DPP v Stone

[2003] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 200 of 2003
No. 291 of 2003

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

DEAN STONE

and

DEON LEE UREN

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JUDGES:	WINNEKE, A.C.J., CHARLES and EAMES, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2003
DATE OF JUDGMENT:	20 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 208

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Criminal law - Sentence - Aggravated burglary and armed robbery - Crown appeal - Sentence of 2 years imprisonment, and non-parole period of 12 months manifestly inadequate - Sentence of 4 years, with non-parole period of 2 years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	K. Robertson, Solicitor for Public Prosecutions
For the 1st Respondent	Mr D.J. Ross Q.C. Mr W. Doogue	Doogue & O'Brien
For the 2nd Respondent	Mr P.F.  Tehan Q.C. Mr P. Matthews	Leanne Warren & Ass.

CHARLES, J.A.: 

1. The first respondent, Dean Stone, was born on 18 November 1978 and is now aged 25.  The second respondent, Deon Lee Uren, was born on 2 March 1971 and is now aged 32.  On 23 June 2003 Stone pleaded guilty in the County Court at Melbourne to a presentment alleging five counts:  count 1, aggravated burglary; count 2, armed robbery; count 3, intentionally causing injury; count 4, false imprisonment and count 5, theft.  On 4 August 2003 Uren pleaded guilty before the same judge to the same five counts as Stone.  The incident giving rise to each of these charges occurred on the night of 12 November 2002 when the respondents were with Sarah Gatt, who has also been charged but not yet dealt with.

1. On 23 June Stone admitted a prior criminal history which included 62 findings of guilt and prior convictions from 11 appearances before the Children's Court between June 1993 and May 1996, 99 findings of guilt and prior convictions from 18 appearances before the Magistrates' Court between May 1996 and July 2002, and one prior conviction in the County Court in 1999.  The offences involved predominantly charges of theft, burglary, causing wilful damage and one armed robbery.

1. Uren, on 4 August, admitted one finding of guilt and 164 prior convictions from 16 appearances before the Magistrates' Court, including interstate matters in equivalent jurisdictions, between April 1988 and April 2002.  Predominantly these offences were burglary, theft, obtaining property by deception and a number of drug related offences.  Uren's record includes 61 offences of burglary.

1. The maximum penalties for the various offences were, for aggravated burglary and armed robbery, 25 years' imprisonment, and for intentionally causing injury, false imprisonment and theft, in each case 10 years' imprisonment.

1. On 24 June 2003 the judge sentenced Stone on each of the five counts as follows -

Aggravated burglary (count 1): 20 months' imprisonment;

Armed robbery (count 2):  20 months' imprisonment;

Intentionally causing injury (count 3):  6 months' imprisonment;

False imprisonment (count 4):                    12 months' imprisonment, 4 months   cumulative upon count 1; and

Theft (count 5):  3 months' imprisonment. 

The total effective sentence therefore was 2 years' imprisonment and the judge fixed a non-parole period of 12 months.

1. On 2 September 2003 the judge convicted Uren of the same offences and imposed identical sentences.  The Director of Public Prosecutions has appealed against the sentences imposed upon each of Stone and Uren.  In both cases the Director claims that the sentence in respect of each count and the total effective sentence and non-parole period are manifestly inadequate.  It is claimed that each sentence fails to reflect the gravity of the offences, fails to take sufficiently into account the aspect of general and specific deterrence, gave too much weight to factors going to mitigation and insufficient weight to the respondents' prior criminal history.

1. The circumstances giving rise to these offences were as follows.  Early in the year 2002, Chris Cutajar had become involved in a relationship with Sarah Gatt.  They lived together for some months.  In July of that year Cutajar decided to end the relationship.  He then did not hear from her for some months.  Uren and Stone were associates of Gatt and at the time of the offences all three were staying at the home of one Aki Alki in Upfield.  They were also accustomed to using Alki's car, a Ford LTD sedan.  Stone and Uren were told by Gatt that Cutajar had treated her badly, including demanding that she have an abortion and refusing to pay maintenance for the child she was carrying.  The judge later held that these allegations were largely, if not completely, untrue, but had been made by Gatt to encourage Stone and Uren to feel sympathy for her and to provoke them into going to Cutajar's house to obtain drugs and money.  In any event, on 12 November 2002 Stone, Uren and Gatt went in Alki's car to Cutajar's home in Tullamarine where the latter lived alone.  At approximately 11.45 p.m. Cutajar heard a knock on the door and went to look through the peephole to see who it was.  He saw it was Gatt on the other side of the door and, believing she was on her own, turned on the porch light, opened the door and stepped back to allow Gatt inside.  Stone then came towards Cutajar holding a knife in his left hand above his head.  Cutajar grabbed Stone's hands and the two began wrestling in the hallway.  Uren then tackled Cutajar from behind and Cutajar fell to the ground (count 1, aggravated burglary).  In the course of the altercation Cutajar discovered that he had been stabbed (count 2, intentionally causing injury).  Stone, who was holding the knife, stayed on top of Cutajar holding it close to the latter's face.  Uren then demanded money, drugs and Cutajar's wallet.  Cutajar replied that his wallet was on the bar, a "bag of dope" was on the table in the kitchen and that there was some money in the bedroom.  Uren then demanded that Cutajar provide the PIN number for his St George Visa card.  Cutajar wrote the number down on a piece of paper.  Uren told Stone he was going to the bank to see if Cutajar was lying or not.

1. Gatt and Uren then left, whilst Stone continued to hold Cutajar down keeping the knife to his throat (count 3, armed robbery; count 4, false imprisonment).  Uren then went to the Commonwealth Bank ATM in Tullamarine and withdrew $1,000 from Cutajar's account.  Ten minutes later Gatt and Uren went back to the Australia and New Zealand Bank ATM at Gladstone Park Shopping Centre and withdrew two further amounts of $800 and $40; all that remained in the account (count 5, theft).  When Uren and Gatt returned, Uren said that they had emptied the account and the three offenders left taking with them a "Kicker" brand subwoofer speaker and two pairs of sunglasses.  A number of other personal items belonging to Cutajar were stolen, including items of clothing and CDs.  As they left, Uren said to Cutajar words to the effect, "If you want to ring the coppers just try it and my name is Deon".

1. The victim suffered a number of injuries in the course of this incident, the major injuries being wounds to the neck, the right forearm and left thumb.  His other injuries were essentially bruising, grazes and scratches.  A victim impact statement filed during Uren's plea showed that the victim has lost day-to-day confidence, and that he found the incident very frightening and had lost a number of weeks off work as a result of the cut to the left hand.  While this victim impact statement was not present when the judge was dealing with Stone, the contents of the document indicate no more than the consequences one would in any event expect to occur as a result of an incident of this nature.

1. When Stone's plea was heard, his counsel described his personal history, which is an extremely sad one.  He has lacked parental support for most of his life, drifting among friends and without job opportunities or education.  His mother died when he was three and he became lost in the mix of his father's new relationship.  He was in and out of foster homes and group care until he was 18 and since that time has spent much of his life on the streets.  His education was poor, although he was reasonably intelligent.  Unfortunately he began to use drugs at the age of 12 and as a child and youth spent much time in Baltara and Turana.  He was in an adult gaol by the age of 19.  His life seems to have been characterised by drug addiction, particularly the use of heroin and amphetamines and the need to support his habit through acts of dishonesty.

1. On 29 January 1999 Judge Barnett had sentenced Stone on a count of armed robbery to a term of 16 months, with a minimum of 8 months.  Judge Barnett then expressed the hope that Stone would "make a go of it" and his sentence was a most sympathetic one aimed at getting Stone on the right track.  Unfortunately, since that sentence was imposed, Stone has been sentenced to gaol on six further occasions, including a sentence of 16 months with a minimum of 10 months imposed on 9 August 2001.  The result of this constant offending is that, at the time of sentence, Stone had spent three and a half of the preceding four and a half years in prison.

1. In sentencing Stone the judge relied on Stone's early plea of guilty as reflecting some remorse and facilitating the course of justice.  However, his Honour accepted that specific and general deterrence and denunciation of the offence were all important.  A factor in the construction of the sentence was plainly that his Honour was conscious of the risk, if not the inevitability, that Stone would become institutionalised, if he were not already so.  His Honour noted that Stone was still young and that it could not be said that his prospects for rehabilitation were extinguished.  Accordingly, his Honour framed the sentence on the basis that a custodial sentence was inevitable, but that a longer than normal period of parole was justified to present Stone with the opportunity to seek help on his release.

1. When the judge came to sentence Uren on 2 September 2003, his Honour addressed the question of parity and concluded that there was very little difference, for sentencing purposes, between the roles played by Uren and Stone, that conclusion not being disputed by Uren's counsel.  In the plea on Uren's behalf reliance was also placed on his personal history.  His early life had been characterised by instability as a result of his father disappearing from his life whilst he was young and Uren had had little meaningful relationship with his mother who suffered from some mental impairment.  Uren had had no contact with siblings, was on the streets at the age of 10  and had been introduced to drugs in the form of petrol and glue from a very young age.  He had had a poor education and found reading and writing difficult.  He came to Australia permanently in 1985 and his life in this country has been marked by drug abuse.  He has had relationships with a large number of women and has fathered five children from five different women.  In Uren's case the judge was concerned by a report produced by a forensic psychologist, Mr Ian Joblin, which suggested that Uren had been suffering hallucinations and that his mental state was deteriorating.  However, after obtaining a psychiatric assessment from Dr Grant Lester of Forensicare, his Honour said that there was no evidence that Uren suffered from a major psychiatric illness or that any such condition contributed to the current offences.  Although Mr Joblin had found that he was suffering a personality disorder of some severity, the judge said that this was not such as to require moderation of either specific or general deterrence, both of which remained important sentencing factors.

1. The judge's sentencing remarks make depressing reading indeed.  They include the following comment which indicates a situation closely linked with that of Stone: 

"Your background is bleak and just as miserable as Stone's.  It is distressing to listen to   backgrounds of such deprivation.  As was the case with Stone the prospect of a vicious cycle of offending, gaol, police, drug abuse, crime and ready return to prison with consequent institutionalisation is very real." 

As with Stone, Uren had also spent the overwhelming bulk of the last five years in custody.

1. In this court Ms Judd, for the Director, submitted that the sentences imposed in respect of each respondent were so manifestly inadequate that they constitute error in principle.  It was submitted that the sentences were totally inadequate given the nature of the offending.  This was a home invasion, late at night, which the victim inevitably had found very frightening and which had resulted in him moving house through fear.  The attack had been planned and the conduct inside the victim's home was of a nature designed to cause maximum terror to the victim, particularly through the holding of the knife close to the victim's face, and the use of that knife to inflict injuries on him.  It was submitted that both respondents had extensive criminal histories, including prior convictions for burglary and, in the case of Stone, a prior conviction for armed robbery.  Uren had committed these offences while he was at large in the community, after his parole had been cancelled.  Stone had committed these offences only a short time after he had been released from custody for other offending.

1. Ms Judd submitted that given the criminal history of both respondents and the fact that neither had taken advantage of opportunities previously given to them by courts in the past, there was a real requirement to impose sentences which would specifically deter each of them.  Further, there was a need to impose sentences that would deter others from committing this type of criminal activity.  The sentences imposed did not reflect the judge's acceptance that specific and general deterrence were both important sentencing factors in each case.  It was also submitted that greater cumulation should have been made to ensure that each offence was adequately recognized in the overall sentence, it being important for the victim to feel that each crime had been recognized in the sentence.  It was submitted that the sentences imposed and the cumulation orders were not effective to achieve these requirements.

1. In this court, Mr Ross, for Stone, put it that the offence was in essence a "drug run-through" and that Stone had not been engaged in planning for it.  His Honour had noted the serious risk of recidivism and institutionalisation and placed emphasis on Stone's age.  The evidence before the sentencing judge was that the respondent suffered from bi-polar disorder, or manic depression as it was once called.  He had pleaded guilty at committal and showed remorse.  It had been accepted both by the prosecutor and the judge that there should be a lengthy period of parole to reintegrate Stone into the community.  Mr Ross submitted that the prosecution should not "blow hot and cold" in this respect.  He submitted that the sentencing of Stone presented the judge with problems that were both perplexing and daunting and that the respondent's early life had been tragic indeed.  In his submission the judge was attempting to reduce the likelihood of the respondent's recidivism with some 40 years of his life still to come, and to break the cycle of institutionalisation.  He emphasised, with every justification, the wretched life that Stone had led to this point, instancing that he was in 54 different foster homes in one year of his childhood.  Mr Ross argued that the judge faced the problem of how to bring Stone back from gaol into the broader community and that his Honour had acted with bravery and the experience of 30 years working in the criminal law.

1. Mr Tehan, for Uren, submitted that this was the sentence of a judge with long experience in the criminal law.  The reasons for sentence were careful and considered, reflecting a balanced approach both to the circumstances of the offence and the offender and giving due weight to all relevant factors.  He submitted that the reasons showed full consideration of the gravity of the offence, the impact upon the victim and the need for general and specific deterrence.  Accordingly, this was not a case where insufficient weight had been given to any relevant factor.  His Honour had taken into account Uren's early plea of guilty, his cooperation and full admissions, his expressions of regret, his difficult, indeed miserable, background in the context of early drug addiction, the absence of prior convictions for violent offences and, as with Stone, the need to "break the cycle of recidivism" and the dangers of institutionalisation.  It was submitted that it was within the judge's sentencing discretion to extend a degree of leniency to Uren to maximize the prospect of rehabilitation by attempting to halt the process of institutionalisation.  Mr Tehan next submitted that the judge's approach reflected principles developed in the growing body of literature dealing with "therapeutic jurisprudence" and argued that there is emerging empirical evidence that offenders can be rehabilitated where appropriate rehabilitation programmes are combined with an approach to sentencing by judges that supports rather than undermines the rehabilitation process.  He argued that modern research suggests that punitive sentencing measures do not reduce recidivism.  Next, he submitted that even if the Court found that there was manifest inadequacy in sentence, the Court retained the discretion to decline to interfere with a sentence even though manifest inadequacy has been shown.

1. Notwithstanding the force of the arguments made by Mr Ross and Mr Tehan, and the sympathy one must feel for both respondents for the truly awful circumstances in which they have lived out their boyhoods, I have no doubt that the sentence imposed was in each case manifestly inadequate and failed to reflect either the gravity of the offending or the circumstances of the offenders.

1. I accept without hesitation that a judge is entitled to, indeed should, take into account in sentencing the purpose of preventing recidivism and institutionalisation  and facilitating a prisoner's reintegration into the community.  The circumstances of the offences were, in each case, however, very serious.  This was, as Ms Judd submitted, a very frightening home invasion late at night, by intruders armed with a knife.  The actions of both respondents were calculated to cause the maximum of terror to the victim and evidently achieved this aim.

1. Both respondents have, of course, extensive criminal histories.  It is noteworthy that Stone, after being given great leniency by Judge Barnett in January 1999 when he was sentenced for armed robbery, has since been jailed on at least six occasions.  His most recent offences were committed on 8 - 9 January of this year and resulted in convictions on 30 June for aggravated burglary, theft and criminal damage.  The sentencing judge in the case now under appeal said, understandably, that Stone was still young and that his prospects for rehabilitation could not be said to be extinguished.  One very much hopes that this is correct, but equally one can only observe that neither of the respondents has yet shown any apparent response to leniency in the past.

1. In the case of Uren, as the judge said, he has spent the overwhelming bulk of the last five years in gaol.  Indeed, his counsel put it during the plea that while Uren did not want to be locked up, he coped best in gaol.  The judge said that although Uren was older than Stone, he was too young to conclude that the prospects for rehabilitation had been extinguished.

1. The judge accepted in sentencing both Stone and Uren that specific and general deterrence were important sentencing factors.

1. The Director's appeal must accordingly, in my view, succeed.

1. The prosecutor submitted during Uren's plea, and it was accepted by defence counsel and the judge, that there was little difference for sentencing purposes

between the roles played by Stone and Uren.  I agree with that assessment.  Their past criminal histories and other relevant sentencing factors lead me to conclude that there should be no difference between the sentences now to be imposed on the respondents.  I accept that in each case their reintegration into the community is likely to be assisted by a longer than usual period of parole.

1. Bearing in mind upon a Director's appeal the appeal court should set a sentence somewhat less than might otherwise be proposed, I would propose that both respondents should be resentenced as follows: 

Count 1-   aggravated burglary;                  3 years' imprisonment

Count 2-  armed robbery;  3 years' imprisonment

Count 3-  intentionally causing injury;      9 months' imprisonment

Count 4-  false imprisonment;  18 months' imprisonment

Count 5-  theft;  6 months' imprisonment

1. I would order that six months of the sentences imposed on counts 2 and 4 be served cumulatively upon each other and the sentence imposed on count 1.  The total effective sentence would therefore become 4 years' imprisonment.  I would fix a non-parole period of 2 years.

WINNEKE, A.C.J.:

1. For the reasons given by Charles, J.A. I agree, each appeal should be allowed and that the sentences be substituted as he proposes.

EAMES, J.A.: 

1. In my judgment in R. v. Siggins, with which Batt J.A. and O'Bryan A.J.A. agreed, I said that aggravated burglary is an extremely serious offence which would normally attract a substantial sentence of imprisonment and that, in particular, for the category of the offence which is known as a "home invasion" it would only be in rare cases that the offence would not result in a significant sentence of imprisonment.

Whilst giving full weight to the experience in the criminal law which the judge brought to his sentencing task, and also making full allowance for the considerations discussed in the often cited passage of the judgment of King, C.J. in R. v. Osenkowski, and being mindful, too, of the principles which govern Director's appeals, I am left firmly persuaded that the sentencing discretion miscarried in these cases.  For the reasons given by Charles, J.A.  I agree that the appeals should be allowed and the respondents should be resentenced as his Honour has proposed.

WINNEKE, A.C.J.: 

1. The formal order of the Court is that the appeal is allowed.  The sentences imposed by the County Court on Stone on 24 June 2003 and Uren on 2 September 2003 are set aside and in lieu thereof this court imposes sentences on each respondent as follows: 

Count 1-   aggravated burglary;   3 years' imprisonment

Count 2-  armed robbery;  3 years' imprisonment

Count 3-  intentionally causing injury;         9 months' imprisonment

Count 4-  false imprisonment;   18 months' imprisonment and

Count 5-  theft;  6 months' imprisonment

1. In the case of each respondent we order that six months of the sentences imposed on counts 2 and 4 be cumulated upon each other and upon the sentence imposed on count 1.  The total effective sentences will therefore be 4 years' imprisonment.  We order that each respondent serve a minimum period of two years before becoming eligible for parole.

1. Pursuant to s.18 of the Sentencing Act we declare that Stone has served 296 days of the sentences imposed by this court.  We direct that the fact of that declaration and its details be entered in the records of the court.

1. In respect of Uren, we declare pursuant to s.18 of the Sentencing Act that he has served 171 days of imprisonment pursuant to these sentences and we order that the fact of that declaration and its details be entered into the records of the court. 

MR TEHAN: 

1. If the court pleases, I seek a certificate under the Appeal Costs Act.

MR ROSS:

1. Likewise, Your Honour.

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