti and Arthur Kanakopoulos, who also pleaded guilty.
The Facts
The circumstances giving rise to the offences were as follows:
At about 1am on 25 March 2006, the respondent and his companions, Arthur and Foti Kanakopoulos, became involved in a fight at the Limestone Café in Northcote, initiated when the respondent, who was intoxicated and aggressive, argued with another person present, Harry Vlahos, and threw a beer bottle at him, lacerating his head. About 90 people were present in the café at the time. More people became involved in the fight. Bill Vlahos, Harry Vlahos’s companion, was punched on the face and head, suffering lacerations and bruising. Peter Theodore, a security guard, who grabbed the respondent after his assault on Bill Vlahos, was kicked in the ribs six times and punched by unknown associates of the respondent. He suffered bruises to his ribs.
The fight spilled over into the street and continued for a time, after which the respondent and his companions left the scene. The café was shut and secured and the three injured men attended hospital in order to have their injuries treated. Bill Vlahos was found to have a one centimetre laceration to his lip, three centimetre and two centimetre lacerations to his forehead and swelling in his right occipital region. He required sutures and follow up treatment. Harry Vlahos was treated for lumps and bruises. Peter Theodore was treated for suspected broken ribs. None of those injured persons made a victim impact statement.
About an hour after having left the scene, the respondent, Foti and Arthur Kanakopoulos and four other unidentified males, one of whom was armed with a baseball bat and a knife, returned to the Limestone Café.
A bystander, Vince Mangion, seated in a parked car outside the café, was menaced by the respondent’s group. A bottle was thrown at his car and its panels were beaten with a baseball bat.
The respondent and his co-accused then kicked open the front windows of the café demanding to confront the security staff. A staff member, Anthony Naxiakis (who was cleaning up after the earlier incident), was threatened with a knife, struck on the head with a glass, and, when he fled, was lacerated on his back from slashing with the knife. The man with the knife also threatened other people. Bottles, glass and windows were smashed. Chairs and furniture were thrown. Another staff member, Charbel Asmar, was hit in the face and cut under the right eye. The respondent’s party then smashed the premises with baseball bats, causing damage costing about $18,000.
The respondent was interviewed by police several days later and largely made no comment. He was arrested on 30 March 2006 and, after the execution of a search warrant revealed two imitation pistols in a bedside drawer at his home, was charged with possession of unregistered handguns (charge 7). He was charged with counts 4, 5 and 6 in relation to the events at the Limestone Café.
The respondent, although aged 18, was detained in custody in adult facilities for 48 days before being granted bail on 16 May 2006 by Kellam J in the Supreme Court.
His bail conditions included a curfew confining him to home between 8.45pm and 6.15am each night and obedience to the directions of Juvenile Justice, which entailed, inter alia, attendance at 22 supervisory appointments lasting from one to one and a half hours each.
The respondent faithfully observed the bail conditions and responded well until 26 December 2006 when, in breach of the curfew, he attended a St Kilda nightclub. There he again encountered Harry Vlahos, a victim of the previous violence at the Limestone Café and Mr Mortis, a security guard, who was also present during the Limestone Café incident. The respondent approached them aggressively, a bottle was swung at Mr Mortis’s head by a companion and a fight broke out. The respondent and members of his group proceeded to kick, punch and strike Messrs Mortis and Vlahos with bottles. Mr Mortis suffered a cut ear and pain to his head and arm. Mr Vlahos suffered pain and bruising to the face, arms and body.
On 27 December 2006, the respondent telephoned Mr Mortis several times and abused and threatened him, warning him not to make a statement to the police. The Crown opening described the telephone contact with Mr Mortis as follows:
Mourkakos told Mortis: Don’t make a statement to police, your friend Harry is a fat cunt, tell him I’m going to fuck him, his brother, his father and his whole family. I got friends, my fathers got friends. You’re just a little bitch, where were you when I was kicking your mate Harry on the floor? Mourkakos further stated he knew where Mortis worked and where he lived. Mortis swore at him and hung up. Mourkakos called again two other times but Mortis did not answer. On 28 December Mortis received two other calls and during the second one Mourkakos said “Run you pussy run!” Mortis again swore at him and hung up.
The respondent was apprehended almost immediately. After first being detained in local police cells and moved round, he was detained in an adult prison.
He was aged 18 years and six months at the time of the incidents at the Limestone Café and was aged 19 years and three months at the time of the incident at the St Kilda nightclub.
The Judgment below
The sentencing judge acknowledged that the respondent, who lived at home with his parents in Northcote at the times of the offending, had family support from loving parents, a supportive older sister and his friend, Ms Ambelidis. The judge placed particular weight on the evidence of Mr Cummins, a consultant psychologist, and Mr Riordan, a Senior Court Advice Officer of Youth Justice at the Melbourne Central Courts Unit.
Mr Cummins examined the respondent on 23 May 2007. He did not consider him to have a personality disorder or any psychological or psychiatric condition, although he had a problem with alcohol and binge drinking, had been a somewhat rebellious adolescent and was immature. Mr Cummins noted that the respondent was attending Alcoholics Anonymous meetings and had not drifted into drugs. Mr Cummins regarded him as highly motivated not to re-offend and took an optimistic view of the future.
Mr Riordan, who had 22 supervisory appointments (each of one to one and a half hours’ duration) with the respondent while he was on bail, made a positive assessment, despite the respondent’s re-offending in December 2006. He considered that alcohol consumption played a major role in the respondent’s offending. He was favourably impressed by the respondent’s compliance with the curfew up to December 2006, although it had impeded his soccer and work. He also considered the respondent’s 22 attendances were exceptional.
Both Mr Cummins and Mr Riordan considered that the respondent would be assisted by further supervision and counselling.
The sentencing judge also had regard to character evidence in favour of the respondent (which indicated the offending to be out of character) and to an offer of employment as an apprentice carpenter.
The sentencing judge acknowledged that the Limestone Café incident:
[w]as a disgraceful course of conduct by a bunch of apparent hooligans. It was indiscriminate and mindless violence causing considerable fear to innocent people and deserving of strong condemnation.
Of the respondent’s offending at the St Kilda nightclub and his telephone stalking of Mr Mortis, the judge stated that ‘these are serious offences’ and observed that:
[p]articularly in returning to smash up the premises in High Street, Northcote and assaulting people but also the violent attacks on [the] other three occasions were disgraceful behaviour. In sentencing you, a Court is required to clearly denounce such conduct and to seek to deter you and others from engaging in conduct of a similar kind.
While recognising that the offences were serious and required denunciation and general and specific deterrence, the sentencing judge primarily emphasised the respondent’s youth and his prospects of rehabilitation. He recognised the community’s strong interest in ensuring that young people learn from their mistakes.
The judge also recognised that the respondent had already been punished by imprisonment in adult facilities after the Limestone Café incident, followed by strict bail conditions and subsequent imprisonment in adult facilities after the St Kilda nightclub incident. He observed that, having regard to the period of time the respondent had already spent in jail, it was not appropriate to impose punishment by unpaid community work. His Honour stated:
In my judgement, the period of time that you have spent in prison has been sufficient punishment. The purpose of the community based order is to facilitate your rehabilitation by requiring a further period of supervision.
Grounds of Appeal
The Director of Public Prosecutions appeals against the sentence on the following grounds:
The total effective sentence and the individual sentences imposed and the community based order are each manifestly inadequate.
In imposing the total effective sentence and the individual sentences and in ordering a Community Based Order, the learned sentencing judge
a)failed to adequately reflect the gravity of the offence 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)gave too much weight to factors going to mitigation;
d)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
e)gave insufficient weight to the effect of the offence upon the victim;
f)gave insufficient weight to the maximum penalties for the offences;
g)gave too much weight to the youth of the Respondent;
h)gave insufficient weight to the Respondent’s relevant criminal history; and
i)failed to dispose of all matters on presentment in that he did not impose a penalty for the offence of Possessing an unregistered handgun.
The appellant does not allege that the sentencing judge fell into specific error, but argues that, in all the circumstances of the case, the individual sentences and the total effective sentence are so manifestly inadequate as to constitute error in principle, and so disproportionate to the gravity of the crimes as to shock the public conscience. The appellant contends that the sentencing judge gave too much weight to the mitigating factors, particularly the respondent’s youth and his interaction with Mr Riordan (given that the respondent subsequently committed another serious group of offences apparently motivated by revenge). Conversely, the appellant submits that too little weight was given to general and specific deterrence, the respondent’s past criminal history, the effect on the victims and the maximum penalty for each offence.
The sentencing statistics indicate an average custodial sentence of between 13 and 18 months and a median custodial sentence of between 12 and 18 months for intentionally causing injury and an average custodial sentence of between two years and two years four months for aggravated burglary, with one, two and three years being the sentences most commonly imposed. (There is, however, as counsel for the respondent submitted, considerable diversity in the sentences for affray, making it difficult to establish a range.) The appellant argues that, given the gravity of the offences, condign punishment required the imposition of an average sentence and significant cumulation.
Respondent’s contentions
The respondent argued that the present sentences, although merciful, were not outside the available range, the sentencing judge had regard to all relevant factors and was entitled, in the proper exercise of his discretion, to treat the youth and prospects of rehabilitation as paramount.
The respondent contended that youth remains a principal sentencing factor even for crimes of a bad kind, because immaturity (which entails less capacity for self-control) is less amenable to general and specific deterrence and young offenders are more vulnerable to polluting influences in gaol. Further, youth, of its nature, bespeaks hope of reclamation.
Counsel for the respondent also emphasised the severe impact of re-sentencing the respondent to imprisonment following his release into the community, particularly in circumstances where the respondent had complied with the community based order, had apparently made good progress and had reordered his life on the basis of his release from custody. Counsel also argued that the present case justified leniency or mercy, because, as the trial judge recognised, the respondent was at a crucial turning point in terms of rehabilitation.
Relevant legal principles
In R v Clarke[4] Charles JA summarised the principles relevant to Crown appeals as follows:
[4][1996] 2 VR 520.
The relevant rules may be stated in the following propositions:
1. An appeal by the Crown should be brought only in “the rare and exceptional case” (Everett at 299) to establish some point of principle. The reason is that such appeals “represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy” (Malvaso at 234).
2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).
Allpass is also authority for the following propositions:
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
These principles are unquestionably part of the law of this State; see R v Boxtel [1994] 2 VR 98 per Crockett and Hampel JJ at 104; and R v Vallis [1996] 1 VR 269 in which the authorities were examined by this court. It is important, however, in the application of these principles, to bear in mind what King CJ said in R v Osenkowski (1982) 30 SASR 212 Osenkowski at 212-13:
[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.[5]
[5]Ibid 522-523.
In DPP v Bright,[6] Redlich JA, with whom Chernov and Vincent JJA agreed, re-affirmed that in a Crown appeal, manifest error alone will not warrant appellate intervention.
[6][2006] VSCA 147.
In DPP v Leach,[7] Eames JA reiterated that:
[D]irectors’ appeals should not be permitted to unduly circumscribe the sentencing discretion of trial judges and…there always remained a place for the exercise at mercy and leniency “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”.[8]
[7][2003] VSCA 96 (Batt, Vincent and Eames JJA).
[8]Ibid [44].
In R v Mills (‘Mills’),[9] the Court of Appeal emphasised the great importance of youth as a mitigating factor. In Mills, a binge drinker aged 20 years and six months, with no previous convictions, was sentenced to 18 months’ gaol, with a non parole period of nine months for intentionally causing injury to a patron at a nightclub by striking him with a beer glass or mug. Batt JA, (with whom Philips CJ and Charles JA agreed), accepted that general deterrence was over-emphasised at the expense of the applicant’s status as a young offender. The applicant was re-sentenced to 12 months, with eight months suspended for three years. Batt JA stated that, notwithstanding allowance for the applicant’s youth, ‘some actual confinement [was] necessary’.[10]
[9][1998] 4 VR 235.
[10]Ibid 243.
In Mills, in contrast to the present case, the applicant had never previously offended and there was but one count of recklessly causing serious injury.
In R v Hatfield,[11] Chernov JA, with whom Vincent JA and Gillard AJA agreed, stated that:
It may be accepted that, ordinarily, an offender’s youth is a very powerful mitigating circumstance that calls for rehabilitation to be in the forefront of the factors that govern the sentencing disposition. But it should be said that the offender’s youth and the prospect of rehabilitation may be overridden by other sentencing considerations that point to the need to impose a custodial sentence. The weight to be given to youth as a mitigating factor must depend on the circumstances of the case.[12]
[11][2004] VSCA 195.
[12]Ibid [11].
Chernov JA observed that the relevant propositions expressed in Mills were merely general and Batt JA had implicitly recognised that youth was a primary, but not sole, consideration. Chernov JA endorsed the view expressed in R v Teichelman[13] that, in the face of other sentencing principles or purpose, youth, though a powerful mitigating factor, may be subjugated as, for example, where general deterrence must be emphasised, there is correspondingly less scope for leniency on account of youth.
[13][2000] VSCA 224.
His Honour observed that general deterrence was particularly significant to sentencing for armed robbery, where the community is entitled to look to courts for protection and to expect condign punishment to be imposed.[14]
[14][2004] VSCA 195, [14].
In DPP v Tokava,[15] a Crown appeal was allowed in relation to a non-custodial sentence imposed on a youthful offender for, inter alia, causing serious injury, intentionally. Buchanan JA stated that the ‘lenient, even merciful’ sentence, was, in the circumstances, manifestly inadequate.[16] His Honour stated:
The sentencing judge regarded the respondent as one who was at a cross road, and chose a course which in his view held the best prospect of setting the respondent’s feet upon the correct path. In so doing, I consider that the sentencing judge elevated the rehabilitation of the offender above all other considerations and in so doing devalued the crimes and their effects.
…
Denunciation, general and specific deterrence are imperative [for]… unprovoked and vicious attacks upon members of the public…[17]
[15][2006] VSCA 156.
[16]Ibid [13].
[17]Ibid [13] and [15].
Manifest inadequacy - first presentment
In the present case, I consider that the sentences imposed in respect of the counts the subject of the first presentment are so manifestly inadequate and disproportionate to the gravity of the offences as to shock the public conscience and to undermine confidence in crucial deterrence of crime.
The respondent’s aggressive conduct initiated a violent fight at a café where about 90 members of the public were present. His original opponent, another man and a security guard employed at the café who had intervened, were injured and required medical treatment. Many members of the public were exposed to the consequences of the violence and the attendant risk of serious injury.
After the initial victims of violence had left for hospital and the café was closed, the respondent returned with additional supporters armed with a knife and a baseball bat, clearly intent on provoking further violence and exacting revenge. The follow up incident was not a spontaneous outburst, but was planned. Appalling physical violence accompanied the break-in to the secured café. People were injured and the premises were damaged. A person employed to clean up was slashed with a knife and was hit on the head, while another employee sustained a cut under his eye. A bystander was also subjected to a violent assault while seated in his parked car outside the premises.
In my opinion, the high threshold for a Crown appeal is met in relation the offences the subject of the first presentment. The inadequacy of the individual and total effective sentences constitutes an error of principle and the sentences passed on the respondent must be corrected in order to maintain adequate standards of punishment which are sufficiently proportionate to the crimes, and consonant with the public’s reasonable expectations.
Manifest inadequacy – second presentment
Contrastingly, it seems to me that the sentences imposed on the offences the subject of the second presentment fall into a different category. Of course those offences amounted to a serious second episode of offending. A number of persons were injured while endeavouring to perform their duty as employees at the St Kilda nightclub, and other members of the public were put at risk. The respondent also demonstrated contempt for the law when he threatened Mr Mortis in a cowardly and cunning attempt to avert retribution. And the offences were aggravated by the fact that they were committed while the respondent was on bail following significant supervision.
But as the respondent’s counsel contends, the respondent’s youth and prospects of rehabilitation were, nevertheless, very important mitigating factors properly to be accorded significant weight. Consequently, although I consider that the judge’s sentencing disposition with respect to the second presentment was remarkably lenient, I am not persuaded that a two year community based order of the kind which his Honour imposed was beyond the bounds of the sound exercise of sentencing discretion in the circumstances of this case.
Resentencing
If other members of the court agree that the sentencing discretion is re-opened in respect of the first presentment, it falls to this court to re-sentence the respondent on the counts the subject of that presentment.
At the hearing on 13 November 2007, the Court requested a pre-sentence report pursuant to s 96(2) of the Sentencing Act 1991 in relation to the respondent’s suitability for detention in a Youth Justice Centre and gave leave to file and serve any further affidavits relevant to the respondent’s current employment and circumstances on or before 27 November 2007. Contrary to my expectations at the time of requesting the pre-sentence report, the material which has been filed implies that a Youth Justice Centre Order would probably not be appropriate.
The Youth Justice Centre Order Suitability Assessment of the respondent dated 27 November 2007 was prepared by Mr Stephen Riordan, Senior Court Advice Officer. It implies that, although the respondent meets the statutory criteria for a Youth Justice Centre Order, his time in adult gaol has resulted in him growing out of adolescent attitudes and behaviour and beyond the point where he would be likely to derive much assistance from the Youth Justice Centre environment. Mr Riordan expresses the problem thus:
Essentially Peter meets some of the criteria stipulated in the Act and does not meet others. The workers at the Youth Justice Central Courts Unit have know Peter for approximately 18 months and during the time Peter has matured and developed considerably, especially since his release from adult custody. He appears to have become a more mature and responsible young man. This is evident by his commitment to his two jobs and simultaneously juggling the requirements and rigors of his community based order. The writer has also noticed that Peter has displayed a more caring attitude for the wellbeing of his aging parents. This was not so evident in earlier dealings with him.
In relation to Peter’s rehabilitation it would appear that his prospects are quite reasonable. Peter’s offending behaviour is essentially alcohol-fuelled violence, where he considers that he has been wronged in some manner. In order to address this behaviour Peter has gone through an extended process of attending various programs:
· Youth Justice (26 sessions in total)
· Anger management sessions with the Preston Creative Living Centre referred by Youth Justice and Community Correction (7 sessions)
· Cognitive Skills and Drug and Alcohol Program with Community Corrections (6 Sessions)
· Numerous supervision sessions with Community Corrections.
Peter stated to the writer that his drinking habits have altered significantly since his release from custody. He stated that he is a moderate drinker, predominantly because he can see the link between his anger and alcohol. He does not want to get into further trouble and his family simply cannot afford for him to go to court again.
The writer has had discussions with the management at Malmsbury Youth Justice Centre and both parties have concerns that whilst Peter may be “on paper” suitable to a Youth Justice Centre Order, the actual environment may not be conducive to Peter’s overall wellbeing and therefore the system may not suit him. Peter has spent a significant amount of time on remand in an adult prison, in mainstream units…
…The writer’s main concern is that Peter presents as being far more mature than the average young man within the adult Youth Justice system. The vast majority of young men are of a similar age to Peter (18 to 20) but they are far more immature and adolescent in attitude and behaviour. I am of the opinion that Peter has out grown that stage of his life and may find the environment frustrating having to tolerate the immature behaviour of others.
That view of the matter accords with evidence given by Mr Riordan in answer to questions put to him by the sentencing judge:
[HIS HONOUR]: In terms of punishment he’s had a fairly solid dose hasn’t he? --- To use the vernacular, your Honour, he’s had a fair whack so far.
[HIS HONOUR]: I haven’t read the depositions but just on what I’ve heard this morning he’s had 200 days - - - ? ---In an adult gaol.
[HIS HONOUR]: In an adult gaol. It seems to me to be a fairly solid dose of punishment largely because of the way in which he got involved in a further episode of violence? --- Yes, indeed.
[HIS HONOUR]: Can I come back to my question to you really. In terms of his future, just think of him for a moment, is Youth Training Centre or a youth residential centre likely to do him more good than Corrections in the community? --- Your Honour, I suppose I can only look at the behaviour that Peter exhibited whilst he was on bail. He didn’t miss any of his appointments. He turned up, he engaged. My belief is he would engage in the community and he would engage in a Youth Training Centre. The real test is in the community isn’t it.
[HIS HONOUR]: I mean what he ought to be doing is working and - - -“ --- Exactly.
- - - developing his relationships and getting the sort of courses in terms of anger management and alcohol? --- and in some - - -
[HIS HONOUR]: They’re available, they’re just as available in the community as in the centre? - - - Indeed, and your Honour, getting on with his life.
[HIS HONOUR]: Which he’s lost not an insignificant bit already it seems? --- Exactly.
The affidavits filed by leave, are sworn by Theofani Pitsounis, the owner of a restaurant, and George Moutafis, the managing director of a plastics company. They depose to the respondent’s part-time work in their respective businesses, for two to four hours a day from Mondays to Thursdays in the restaurant and one day a week in the plastics factory. Mr Pitsounis deposes to the respondent’s motivation to seek an apprenticeship in the building industry and stated his willingness to continue to employ him. Mr Moutafis deposes that the respondent was a very hard worker who applied himself and was not disruptive. Their evidence bespeaks a degree of maturity and a strong commitment to hard work and rehabilitation on the part of the respondent, which accords with Mr Riordan’s prognosis.
In view of that material, I have come to the view that it would not be appropriate to sentence the respondent to a Youth Justice Centre order. Like the sentencing judge below, I consider that the better course would to keep the respondent within the community working, and completing the community based order which was imposed in respect of the offences the subject of the second presentment, and continuing the training and rehabilitative programmes for which it provides.
Making allowance for the element of double jeopardy, which indicates a sentence somewhat less than might otherwise have been imposed, and the impact of a return to custody following release, in my opinion, the respondent should be re-sentenced in respect of the offences the subject of the first presentment as follows:
On Count 4 (aggravated burglary) Two years’ imprisonment On Count 1 (intentionally cause injury)
18 months’ imprisonment
On Count 2 (recklessly cause injury)
Three months’ imprisonment
On Count 3 (recklessly cause injury)
Three months’ imprisonment
On Count 5 (affray)
One year’s imprisonment
On Count 6 (criminal damage)
One year’s imprisonment
On Count 7 (possession of an unregistered handgun)
Three months’ imprisonment
I would cumulate six months of the sentence imposed on Count 1, three months of the sentence imposed on Count 5 and three months of the sentence imposed on Count 6 on each other and on the sentence imposed on Count 4, making for a total effective sentence of three years’ imprisonment.
I would further order that all of the sentence, except for the 201 days which have already been served, be suspended for a period of two years.
For completeness, I add that, in coming to the view that it is desirable in the circumstances of this case to make an order suspending that part of the sentence, I have had regard to the need (considering the nature of the offences the subject of the first presentment; their impact on the victims of the offences; the injury, loss and damage resulting directly from the offences) to ensure that the sentence adequately manifests the denunciation by the court of the type of conduct in which the respondent has engaged, and adequately deters the respondent and other persons from committing offences of the same or a similar character; reflects the gravity of the offences; and the degree of risk of the respondent committing another offence punishable by imprisonment during the operational period of the sentence, if it is suspended.[18]
[18] There have been no previous suspended sentences of imprisonment imposed on the respondent.
After having regard to the factors to which I have referred, I am satisfied that it is appropriate, because of the exceptional circumstances to which I have referred, and that it is in the interests of justice to suspend that part of the sentence.
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