DPP v Sheckleton

[2006] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 77 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v.

DANIEL JAMES SHECKLETON

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2006
DATE OF ORDER:	8 August 2006
DATE OF REASONS:	28 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 169

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Criminal law – Sentencing – Crown appeal – Three counts of burglary and three counts of theft committed whilst on bail – Respondent with numerous prior convictions for relevant offences – Sentence of three years’ imprisonment, to be served concurrently with existing sentence, and new single non-parole period of 12 months – Whether manifestly inadequate – Existing sentence imposed for offences of a similar character committed in the same time frame – Total effective punishment four years’ imprisonment with non-parole period of two years – Sentencing judge’s sympathies legitimately engaged – In those circumstances, opportunity for reformation given by sentencing judge not to be taken away by Court of Appeal – Sentencing Act 1991, s.16(3C).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.F. Tehan, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Victoria Legal Aid

CALLAWAY, J.A.:

1. The respondent, who is now aged 26, pleaded guilty in the County Court to three counts of burglary (counts 1, 3 and 5) and three counts of theft (counts 2, 4 and 6), contrary to the provisions of ss.76 and 74 of the Crimes Act 1958. The maximum custodial penalty for both those offences is ten years’ imprisonment. He admitted eight previous findings of guilt and 135 previous convictions from 13 appearances in the Children’s Court and the Magistrates’ Court between February 1996 and September 2003. They included 44 instances of burglary and 57 instances of theft. There were also subsequent convictions in the Magistrates’ Court. They included 14 charges of burglary and at least 21 charges of offences of dishonesty, as a result of which the respondent had been sentenced to two years’ imprisonment with a non-parole period of 18 months beginning on 30^th August 2005.[1]  There were 176 days’ pre-sentence detention applicable to that sentence.

   [1]There were two appearances in the Magistrates’ Court.  On 30^th August 2005 the respondent was sentenced to two years’ imprisonment with a non-parole period of 18 months.  On 6^th September 2005 he was sentenced to a further eight months’ imprisonment, to be served concurrently with the sentence he was undergoing. 

1. After hearing a plea for leniency on his behalf, the learned judge sentenced the respondent on 20^th February 2006 to 12 months’ imprisonment on each of counts 1, 2, 5 and 6, three years’ imprisonment on count 3 and two years’ imprisonment on count 4.  Directions for concurrency resulted in a total effective sentence of three years’ imprisonment to be served concurrently with the sentence the respondent was undergoing.  A new single non-parole period of 12 months was fixed.[2] Compensation orders were made, pursuant to s.86 of the Sentencing Act 1991, in favour of the victims.

   [2]By reason of emergency management days, he will be eligible for release on 15^th February 2007.

1. There were three episodes of offending:  the first at Ascot Vale some time between 26^th November and 5^th December 2004;  the second at Footscray on 20^th December 2004;  and the third at Sunshine the next day.  On each occasion the respondent entered residential premises with intent to steal and stole property belonging to an occupier.

1. On the first occasion the respondent removed a flywire screen covering the bathroom window, broke the window and gained entry to the house.  He ransacked the house but stole only two items, with a total value of $2,600.  On the second occasion he again broke a window at the rear of the house and forced open a locked filing cabinet.  He stole a large number of items, including a laptop computer, six watches and numerous items of jewellery.  They were worth $45,446.75.  The next day the respondent again went to the rear of a house and broke in through a window.  He entered all the bedrooms and stole items with a total value of $2,000.  None of the property stolen from any of the premises has been recovered.

1. The Director of Public Prosecutions appealed pursuant to s.567A of the Crimes Act on the grounds that the individual sentences, the total effective sentence and the new single non-parole period were each manifestly inadequate and that the order that the sentence be served concurrently with the sentence the respondent was then undergoing had resulted in a sentence that is manifestly inadequate.  The particulars may be summarized as failing adequately to reflect the gravity of the offences, generally and in this particular case;  failing to take into account, or sufficiently to take into account, general and specific deterrence;  giving insufficient weight to the respondent’s relevant prior criminal history, the fact that he was on bail when the offences were committed, the continuing nature of the offending, the applicable maximum penalties and the effect of the offences on the victims;  and giving too much weight to factors going to mitigation and the respondent’s prospects of rehabilitation.

1. Mr Tehan supported the grounds of appeal with four principal contentions.  First, he submitted that the individual sentences were at the bottom of the range, which was inappropriate in the case of an offender with the respondent’s criminal history who had committed the offences on bail.  Secondly, the submission proceeded, there should have been a measure of cumulation, because these were discrete incidents.  They were committed on different days, at different premises and

with different victims. Thirdly, the effect of the new single non-parole period was to add only five months to the minimum term imposed in the Magistrates’ Court. Finally, there was no reason wholly to displace the prima facie rule of cumulation for offences committed on bail that is found in s.16(3C) of the Sentencing Act.

1. We did not call upon Mr Holdenson.  Whilst there was much force in Mr Tehan’s submissions, there were two reasons why they should not be accepted in the present case.  The first reason was that the offences dealt with in the Magistrates’ Court and the offences with which we are concerned were of a similar character and committed in the same time frame.  The total effective punishment meted out to the respondent, when pre-sentence detention is taken into account, is approximately four years’ imprisonment with a non-parole period of two years.[3]  The second reason is that this was a case where the judge’s sympathies were legitimately engaged.  The offences were committed at a particularly difficult point in the respondent’s life and he had made genuine efforts towards reformation.  The judge gave him a chance and I did not think that this Court should take it away from him on a Crown appeal.

   [3]The additional 12 months, in the effective head sentence and the effective non-parole period, is made up of approximately six months’ pre-sentence detention and approximately six months between the date of sentence in the Magistrates’ Court and the date of sentence in the County Court.

1. It was for these reasons that I joined in the order made on 8^th August 2006 that the appeal be dismissed.

REDLICH, J.A.:

1. For the reasons given by the learned presiding judge, I joined in the order pronounced on 8 August that the appeal be dismissed.

COLDREY, A.J.A.:

1. I also agreed that this appeal should be dismissed for the reasons advanced by the learned presiding judge.