DPP v Snell
[2005] VSCA 131
•23 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 60 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| CAINE MICHAEL SNELL |
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JUDGES: | CHARLES and EAMES, JJ.A. and BYRNE, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 May 2005 | |
DATE OF JUDGMENT: | 23 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 131 | |
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CRIMINAL LAW – Sentencing – Director’s appeal – Aggravated burglary – Causing serious injury intentionally – Young offender – Drug addiction – Long criminal history – Further offences whilst on bail – Sentences of 5 months for aggravated burglary, 4 months for intentionally causing serious injury manifestly inadequate – Genuine prospects of rehabilitation – Appeal allowed – Sentence of three years’ imprisonment, wholly suspended, substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mrs M. Williams | Mr S. Carisbrooke, |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Clarebrough Pica |
CHARLES, J.A.:
On 6 September 2004 the respondent pleaded not guilty in the County Court at Melbourne to a presentment alleging some 11 counts against him, four of which included allegations involving a co-conspirator Kym Goralski. On 14 September the respondent was found guilty on the following four counts:
1.Count 1: aggravated burglary on 13 March 2003 of Flat 1, 76 Rooks Road, Nunawading;
2.Count 2: intentionally causing serious injury on 13 March 2003 to Andrew Falls;
3.Count 4: intentionally causing injury on 13 March 2003 to David Falls;
4.Count 6: stealing a quantity of money and Victoria Bitter cans on 13 March 2003 from Andrew Falls.
The maximum sentence for aggravated burglary was then 25 years, for intentionally causing serious injury, 20 years, and for both intentionally causing injury and theft, 10 years’ imprisonment respectively. On the other charges alleged against the respondent, he was found not guilty. Goralski was found guilty of theft, and attempting to obtain property by deception, in both cases on 11 May 2003.
At a plea, the hearing of which began on 17 September 2004, the respondent admitted 29 previous findings of guilt without conviction from two appearances in the Children’s Court, 56 prior convictions from seven appearances in the Children’s Court, and 101 prior convictions from 14 appearances in the Magistrate’s Court. The respondent’s prior convictions included 54 burglaries, two aggravated burglaries, one assault with intent to rob and one unlawful assault, and numerous convictions for dishonesty and drug offences.
During the plea, counsel for the respondent relied on a report by Sarah Covill dated 3 September 2004, a report from Bernard Healey of 2 August 2004 and a further report from K. Hoffman and Anne Berrett of 24 May 2004. Victim impact statements of Andrew Falls and David Falls were tendered. The plea was adjourned to 5 November 2004 to enable a pre-sentence report to be obtained. A pre-sentence report was duly obtained from the Community Correctional Services, dated 22 October 2004. Further sentencing hearings occurred on 12 November 2004, and 7 February 2005. On 7 February evidence was called from Major Dennis McMillan of the Salvation Army on behalf of the respondent.
On 7 February 2005 the judge sentenced the respondent on count 1 to five months’, on count 2 to four months’ and on count 6 to one month’s imprisonment respectively. On count 4 the judge imposed a 12 month community based order. Two months of the sentence imposed on count 2 was made cumulative on the sentence imposed on count 1. The total effective sentence became seven months’ imprisonment. The judge ordered that three months of this term be suspended for a period of 12 months.
The Director of Public Prosecutions now appeals on the ground that the sentence imposed is manifestly inadequate. The ground is particularised as – failing adequately to reflect the gravity of the offences; failing to take into account sufficiently or at all general and specific deterrence; giving too much weight to matters going to mitigation; and giving insufficient weight to the respondent’s prior criminal history, the applicable maximum penalties, and the effect of the offences upon the victims.
The Crown case in relation to counts 1, 2, 4 and 6, was as follows. At approximately 6.30 pm on 13 March 2003 Andrew Falls returned to his flat at 76 Rooks Road Nunawading with his brother David. David worked during the day as a courier, and Andrew, who suffers from cerebral palsy, travelled with him as a passenger. Andrew and David each drank some beer and were preparing to cook some meat on the barbecue at their premises at 9.30 pm. At this time the respondent, in company with his father Gavin Tracey, entered through the unlocked fly wire door and immediately assaulted both David and Andrew Falls. The respondent was the main perpetrator of the violence. As they entered, Andrew Falls asked the respondent how he was going, referring to him as “Caine”. He was told by the respondent and Tracey that the respondent was in fact Leigh (the respondent’s brother). The respondent accused Andrew Falls of “ripping off” Tracey and of making a previous accusation to the police that he and his father had committed a burglary on Andrew’s premises. The respondent then pushed Andrew Falls with both hands to his chest, forcing him over a distance of two or three metres into a wall. Andrew Falls’ head penetrated the plaster and made contact with a stud in the wall. David Falls was sitting on the lounge suite at this time and was prevented from getting up by Tracey. The respondent then approached David Falls, who managed to get the respondent in a bear hug to prevent himself from being assaulted and walked with him towards the front door. Tracey then grabbed David Falls by the throat causing him to release his hold on the respondent. The respondent then punched David Falls to the face several times. David Falls fell to the ground and was subsequently kicked several times to the back of his head and neck by the respondent. Whilst this was happening Tracey was sitting near Andrew Falls and said to him “we didn’t rob you”.
The respondent and Tracey told David Falls to stay on the ground, which he did. The respondent then placed a curtain around Andrew Falls’ head and kicked and punched him several times to the head whilst he was on the ground. David Falls said to the respondent “he’s had enough Caine, get off” to which Tracey responded “it’s not Caine, it’s Leigh”. The assault stopped when both Andrew and David Falls ceased resisting and remained on the ground.
Tracey then repeated his earlier comments that they had not previously burgled Andrew Falls’ flat. The respondent said “where’s the dope?”. The respondent and Tracey subsequently rifled through the cupboards in the flat searching for drugs. When no drugs could be found, they stole 12 stubbies of beer from the refrigerator and took money from Andrew Falls’ wallet that was located on the bench. They then left the premises.
David Falls then went over to Andrew and removed the curtain that was draped around him, and drove him to the hospital. Both victims suffered a number of injuries. Andrew Falls suffered chipped teeth, severe swelling to his cheeks, bruising and red marks to his torso and eyes and an 8 cm laceration on his posterior scalp that required sutures. David Falls suffered a fractured rib, bruising to the face, left eye, right forehand and right arm and a haematoma to the right eye. Victim impact statements prepared by both of them graphically demonstrate the violence of the assault and the trauma to which both were subjected.
The respondent was subsequently interviewed by police on 5 May 2003 and gave mostly no comment answers.
The plea hearing commenced on 17 September 2004. Counsel for the respondent relied particularly on his youth, he having been aged 20 when the offences were committed and then being only 21, and on the claim that the respondent, notwithstanding that he had already a very troubling record of appearances in the courts, had commenced to have some insight into his problems and the desire to turn his life around. The judge was informed that on 10 September 2003 the respondent had been sentenced to nine months’ imprisonment for a series of offences which occurred in August 2002 including driving whilst disqualified, driving in a dangerous manner, reckless conduct endangering serious injury, burglary and theft. For these offences the respondent had been sentenced to nine months’ imprisonment by a magistrates’ court. Notwithstanding all these matters, reliance was placed by counsel on a report from Sarah Covill of the Brosnan Centre dated 3 September 2004 in which Ms Covill said that –
“Unlike his first period of contact with this service in which he was difficult to engage, chaotic and unresponsive, Mr Snell appears to have matured significantly and has put a great deal amount (sic) of thought into the path he wishes to take at this point. He has approached Brosnan Centre of his own volition and has both engaged in the support offered and been active in the referral processes to other services. He is determined to play a positive role as a parent and is willing to take the necessary steps to stabilise himself in the community.”
Ms Covill said that the respondent had “certainly shown far greater commitment and motivation than the writer’s previous contacts with him and by linking voluntarily with support agencies has shown a level of foresight and planning into his future.”
Counsel submitted that the respondent’s record showed that he had a serious drug problem, and that all his offences were drug-related offences. He had very few offences of violence. It was accepted that a gaol term was the only appropriate disposition for offending such as the present offences, but counsel asked the judge to consider either a wholly suspended sentence or a very low non-parole period.
Counsel for the Crown submitted that a home invasion is a very serious offence which, in this case, involved wanton and unprovoked violence and that general deterrence, specific deterrence and denunciation were all important considerations. He noted that the respondent was on parole at the time of committing these offences in March 2003, and submitted that, notwithstanding the respondent’s youth and any prospect he might have of rehabilitation, that an intensive corrections order would simply be manifestly inadequate, in that a head sentence of 12 months’ imprisonment would involve appealable error.
The judge determined to adjourn the hearing of the plea to enable a pre-sentence report to be obtained, and to consider, inter alia, whether a community based order might be imposed in relation to one or two of the offences for which the respondent was to be sentenced. Debate then followed as to whether it was appropriate to grant the respondent bail. The judge decided to grant bail, but, before doing so, warned the respondent that, although he had a strong inclination to give him a chance, he should not misbehave in any way in the coming period and that if the respondent breached in any way the terms of the bail he was being granted, that would indicate to the judge that it would be unrealistic to continue to give him a chance. Accordingly on 17 September the judge adjourned the further hearing of the plea to 5 November 2004.
On 12 November, at the resumed hearing, the judge was informed that on 9 October, three weeks after the plea had been adjourned part heard, the respondent and the mother of his child, who was also addicted to heroin, had committed a series of offences in Horsham, leading to charges of burglary, theft of a motor vehicle, theft of cans of Jim Beam liquor, stating a false name when requested, going equipped to steal, driving under the influence of a drug, and driving whilst disqualified. These matters were listed for further hearing at the Magistrates’ Court in Horsham on 3 November. Meanwhile, a pre-sentence report had also been obtained from Ms Kathy Houlihan, a community corrections officer in Lilydale, who reported that the respondent was assessed as a high risk offender, with a long history of poly drug use and repetitive offending behaviour, with little family support, and the majority of his peers having a criminal record. Ms Houlihan said that the respondent was reluctant to discuss the present offences although he had expressed a desire to “clean up his act” and become a good father to his child. She reported her reservations about finding the respondent suitable for a community based order, given his poor compliance on past orders and recommended that the respondent “is not a person who could on past and present history successfully complete either a community based order or intensive correction order at this point in time.”
Counsel for the respondent nonetheless sought to have the judge further adjourn the plea, to see whether it was possible for the respondent to be permitted to participate in a residential rehabilitation program, arguing that given his youth and to facilitate rehabilitation it was still preferable that he not be returned to prison. For this purpose the judge agreed to adjourn the plea to 7 February 2005, but revoked the respondent’s bail.
On 7 February the judge was told that counsel had been able to find a suitable residential rehabilitation program, known as the Overdale Program. Counsel then called Major Denis McMillan of the Salvation Army to explain the program to the judge. The Crown maintained its submission that an ICO was inappropriate, because of the relevant 12-month limit for such an order.
The judge, in sentencing reasons, recounted the sentencing history of the respondent up to the present and then continued –
“18. The principal purpose of adjourning the hearing of the plea in this matter from 12 November to today was to enable those seeking to assist you, namely your solicitors and counsel, and Ms [Covill] from the Brosnan Centre, to attempt to find for you a place in a residential rehabilitation program for persons addicted to drugs. I should say to you that I’ve been impressed by their commitment to helping you and by the persistence that they’ve shown in finding a suitable rehabilitation program for you. I had the benefit this morning of hearing from Major McMillan of the Salvation Army concerning the Overdale Rural Rehabilitation Centre on the outskirts of Kilmore. He has advised me that a place has been obtained for you and is available for you at that centre. In my judgment you should be given the opportunity to participate in this program.
19. I do not need to tell you, Mr Snell, as you are probably more aware of it than most, that an opportunity such as this is unlikely to come your way again. You need to appreciate and I am sure you do appreciate but even despite your young age, now 22, that a person with a record that you have is unlikely to get too many more opportunities. That may be regrettable but ultimately the responsibility for what you do and the way you behave falls on your shoulders and your shoulders alone. So if you are to be given this opportunity it really is a matter for you and your responsibility as to what you make of it.”
The written submissions of the Director of Public Prosecutions argue that the sentence imposed by the judge is manifestly inadequate and demonstrates sentencing error. Reliance is placed on the seriousness of the offences committed. It is submitted that the attack on the victims was perpetrated by the respondent in the company of his father, the attack occurred in the sanctity of Andrew Falls’ home, and was in revenge for Mr Falls having gone to the police reporting an earlier burglary. Andrew Falls was a vulnerable and defenceless victim and the attack on him was both savage and cowardly. After the initial attack he was lying injured and unable to get up, and was further attacked whilst he was disabled, being kicked and punched a number of times to the head. The attack on David Falls was similarly savage and cowardly, and involved not only punching but repeatedly kicking him whilst he was on the ground. It was submitted that the offence of aggravated burglary was accompanied by acts of violence against the occupants of the invaded home and that the judge gave too much weight to the sentencing principles applicable to youthful offenders. It was submitted that the respondent has numerous prior convictions for burglary and aggravated burglary. On two occasions he had breached parole orders, his first parole in 2002 having been cancelled due to poor compliance, and his second parole which commenced on 4 March 2003 was breached nine days later by the commission of these offences on 13 March 2003 and also by unsatisfactory compliance. The respondent had previously breached court-imposed orders, both a youth supervision order and a community based order. The respondent committed further offences on 9 October 2004 after the plea in mitigation in this very matter had been adjourned part heard to 12 November, he having been bailed to appear on that date. Accordingly it was submitted that his Honour gave too much weight to the sentencing principles applicable to youthful offenders. It was submitted that there was no “hard” evidence of rehabilitation, and that the respondent’s history of offending and committing further offences prior to sentence indicated little weight should have been given to rehabilitation. The respondent had been assessed as a high risk offender and unsuitable for a community based order and had demonstrated a complete lack of remorse. It was also submitted that insufficient weight had been given to the respondent’s relevant prior criminal history, to the maximum penalties applicable to these offences, which in the case of both aggravated burglary and intentionally causing serious injury showed them to be regarded as very serious offences, and further that insufficient weight had been given to the effect of these offences upon the victims.
In his oral submissions to the Court, the Director submitted that it was clear that the judge wanted to give the respondent another chance, notwithstanding that he had already received a number of chances, and that his Honour thought rehabilitation to be the major consideration. Notwithstanding that this was his Honour’s intention, the Director submitted that the sentences were derisory for offences of such seriousness and on no view could be justified in law. However, the Director put it to the Court that it was clear that a number of good people still see some hope in the respondent. Accordingly, with the gravest of reservations, he told us that he could accept a fully suspended sentence as being within range, even though this would still be a remarkably lenient sentence. He argued that as between a sentence of three years wholly suspended, and a sentence of three years with a low non-parole period, it could not be predicted that the respondent would get parole, having regard to his previous criminal history and his failure to abide by orders for parole. Accordingly, if the Court were minded to do so, a fully suspended sentence was preferable to a sentence with a low non-parole period.
Mr Holdenson for the respondent, in his written submissions, argued that, having regard to the respondent’s youth, it was open to the judge to give much weight to his rehabilitation. He argued that the respondent had now recently expressed a change in attitude to his life, that the evidence was to the effect that he had matured and now showed a commitment and motivation to rehabilitate himself with the assistance which he knew he required. Accordingly he argued that it was open to the judge to take the view that to impose a term of actual imprisonment which was to be immediately served might operate in a manner adverse to both the respondent personally and the community. It was therefore, so the argument ran, open to the judge to exercise his discretion in such a manner as to enable the respondent to take up the Overdale Rural Rehabilitation Program, with a view to rehabilitating himself with the assistance given. He relied particularly on Major McMillan’s evidence that the respondent was “a likely candidate to do something about his [drug] habit with some prospects of success”.
It was submitted that the judge had accepted the evidence concerning the respondent’s rehabilitation, had exercised his discretion so as to maximise the respondent’s prospects of rehabilitation and had imposed sentence so as to give much weight to the sentencing objective of protecting the community. Totality was also relied on, in that the four offences for which the respondent was to be sentenced were each committed during a limited and multi-faceted course of criminal conduct on the night of 13 March 2003. Accordingly the overall sentence could not be described as manifestly inadequate. He submitted that in imposing a partially suspended sentence of imprisonment, such a disposition was not a mere exercise in leniency, but satisfied the objectives both of general and specific deterrence.
Next it was submitted that the respondent had participated in the Overdale Rural Rehabilitation Program from 8 February to 16 April 2005, and had otherwise complied with the community based order imposed by the learned sentencing judge. Reliance was placed on affidavit material sworn by Stephen Robert Pica of the firm of Clarebrough Pica, on behalf of the respondent, which described the respondent’s performance in the Overdale program. The report of Ms Roslyn Stewart, a senior case worker with the Overdale program, exhibited to this affidavit, records that the respondent participated in group and individual counselling covering a variety of matters. Furthermore, a report by Ms Stewart of 17 May 2005 as to the respondent’s performance in the program shows that his participation has been positive and his behaviour whilst in the program has been satisfactory. Ms Stewart concludes her report with the following comment as to the respondent that –
“He also began to develop confidence to express his thoughts and emotions, and a level of self-awareness that allows him to make informed decisions regarding his future intentions and plans. It is Mr Snell’s desire to regain control of his life, reintegrate back into the community, and make a positive contribution to society. Throughout the program Mr Snell demonstrated a willingness to learn strategies and work towards achieving his goals.”
In his oral submissions to the Court Mr Holdenson put before us a further report from Sarah Covill of the Brosnan Centre dated 19 May 2005. In that report Ms Covill said –
“As with many young people who are struggling with heroin addiction, Mr Snell did experience periods of relapse between July and October last year, but maintained his determination to continue attempting to address his addiction. To this end, a referral was placed with the Salvation Army’s quit program and Mr Snell was assessed as suitable for their ‘Overdale’ rehabilitation program in Kilmore and was admitted to their program on 8 February 2005. The writer maintained weekly contact with Mr Snell to both support his rehabilitation efforts and to assist him with future planning in relation to his housing, education and emotional needs. Mr Snell completed his two months at Overdale before and has now returned home to reside with his mother in Healesville. In the writer’s opinion, Mr Snell has benefited greatly from his time in residential rehabilitation, as it has allowed him to focus solely on his past drug use, its precipitating factors and has equipped him with tools and strategies to assist in preventing further relapse in the community.
Future planning/case management
In relation to future planning Mr Snell expressed a desire to return to education and employment. To this end Mr Snell is currently employed two days per week by his uncle Greg Gibbs, performing general labouring, gardening and painting duties at a property in Eltham.
Mr Snell has also attended an interview with Box Hill TAFE to discuss returning to education in the second half of this year. His plan is to complete a general education course with a view to eventually completing his Victorian Certificate of Education (VCE). At this appointment Mr Snell enrolled in the certificate of general education. His commitment at the course is two days a week.
The Brosnan Centre will be assisting Mr Snell with the provision of support in relation to ongoing drug counselling, applications for public housing, support with his education and referring to any other relevant supports.
Summary
Mr Snell is a 22 year old man with a significant history of both offending and dependence. Unlike his first period of contact with this service in which he was difficult to engage, chaotic and unresponsive, Mr Snell appears to have matured significantly and has given a great deal amount [sic] of thought into the path he wishes to take at this point. He has approached the Brosnan Centre of his own volition and remained at ‘Overdale’ beyond the requirements of the previously imposed court order, an indication of his current level of motivation towards addressing his drug issues.
It is the writer’s opinion, Mr Snell is making a concerted effort to both change his lifestyle and make the most of the opportunity afforded to him by the Court in January of this year.”
Mr Holdenson informed the Court that Mr Clarke from the Brosnan Centre was with the respondent in court. He argued that young offenders such as the respondent will only change when they decide to change, that change must come from within. He argued that the respondent has struggled with adversity but that he has now taken charge of his life and that his maturity level is finally helping him to do so. He informed the Court that Mr Clarke also takes the view that the respondent has turned the corner.
Mr Holdenson submitted that the respondent has no other outstanding charges, that he has funding for the general education course at Box Hill TAFE, that he plays football at weekends and that his contact with the Brosnan Centre has been found very beneficial. He submitted that if the Court were now to return the respondent into custody it would put at risk the whole process of his rehabilitation and the Court would be elevating the weight to be given to general and specific deterrence beyond what is necessary and putting at risk both the respondent’s rehabilitation and the protection of the community.
The judge was, I think, faced with a most difficult exercise in sentencing. The respondent had a very bad and troubling record, and had committed a number of offences at least two of which were very serious. On the other hand his Honour had detected the glimmer of a possibility of genuine rehabilitation in the respondent. The judge was thus obliged to place in the balance for his sentencing discretion, the interests of the victims (and the community) both for their future protection and for the proper punishment of the respondent, as well as general and specific deterrence on the one hand, and, on the other, the fact that a sentence which resulted in the immediate and prolonged incarceration of the respondent might well extinguish the last hopes for his rehabilitation. His Honour’s sentence was plainly framed with rehabilitation in mind, but presumably also in the belief that it was unlikely that the respondent could keep to the terms of a suspended sentence for more than a comparatively short period.
Having said so much, I have no doubt whatever that the Director’s submissions as to the manifest inadequacy of the sentence must be upheld on the grounds given. The maximum sentence for aggravated burglary is 25 years, for causing serious injury intentionally, 20 years. Both offences are recognised by Parliament as very serious indeed. Each of these offences by the respondent was indeed savage and cowardly, and I agree with the Director’s submissions describing them as serious examples of both offences. The victim impact statements clearly
show the effects of the respondent’s conduct on the unfortunate victims. He, for his part, pleaded not guilty, showed no remorse and relied on a specious defence at the trial. In all the circumstances, and having regard to his prior record, a sentence of five months for aggravated burglary, of four months for intentionally causing serious injury, and a community based order for intentionally causing injury, cannot on any view be justified, notwithstanding the respondent’s youth.
Taking into account the necessary discounts on a Director’s appeal, and having regard to the fact that the respondent has been at liberty since 7 February 2005, I would allow the Director’s appeal, set aside the sentences imposed and instead sentence the respondent on count 1 to two years’, on count 2 to two years’, and on count 4 to 12 months’ imprisonment respectively. On count 6 I would sentence the respondent to a community based order for two years, including a condition that the respondent must perform 250 hours of unpaid community work over a two-year period. I would direct that nine months of the sentence imposed on count 2 and three months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 1 and upon each other, making a total effective sentence of three years’ imprisonment.
Having regard to the submissions of the Director and the evidence now before the Court of the steps taken by the respondent on the path of rehabilitation and reform, I would direct that the whole of this sentence be suspended for two years.
EAMES, J.A.:
In TheQueen v. Osenkowsk[1]i King, C.J. made the following, often quoted, observation when considering a Crown appeal against sentence:
“The sentence was undoubtedly less than the standard which has become established in this Court for this type of offence. The question is whether it is an appropriate case for interference by this Court.
It is important that prosecution 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.”
[1][1982] 30 SASR 212, at 212-3.
That consideration assumes particular importance when the sentencing judge was, as here, sentencing a youthful offender[2]. However, as wise as was that statement of the learned Chief Justice, it must be remembered that he added the following important rider:
“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
[2]R. v. Mills [1998] 4 V.R. 235, but see R. v. Hatfield [2004] VSCA 195, at [10]-[12].
In Osenkowski, having identified the right of the sentencing judge to extend leniency and mercy in an appropriate case, King, C.J. agreed with the other members of the court that the sentence in that case ought be substantially increased, since there was nothing personal to the offender nor any other mitigating factors of such importance as to outweigh the need for general deterrence, and to thereby mitigate the sentence to be imposed.
The sentencing task is never more difficult than when the sentencing judge discerns a faint hope of rehabilitation for a youthful offender with multiple prior convictions, who stands yet again to be sentenced on serious offences. In this case the judge was sentencing a young man who was a heroin addict at the age of 14, precisely the sort of offender who – unless rehabilitated - was likely to bedevil the community throughout what would no doubt be a shortened, and certainly wasted, lifetime of criminal behaviour interspersed with increasing periods of imprisonment. Over many appearances, a compassionate, but knowing, judge explored the range of sentencing dispositions in this case with a view to achieving an outcome which would enhance the long-term protection of the community whilst at the same time maximising the respondent’s prospects of reformation.
His Honour made it very clear to the respondent that he was deserving of a severe sentence of immediate imprisonment, but in not adopting that course he seized what he believed to be a moment of opportunity for the respondent’s rehabilitation. His Honour was well aware that in so doing he was adopting an unusual course, one which the prosecutor had said would amount to appealable error. He was aware too that there was a considerable risk that his hopes that the respondent would seize the opportunity given to him would be dashed. The respondent had, after all, committed further offences while on pre-sentence bail, which had been granted by the judge only with reluctance, and with the strongest of warnings that should he re-offend in the meantime the respondent was bound to be sentenced to a substantial period of imprisonment.
In adopting the course he did the judge was being neither naïve nor irresponsible. To the contrary, he was alert to all of the contra-indicators for a merciful sentence. He was aware, too, that the victims had suffered and complained that they continued to suffer physical and mental injuries as a result of the vicious conduct of the respondent. It was of particular importance that at the time of the attack the respondent then knew that one of the victims suffered cerebral palsy. His Honour, having seen both victims give evidence, said of that victim that he was a person who “despite his major disability, or perhaps because of it, has a resilience and ability to cope with difficulties that life presents”. That was not a dismissive remark which was intended to brush aside the need for denunciation and deterrence of such offences. It was, in fact, an objective assessment of the consequences of the offence, which his Honour weighed carefully in considering whether it was appropriate to adopt the course he did.
Mr Coghlan did not argue that the judge was not entitled to give prominence to rehabilitation where the offender was a young man. His primary complaint was that, save for the theft offence, the actual sentences of imprisonment imposed on each offence were so low as to be wholly outside the range for offences of this character, and even more so when the respondent’s prior convictions were taken into account. For the reasons given by Charles, J.A., I agree with Mr Coghlan’s submissions in that regard. Although, as the judge rightly said, the injuries suffered did not place the offences at the high end of the range in each instance, these were nonetheless brutal and terrifying offences committed in company and in the home of the victims. The offences were deserving of the sentences proposed by Charles, J.A, and, had this not been a Director’s appeal, even longer periods of imprisonment. To conclude otherwise would, in my view, excite justified complaint of disparity in sentencing among the many serving and former prisoners who have been incarcerated for offences of this character. As difficult as it is to achieve, consistency in sentencing is an important sentencing consideration.
In re-sentencing the respondent this Court, as did the Director, must acknowledge the fact that since being released into the community by the sentencing judge the respondent has indeed seized the opportunity so unexpectedly given to him. The fact that he has done so suggests, of course, that the judge’s assessment of there being a moment of opportunity for reform was right, notwithstanding all of the signs which suggested otherwise. I acknowledge that fact, but, with respect, it does not convert manifestly inadequate sentences, when imposed, into appropriate sentences.
Had I been sentencing at first instance I doubt that I would have had his Honour’s degree of optimism for the respondent’s future. There were two factors, neither of which was expressly mentioned by the judge in his sentencing remarks, which would have weighed most strongly against my concluding that the respondent’s prospects of rehabilitation were so strong as to justify the leniency that was granted. First, there was the fact that the respondent had not pleaded guilty, indeed had contested the charges (although not giving evidence) by running a
spurious defence. Secondly, he had shown absolutely no remorse for the offences. Not a word of sympathy has been uttered by him for the victims. The fact that he believed them to have reported him to the police might explain his reticence, but does not excuse it. If anything, the motive for the attack only aggravates the offences.
Having made those observations, we must sentence the respondent on the basis of his present situation. He presents, assuredly, as a different person to the man who contested the trial, his potential then being apparent to the trial judge but to few others. I agree with Charles, J.A. that the respondent ought be re-sentenced as a person who is now making significant progress towards rehabilitation and that to return him to custody would threaten that progress. The sentences proposed by his Honour are appropriate, for the reasons he has stated.
This is an instance where the imposition of a suspended sentence, as one part of a multi-faceted sentencing order, does serve a real purpose. Whether the sentence now proposed would have been appropriately imposed by the sentencing judge is not now the relevant question. Events have changed since that time. Whilst the respondent is entitled to emphasise the progress towards rehabilitation he has made, and ought be encouraged to continue on that path, the suspended sentence serves a real purpose in providing additional motivation for him to do so. There could be little doubt that he would be called on to serve the whole of the sentence should he further offend during the period of its suspension.
BYRNE, A.J.A.:
I, too, agree with the orders proposed by the learned Presiding Judge.
I wish only to add a brief comment since I am of the view that the sentence in this case was, on its face, a manifestly inadequate response to the convictions in terms of the offences and their circumstances, in terms of their impact upon the victims and, especially, having regard to the very bad criminal record of the respondent. I was particularly touched by the victim impact statements which demonstrate the enduring adverse effects of violent criminal conduct such as this. It is a cause of considerable concern to me that the respondent does not appear to recognise this.
I will not repeat what has been said by the other members of the Court as to the reasons why the sentencing judge was moved to grant him mercy. I agree with them and I agree that the respondent was indeed fortunate that his fate was in the hands of such a compassionate man. I would, however, wish to emphasise that the sentence which he received and that which he will receive from this Court is not to be seen by the respondent or, indeed by others who may be minded to act as he did, as the norm for such cowardly and despicable conduct. The respondent has given an indication that he is prepared to change his ways and the Court has been prepared to act upon this to give him one more chance. I hope he will come to recognise this.
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