DPP v Wise
[2006] VSCA 198
•21 September 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 76 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| ALAN PHILLIP WISE |
---
JUDGES: | BUCHANAN and EAMES, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 September 2006 | |
DATE OF JUDGMENT: | 21 September 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 198 | |
---
Criminal law – Crown appeal – Aggravated burglary, burglary and theft – Offences committed to obtain funds to purchase drugs – Offender released on parole – Sentence of 24 months with a minimum term of four months manifestly inadequate – Appeal dismissed in exercise of Court’s discretion.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr K.G. Gilligan | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr M.J. Croucher with Mr R. Edney | Doogue & O’Brien |
BUCHANAN, J.A.:
The respondent is a 24-year-old man of aboriginal descent. Since his mid-adolescence he has been addicted to drugs, commencing with cannabis and quickly moving to heroin and amphetamine. He has an IQ of 78, which places him in the seventh percentile where 93% of his peers would do better. Principally as a consequence of his addiction to drugs he has an extensive criminal record: 242 prior convictions from 19 court appearances, the offences being mainly burglary and theft, but also including street and drug offences. The respondent spent a significant proportion of his adolescence and adulthood in youth training centres and prisons.
Early in the afternoon of 21 July 2005 the respondent entered the front yard of a house in Bundoora, climbed a fence and gained access to the side of the house. The respondent removed an aluminium window from its frame and entered the house. Inside, he stole two backpacks, cash, jewellery, a laptop computer, a mobile phone, an air pistol and other items. Leaving the house, the respondent climbed the back fence and entered the rear yard of the adjoining house. The respondent took a golf club from the garage and smashed the window of the laundry door, thereby gaining access to the house. The respondent walked through the house, collecting articles of property as he went, including money, a camera, wallets, watches and jewellery. A 19-year-old girl was alone in the house. She closed her bedroom door and hid in a wardrobe. After the girl's mother returned home, she saw the respondent walking down the stairs carrying a backpack containing stolen property. The respondent ran from the house and was arrested shortly afterwards.
Subsequently the respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of burglary, two counts of theft, one count of aggravated burglary and one count of possession of an unregistered firearm. After a plea the respondent was sentenced to be imprisoned for a term of 12 months on the count of burglary, for a term of four months on each of the counts of theft, for a term of 18 months on the count of aggravated burglary and for a term of one month on the count of possession of an unregistered firearm. The sentencing judge ordered that six months of the sentence on the count of burglary be served cumulatively with the sentence imposed in respect of the count of aggravated burglary, creating a total effective sentence of 24 months' imprisonment. His Honour fixed a non-parole period of four months.
The Director has appealed against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period are each manifestly inadequate. As particulars of that ground the Director alleges that the sentencing judge failed to impose sentences which adequately reflected the gravity of the offences, failed to take into account the need for general and specific deterrence, gave too much weight to mitigating factors and gave insufficient weight to the maximum penalties, the respondent's prior convictions, his subsequent offending, the effect on the victims, and the respondent's failure to reform notwithstanding previous opportunities afforded to him.
The gravity of the offences is reflected in the maximum sentences laid down by Parliament: 25 years' imprisonment for aggravated burglary, 10 years' imprisonment for burglary and theft and 15 years' imprisonment for possessing a firearm. The offences committed by the respondent, save possession of a firearm, were serious. The occupant of the house invaded by the respondent suffered emotional trauma and remains affected by difficulty in sleeping and a feeling of insecurity at night. It is, however, relevant to note that the respondent did not know of the presence of the girl. Rather, he was reckless as to whether there was any person inhabiting the house. In addition to the litany of the respondent's prior convictions, after the commission of the offences with which this appeal is concerned the respondent was convicted on a number of charges of burglary, theft and other offences, for which he was sentenced to three months' imprisonment.
The respondent can pray in aid a number of mitigating factors of some significance. He pleaded guilty to all the charges. He was remorseful. He has a deprived background. His mother died when he was four years old. The respondent was cared for by his father, grandmother and an aunt for some years until 1995, when he and his brother and sisters were housed in a hostel and then placed with foster parents. He labours under an intellectual disability which, as counsel for the appellant acknowledged, should lead to the sensible moderation of the need for general deterrence. The respondent's offending is explained, although not excused, by his addiction to drugs. At the time the offences were committed, the respondent had taken a large quantity of valium which apparently dulled his senses.
The sentencing judge, who has had a great deal of experience in this field, searched for a solution to the problem posed by the respondent. Incarceration, community-based order and a period of residence in a drug rehabilitation centre appeared to have had no effect. In the end his Honour thought the solution lay in the supervision of the respondent in the community by the Parole Board. He said:
"[The respondent] poses a serious problem in finding some method of awakening his conscience and strengthening his will. As I said, the hope lies that with growing up and growing old the psychopathological condition of youth will dissipate and he will obtain a better social conscience and will become more aware that a life lived in the way in which he has been living it is hardly worth living and that it will lead to his spending increasing periods of time in her Majesty's institutions. It becomes apparent that whatever sentence I undertake it should contain a provision which gives him a chance of recognising these matters and of doing something, as I say, to grow a conscience and to follow it successfully. That chance, it seems to me, is best given with the assistance of the Parole Board and thus it makes common sense to pass a sentence which is commensurate ... and which at the same time gives him a sufficient time under the control of the Parole Board and thus a relatively short non-parole period."
In my opinion the sentencing judge acted mercifully in sentencing the respondent as he did, to the point that the sentence and the non-parole period did not adequately reflect the seriousness of the offences. I also have reservations as to the wisdom of structuring a sentence such as this to invoke the services of the Parole Board. There are other, possibly more effective, means of supervising the respondent while he is in the community. Nevertheless, in the exercise of the overriding discretion which this Court possesses, which may lead it to decline to interfere with a sentence notwithstanding the demonstration of error, I would not allow the appeal. In reaching this conclusion, in addition to the mitigating factors to which I have referred, I am conscious that on 26 June 2006 the respondent was released on parole. If he is re-sentenced in a meaningful way, that must lead to a longer non-parole period, and so the respondent's liberty would be terminated. In the end the Director did not submit that this Court should impose a different sentence.
For those reasons I would dismiss the appeal.
EAMES, J.A.:
I agree.
COLDREY, A.J.A.:
I also agree.
BUCHANAN, J.A.:
The order of the Court is that the appeal is dismissed.
A certificate under the Appeal Costs Act 1998 is granted to the respondent.
---
CERTIFICATE
I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Buchanan, Eames, JJ.A. and Coldrey, A.J.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 21 September 2006.
DATED the day of 2006.
Associate
0
0
0