Ellis v The Queen
[2015] VSCA 320
•30 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0078
| AARON JOSEPH ELLIS |
| V |
| THE QUEEN |
---
| JUDGES: | WHELAN JA and CAVANOUGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 October 2015 |
| DATE OF JUDGMENT: | 30 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 320 |
| JUDGMENT APPEALED FROM: | DPP v Ellis (Unreported, County Court of Victoria, Judge Wilmoth, 16 March 2015). |
---
CRIMINAL LAW – Sentence – Offences of burglary, theft, arson, armed robbery, reckless conduct endangering serious injury and unlicensed driving – Appellant assessed as suitable for Community Correction Order (‘CCO’) – Appellant nevertheless sentenced to 4 years imprisonment with 3 year non-parole period and no CCO – Appellant already serving a period of imprisonment for prior offences at time of sentence – Whether sentence imposed manifestly excessive – Whether insufficient regard to principles of totality and proportionality – Whether insufficient regard to prospects of rehabilitation – Whether insufficient regard to deprived background – Sentence within range – Appeal dismissed
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr V Peters | Brown McComish |
| For the Crown | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA
CAVANOUGH AJA:
The appellant pleaded guilty before the County Court sitting at Warrnambool to one count each of burglary, theft, arson and armed robbery and two counts of reckless conduct endangering serious injury. He also pleaded guilty to a summary charge of unlicensed driving. On 18 March 2015, a plea hearing took place before her Honour Judge Wilmoth. On 26 March 2015, her Honour sentenced the appellant to a total effective term of imprisonment of four years with a non-parole period of three years. A summary of the sentences imposed is set out below.
Charge Offence Maximum Sentence Cumulation 1 Burglary [Crimes Act 1958 s 76(1)] 10 years [Crimes Act 1958 s 76(3)] 9 months 3 months 2 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 9 months Nil 3 Arson [Crimes Act 1958 s 197(1) and (6)] 15 years [Crimes Act 1958 s 197(7)] 9 months 1 month 4 Reckless conduct endangering serious injury [Crimes Act 1958 s 23] 5 years [Crimes Act 1958 s 23] 2 years 4 months 5 Armed Robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 3 years Base 6 Reckless conduct endangering serious injury [Crimes Act 1958 s 23] 5 years [Crimes Act 1958 s 23] 18 months 4 months SC 13 Unlicensed driving [Road Safety Act 1986 s 18(1)(a)] 25 penalty units or 3 months’ imprisonment [Road Safety Act 1986 s 18(1)(a)] 1 month Nil Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 3 years’ imprisonment Pre-sentence Detention Declared: 184 days 6AAA Statement: 5 years (non-parole period: 4 years) Other orders: Forensic Sample Order [Crimes Act 1958 s 464ZF(2)]
A notice of application for leave to appeal against sentence was filed by the appellant on 24 April 2015 pursuant to s 278 of the Criminal Procedure Act 2009. On 22 July 2015, Beach JA granted the application for leave to appeal on the ground set out in the notice, namely:
1.The sentences imposed are manifestly excessive in that the learned trial judge failed to:
(a) have appropriate regard to the principles of totality and proportionality of the sentences received in the Magistrates’ Court when imposing these sentences;
(b)give appropriate weight to the prospects of rehabilitation of the applicant and the benefits of a Community Correction Order; and
(c) take sufficient account of the deprived background of the accused.
The reference in paragraph 1(a) of the notice to ‘the sentences imposed in the Magistrates’ Court’ is a reference to the sentencing of the appellant by the Magistrates’ Court at Warrnambool on 23 September 2014 to a total effective term of 14 months’ imprisonment with a non-parole period of eight months in respect of various groups of offences all of which were committed prior to, and were unrelated to, the offending for which the appellant was dealt with by her Honour Judge Wilmoth in the County Court. The appellant was in the course of serving the Magistrates’ Court sentence when he was so dealt with by her Honour Judge Wilmoth. The appellant had been in custody since 24 March 2014. No pre-sentence detention was declared in the Magistrates’ Court. We will return to those matters in due course.
For the reasons set out below, we will dismiss the appeal.
The issues
The appellant does not allege specific error, but only manifest excess. He does not contend that the sentencing remarks of her Honour Judge Wilmoth contain any factual error as to the circumstances of the offending or otherwise, much less any factual error that might have worked to his disadvantage. He does not suggest that her Honour omitted altogether to take into account any particular relevant matter or factor. He does not allege error of principle, as such. Rather, as indicated in the particulars of the claim of manifest excess, he alleges a failure to have ‘appropriate’ regard to the principles of totality and proportionality; a failure to give ‘appropriate’ weight to the prospects of rehabilitation and the benefits of a Community Correction Order (‘CCO’); and a failure to take ‘sufficient’ account of the deprived background of the accused. At the hearing, counsel for the appellant said that the ‘main ground of appeal, and there are supporting grounds, … is the ground of totality’. Counsel explained this by saying that the ultimate term of imprisonment imposed on Mr Ellis would see him ineligible for parole until September of 2017, by which time he would have served a total of three years and 181 days’ imprisonment commencing on 24 March 2014. Noting that Judge Wilmoth had referred Mr Ellis for assessment of his suitability for a CCO and that her Honour had received an assessment that he was suitable, counsel submitted that a combination of a period of imprisonment together with a CCO would have been appropriate and that the sentence actually imposed was manifestly excessive in terms of the total amount of time to be spent in prison.
The judge’s sentencing remarks
Her Honour Judge Wilmoth’s sentencing remarks are succinct, clear and comprehensive. It is appropriate at this stage to set them out in full.
1Aaron Joseph Ellis, you have pleaded guilty to single charges of burglary, theft, arson and armed robbery and two charges of reckless conduct endangering serious injury. You have also pleaded guilty to a summary charge of driving without a license [sic]. All these charges were committed over five days on what can only be described as a pointless spree of criminal behaviour demonstrating an antisocial attitude which took no account of the feelings or fears of those who were deeply affected by what you did. At the time you had been living in a de facto relationship for about a year with Kimberly Fullgrabe, living in Portland with her and her two children.
The Offending
2On 18 March 2014 you had been due to appear in the Magistrates Court but failed to do so. Fearful of a warrant being executed, you, together with Ms Fullgrabe and the children, spent the night in a caravan park and the next day, 20 March, you commenced a series of events leading to these charges. Whilst driving towards Portland with Ms Fullgrabe you noticed a police car and asked her to drive faster away from it. This caused an argument between you, resulting in you demanding of Ms Fullgrabe that she pull over and you then walked away. She waited but you did not return and she drove home.
3At about 7.30 pm you arrived at a rural property in Tyrendarra and entered the front door. This is Charge 1, the charge of burglary. You found a locked gun safe and tried to break it open but failed. You dragged it out of the house to a shed which you forced open and then levered open the safe which contained four firearms and some ammunition. You took all these and that is Charge 2, theft.
4You then poured flammable liquid onto the gun safe and set it on fire; that is Charge 3, arson.
5You then walked away some distance and hid three of the firearms, taking a fourth with you to a property owned by Mr and Mrs Grimshaw. At 8.30 pm in darkness you knocked and the door was answered by Mrs Grimshaw and her 18 year old son. They saw the firearm and became nervous. You stated a false name and said you had been hunting, your car had broken down and you needed a lift. You then placed the firearm on the ground as you realised Mrs Grimshaw was frightened.
6She telephoned her husband who returned home and drove you to a caravan park. You then hid the gun near the beach and at about 11.30 pm you rang Ms Fullgrabe, asking her to pick you up, which she did. On returning home and after putting the children back to bed you asked her to drive you to the beach to retrieve the gun but she refused. You drove there yourself and spent the night in the car.
7The next day you met Ms Fullgrabe at a previously agreed location, bringing the gun, a double-barrelled shotgun, with you. You continued to express concerns about the police and Ms Fullgrabe dropped you outside Port Fairy and left.
8After that you continued to ring her, causing her concern about your behaviour. She notified the police about it and that you had a gun and she tried to persuade you to surrender to the police, whereupon you became emotional and angry.
9The police began to search for you unsuccessfully. Ms Fullgrabe picked you up at Port Fairy and continued to discuss surrendering. Eventually you asked to be taken to the police station but Ms Fullgrabe did not wish to take you while you were still armed. Suddenly you threatened to blow your brains out if she did not do so and you then fired two shots out of the rear window of the car. That is Charge 4, reckless conduct endangering serious injury. You then asked to be let out of the car and Ms Fullgrabe contacted police and she was placed in crisis accommodation.
10On 23 March, with her consent you visited Ms Fullgrabe at the motel where she was staying arriving unarmed, but the following day you rearmed yourself with the gun and directed her to drive off to get petrol, after leaving you in Darts Road. At about 1 pm that day you went to a property in Heathmere occupied by Mr and Mrs Dark. There you tried unsuccessfully to start a four wheel bike and then entered the house where the Darks were watching television. You had the gun slung over your shoulder pointed at the ground and visible to them. You told them you needed their car and demanded the keys. You told Mr Dark to remain on the couch while Mrs Dark went to find them. You then followed them both around while the keys were located. Once in possession of the keys you apologised to them and left in the car.
11Police were notified and shortly afterwards a pursuit took place involving Victorian and South Australian police. You drove at a dangerous speed across the border into South Australia and back into Victoria, failing to stop when directed by police and you were observed accelerating towards the police at one stage. That is Charge 6, reckless conduct endangering serious injury as well as the summary charge of unlicensed driving.
12You crashed the car after losing control of it. You were arrested and a loaded shotgun was found in the front seat. When interviewed you explained some of your actions in terms of your persecutory delusions in that you thought you were being watched and chased. You stated that you never intended to harm anyone and you denied discharging the gun at any time but said it was loaded because you were going to kill yourself.
The effect on the victims
13Not only did you subject the Grimshaws and the Darks to a terrifying experience but you also subjected your partner and her two children to disruptive, frightening and unpredictable behaviour. Mr and Mrs Dark provided victim impact statements in which they described the effects of the invasion on their home as having made their lives very difficult, with the need for security measures in a place where they had previously felt safe but no longer do. They had to face the expense of replacing their car, which added to their stress, and they feel their lives have changed as a result of your attack on them.
14Armed robbery is a very serious offence and this case is a serious example of it. You threatened people in their home at night on a rural property and although you did not point the gun at them, you were carrying it in a visible fashion and you clearly intended it to frighten them as it did. By this means you obtained the car keys and, in the context of the fear you caused, the apology you say you made to them as you left is relatively meaningless.
15Ms Fullgrabe endured several days of being subjected to your demands and unpredictable, agitated behaviour, having to leave her home for several nights and having her school age children taken out of their beds late at night to accommodate your insistence that she drive you around. Her attempts to have you surrender to police fell on deaf ears while you put your own needs above everyone else’s.
Personal background
16Your behaviour and attitudes are consistent with what the psychologist, Ms Matthews, diagnosed as an antisocial personality disorder perhaps borne out of your very dysfunctional and indeed sad childhood.
17You grew up in South Australia and were placed in foster care at the age of 4. Soon afterwards your mother died in a car accident, although you did not know about those circumstances until recently when you were reunited with your sister after many years. When you were about 9 you lived with your father for two years but he was a violent alcoholic who beat you and your stepmother. He introduced you to alcohol and drugs at the age of 12 or 13 and, when you began to run away from him, you were returned to foster care, but lived on the streets from the age of 14 with intermittent periods spent in juvenile detention.
18None of your foster placements lasted for longer than 6 months and you attended a number of different primary schools as a result and left school before finishing Year 8. After that you had a few jobs, the last being a deckhand on a fishing boat in Portland which you enjoyed and to which you would like to return.
19Your early criminal history was mainly concerned with driving offences and may have contributed to the fact that you have never held a driving licence. Your offending soon escalated, involving firearms charges and various forms of dishonesty. You have served several sentences of imprisonment in only a few years which has led Ms Matthews to observe that you are in danger of being institutionalised.
Mitigating factors
20Your mental health history is of significance because of the circumstances of the offending. Consumption of large quantities of alcohol and illicit drugs, including ice in the last few years, appears to have been the foundation of your delusions but Ms Matthews said that you do not present with any such symptoms or other indications of psychosis and you reported some improvement since your incarceration, having been placed on appropriate medication. She considers your psychotic-like symptoms are likely related to substance abuse, although she considers that your developmental history predisposes you to distrust others and to find it difficult to form stable adult relationships. It may be that you will be able to respond well to structured, closely monitored rehabilitative measures, some of which may be available to you in custody and later upon your release.
21Other mitigating factors concern your plea of guilty to the charges which deserves a discount on your sentence because the expense and inconvenience of a trial has been avoided and, importantly, the witnesses will not have to undergo the stress of giving evidence. It is also an indication of your remorse, which I accept and which you have also expressed in letters directed to the victims and to the court. In those letters you state that you are ashamed of your behaviour and take responsibility for it and that you look forward to becoming a responsible member of the community. You would like to further your education and gain qualifications and if the letters you wrote are any indication of your ability, that would not seem an impossible ambition. Ms Fullgrabe remains supportive of you and visits with the children when she can. She was due to have surgery for a chronic condition last week and you have been supporting her as much as possible in the circumstances.
22You have now been in custody for almost 12 months since your arrest. You were on remand for 184 days and on 23 September last year you were sentenced in the Magistrates Court to 14 months’ imprisonment for a number of charges including burglaries, thefts and driving matters. A non-parole period of 8 months would see you becoming eligible for parole on 22 May. You have completed several programs to address offending and related issues and have gained some educational and vocational certificates as well and it seems you have used the time constructively.
23One of the most important sentencing principles I must consider in a case like this is general deterrence. Others who might engage in serious crimes such as armed robbery must know that severe punishment will follow.
24I take into account the mitigating factors I have mentioned as well as some encouraging signs for your rehabilitation and the principle of totality which means in effect that in determining the appropriate length of any sentence I must consider the length of the sentence you are currently serving so as to avoid it being a crushing sentence.
25The maximum terms of imprisonment which apply for these offences are as follows, for burglary and theft, 10 years, for arson, 15 years, for reckless conduct endangering serious injury, five years, for armed robbery, 25 years and for unlicensed driving, three months or a fine of 25 penalty units. I have given careful consideration to whether a Community Corrections Order to follow a period of imprisonment would be appropriate. Although you have been assessed as suitable I have decided not to take that course because the serious nature of the entire episode, particularly the armed robbery offence and the two incidents of reckless conduct, require a total effective sentence of greater duration that would enable a Community Corrections Order to be imposed as well.[1]
[1]DPP v Ellis (Unreported, County Court of Victoria, Judge Wilmoth, 16 March 2015) [1]–[25] (‘Sentencing reasons’).
We should record the following matters by way of clarification or correction with respect to her Honour’s sentencing remarks.
In paragraphs 16, 19 and 20 there are references to what was said by a psychologist, Ms Matthews. These are references to a report dated 22 August 2014 prepared by Pamela Matthews, forensic psychologist, and addressed to the solicitors for Mr Ellis. It refers to an examination on 13 August 2014 at the Melbourne Remand Centre and it recites that Ms Matthews had read various specified documents relating to several episodes of offending by Mr Ellis in 2013 and 2014. Presumably, this report was prepared principally for the purposes of the hearing before the Magistrates’ Court at Warrnambool in September 2014.
Her Honour Judge Wilmoth had before her an agreed summary of prosecution opening upon which, no doubt, her Honour’s sentencing remarks in relation to the circumstances of the offending were based. As mentioned above, counsel for the appellant made no criticism before us of the factual aspects of the sentencing remarks. On the other hand, we note that the sentencing remarks omit to state specifically that Count 5 (armed robbery) was represented by the incident on 24 March 2014 described in paragraph 10 of the remarks, being the incident in which the appellant entered the rural home of Mr and Mrs Dark with the shotgun slung over his shoulder (the shotgun being pointed at the ground but visible to Mr and Mrs Dark) and demanded and took their car. In paragraph 14, her Honour Judge Wilmoth referred to this incident as having occurred ‘at night’, but it is clear from the agreed summary of prosecution opening that it occurred in the afternoon at about 1.00 pm. Indeed, Judge Wilmoth herself refers to the time of 1.00 pm in describing this incident more fully in paragraph 10 of her sentencing remarks. The intrusion at the home of the Grimshaws occurred at night, but this was not the subject of any charge against Mr Ellis.
Her Honour was not specific as to every occasion on which the shotgun was or was not loaded during the five day period of the offending. On the appeal, counsel for the appellant submitted that there was no evidence that the shotgun was loaded at the time of the armed robbery of Mr and Mrs Dark. However, in paragraph 16 of the agreed summary of prosecution opening it is stated that Mr Ellis reloaded the gun after discharging it through the rear window of the car on 21 March 2014; and in paragraph 20 it is stated that on 24 March 2014 (the day of the armed robbery) Mr Ellis was ‘armed with the same shotgun from days prior’. Further, in paragraph 27 of the agreed summary of prosecution opening, the appellant himself is reported to have stated in his record of interview, in referring to the armed robbery, that he ‘had the gun over his shoulder as he knew that if they saw the gun he wouldn’t have to hurt anyone and they would do what he said’. He also said in his record of interview that he ‘did not discharge the firearm at any stage but it did have live rounds in it as he was going to shoot himself’. Further, it is common ground that the shotgun was loaded when, later on during the day of the armed robbery, the police finally apprehended Mr Ellis in the Darks’ ruined vehicle.
The appellant’s submissions
In his written case, the appellant’s counsel submitted that the sentences imposed were so far outside an available range as to bespeak manifest excess.
As to the matters of totality and proportionality referred to in paragraph (a) of ground 1, counsel placed emphasis in his written case on the combined effect of the Magistrates’ Court sentence and the County Court sentence, as detailed above. He submitted that this was a crushing sentence for a 27 year old ‘who was 25 years old at the date of the offending’.[2]
[2]Applicant’s Written Case dated 24 April 2015, [30].
He further submitted in his written case that the nature of the offending was of a less serious type in that the armed robbery involved the appellant in placing the weapon on the ground so as to not alarm the victims while he requested their motor vehicle.
It was also submitted in the written case that the events did not involve anyone being hurt or terrorised. It was noted that the arson was of a gun safe. The firing of the shotgun had occurred in a rural area in the presence of the appellant’s partner who was still his partner. The driving of the vehicle was admitted to be ‘quite clearly punishable’ although it occurred in an ‘unpopulated rural area’.[3]
[3]Applicant’s Written Case dated 24 April 2015, [31].
It was further submitted in the written case that, when looked at in totality, the offending had little or no reason to it. It was not done for any sense of gain. Its nature was suggestive of some mental imbalance rather than wanton criminality. It was submitted that the total sentences imposed in both courts had exceeded ‘that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’.[4]
[4]Citing Hoare v The Queen (1989) 167 CLR 348, 354, referred to in Boulton v The Queen [2014] VSCA 342, [64] (‘Boulton’) (emphasis omitted).
According to the appellant’s written case, while the offending called for a punitive order, the following passage from Boulton v The Queen was to be borne in mind:
In addition, imprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage.[5]
[5][2014] VSCA 342, [108].
It was submitted that a combination of a CCO and a term of imprisonment would satisfy the requirement of proportionality.
Turning to the matter of rehabilitation as raised in paragraph 1(b) of the particulars of alleged manifest excess, the appellant’s written case emphasised his ‘youthfulness’ and ‘deprived background’ and the fact that the appellant had been assessed for a CCO for these offences and found suitable. Again, reliance was placed on Boulton and in particular on the following passages from that case:
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
…
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.[6]
[6]Ibid [113] and [115].
In the written case, it was noted that in Ms Matthews’ report she had expressed an opinion that the appellant would benefit from treatment which focused on drug and alcohol rehabilitation, violence intervention and his offence cycle, and that he was in danger of institutionalisation. It was submitted that a sentence incorporating Ms Matthews’ recommendations would be more appropriate and would accord with the decision in Boulton.
Finally, the written case addressed the deprived background of the accused, pursuant to paragraph 1(c) of the particulars of alleged manifest excess. This submission ran along the following lines. While the applicant was not at the date of sentencing a young offender, some weight could be given to his deprived background as a youth. He was said to be 25 at the time of offending. He lived with his mother until he was four years old. His mother was killed in a motor vehicle accident about which he was not told until 2013. He spent two years with a violent alcoholic father and was thereafter placed in foster care and was unable to form any attachments. He served some lengthy sentences as a youth and cannot be said to have had the benefit of family life and support. He was deprived of his youth. Shortly before all of the offending occurred, he discovered a sister with whom he has now formed an attachment. Only then did he find out in detail the circumstances of his mother’s death, including information about the people who were with her at the time. These offences, which had no real logical basis, may have been a reaction to the events of 2013 (ie the discovery of the full circumstances of the death of the appellant’s mother). A sentence with a greater emphasis on rehabilitation rather than deterrence was appropriate in this instance because of the appellant’s relatively young age or youthfulness and in order that he not become too old for rehabilitation.
At the oral hearing, counsel for the appellant adopted his written case. In addition, he submitted that the proposed CCO conditions, as identified and approved by the Community Correctional Services, would be appropriate. He emphasised the so-called youth of the appellant and he submitted that a sentencing disposition that focused as much on rehabilitation as on punishment and deterrence would be more appropriate than the sentence that was imposed by the County Court. He said that such a disposition would reduce the risk of the appellant becoming institutionalised, which, having regard to Ms Matthews’ report, was a real risk if the appellant’s earliest eligibility date for parole were to remain at September 2017.
In answer to questions from the Court, counsel for the appellant accepted that his written case was in error in asserting that the appellant had placed his weapon on the ground during the armed robbery at the home of Mr and Mrs Dark. Rather, at the Darks’ home, Mr Ellis had kept the shotgun slung over his shoulder at all times, albeit pointing to the ground. It had been at the home of the Grimshaws — four days earlier, at night — when the appellant had placed his firearm on the ground. As already mentioned, he was not charged over the incident at the Grimshaws.
Consideration and determination
As the Crown submits,[7] when considering the ground of manifest excess, ‘the question for this Court, properly expressed, is whether the sentence imposed was reasonably open to the sentencing judge’.[8]
[7]Respondent’s Written Response dated 4 June 2015 to the Applicant’s Written Case, [4.1].
[8]McPhee v R [2014] VSCA 156, [11].
Totality and proportionality
The Crown points out, correctly, that her Honour Judge Wilmoth was aware of the nature of the prior offending and the sentence that Mr Ellis was serving at the time. She ordered that the sentence she imposed be served concurrently with the sentence Mr Ellis was then serving.[9]
[9]Sentencing reasons, [32].
It might be added that, in effect, Mr Ellis will have served only six months’ (additional) imprisonment for all of the offending comprehended by the Magistrates’ Court sentence. That offending involved either five or six[10] separate sets of multiple offences. Although all of the offences were dealt with summarily, many were indictable offences carrying significant maximum penalties. The offences included, at least,[11] theft, handling stolen goods, dealing with the proceeds of crime, assault, trespass, property damage and breach of bail. And, before all of that offending, Mr Ellis had already amassed a long list of relevant prior convictions.
[10]The uncertainty arises because the only detailed information before this Court about the prior offending in question is contained in Ms Matthews’ report dated 22 August 2014, and it is not clear from the report whether one of the six sets of offending to which she refers is the set that was ultimately dealt with by the County Court. That offending is described in the report as having occurred between 20 and 24 March 2013, but this may be a typographical error with the intended reference being to 20-24 March 2014.
[11]If the sixth set of charges was also dealt with in the Magistrates’ Court, then the offending so dealt with may also have included burglary and breach of an intervention order.
As the Crown further submits,[12] the principle of totality was raised on the plea and explicitly acknowledged by her Honour Judge Wilmoth.[13]
[12]Respondent’s Written Response dated 4 June 2015, [4.3].
[13]Sentencing reasons, [24].
We agree with the Crown that the sentence is not ‘crushing’ in the sense that it would have the effect of destroying any reasonable expectation of a useful life after release, or would provoke feelings of helplessness in the appellant when he was released.[14] In accordance with one of the accepted methods of ensuring that a sentence is not crushing,[15] appropriate cumulation and concurrency orders were made by the learned sentencing judge. As noted by Redlich JA in Azzopardi v The Queen,[16] the ‘subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance’. Mr Ellis will be eligible for parole before he reaches 30 years of age.
[14]R v Beck [2005] VSCA 11, [19] (Nettle JA); Azzopardi v The Queen (2011) 35 VR 43, [69] (Redlich JA).
[15]See Azzopardi v The Queen (2011) 35 VR 43, [63]-[66]; R v Beck [2005] VSCA 11, [19] (Nettle JA).
[16](2011) 35 VR 43, [69].
Turning to the issue of proportionality, we would observe that, generally speaking, the offence of armed robbery is a very serious offence.[17] It was open to her Honour Judge Wilmoth to regard the armed robbery in this case as a serious example of it, as she did.[18] The offence has had a significant and ongoing impact on the victims.[19] As the Crown points out,[20] the armed robbery involved Mr Ellis threatening the Dark family in their home on a rural property. Although the appellant did not point the gun at his victims, he carried it in a visible fashion, clearly intending it to frighten his victims, which it did. Whether or not the shotgun was loaded, the firearm was by nature a threatening weapon. As the Crown points out, the weapon achieved its intended purpose – the victims handed over their car. There is an unchallenged finding by the learned sentencing judge that Mr Ellis subjected the Dark family to a terrifying experience.[21] The victim impact statements of Mr and Mrs Dark demonstrate that the impact of the armed robbery on that family was fundamental and long lasting.
[17]DPP v Stevens [2013] VSCA 187, [31] (Osborn JA).
[18]Sentencing reasons, [14].
[19]Ibid [13].
[20]Respondent’s Written Response dated 4 June 2015 , [4.5.1].
[21]Sentencing reasons, [13].
Turning to the other offences for which the appellant was sentenced, it is noteworthy, as the Crown submits, that Mr Ellis not only stole firearms and ammunition from a gun safe inside a house on a rural property (later setting that gun safe on fire), but he later carried one of those loaded firearms and fired it twice out of a car window, in the presence of his partner, Ms Fullgrabe. This led to Ms Fullgrabe contacting police and being placed in crisis accommodation. Viewing the events of 20 to 24 March 2014 as a whole, there was ample justification for the finding of her Honour Judge Wilmoth that Mr Ellis subjected Ms Fullgrabe and her two children to ‘disruptive, frightening and unpredictable behaviour’.[22]
[22]Sentencing reasons, [13] and [15]. See also Respondent’s Written Response dated 4 June 2015, [4.5.2].
Further, we agree with the Crown that the appellant’s driving can only be characterised as appalling. He was involved in a police pursuit and at one stage he accelerated at the police. Ultimately, he crashed the car. We accept that, on any view, the potential for serious injury was high.[23]
[23]Respondent’s Written Response dated 4 June 2015, [4.5.3].
The suggestion that the appellant’s behaviour was irrational or pointless was not overlooked by the learned sentencing judge. In the very first paragraph of her sentencing reasons, Judge Wilmoth remarked that all of the offences were committed over five days ‘on what can only be described as a pointless spree of criminal behaviour…’. On the other hand, her Honour quite rightly went on immediately to say that the appellant’s behaviour demonstrated ‘an antisocial attitude that took no account of the feelings or fears of those who were deeply affected by what [the appellant] did’. It might be added that the appellant’s behaviour took no account of the safety of the persons who were endangered by his discharge of the firearm or, for that matter, the safety of the police officers who were involved in the pursuit and capture of the appellant, including those at whom he deliberately drove the vehicle.
Related to this question of irrationality or pointlessness was the appellant’s substance abuse history. That history was canvassed in the report of Ms Matthews and dealt with in some detail by her Honour Judge Wilmoth in paragraph 20 of the sentencing reasons. On the plea, there had been some reliance by counsel for the appellant on his client’s ‘delusions’ that he was being chased by unidentified people. However, Ms Matthews had expressed the view that the appellant’s ‘[p]sychotic like symptoms’ were likely related to substance abuse, as her Honour Judge Wilmoth noted.[24] In any event, we cannot help observing that the whole episode started with the appellant failing to attend court to answer his bail on 18 March 2014, he being a person with a history of convictions for breaching bail. Although his movements over the ensuing week were erratic, many of them seem to have been squarely directed at avoiding apprehension by the police.
[24]Report of Ms Matthews dated 22 August 2014, 3; sentencing reasons, [20].
As indicated above, the appellant’s counsel submitted in his written case, albeit under paragraph (c) rather than paragraph (a) of ground 1, that the offending behaviour may have been tied to the upsetting discovery made by the appellant in 2013 as to the circumstances of his mother’s death. It was submitted that ‘these offences which had no real logical basis may have been a reaction to the events of 2013’.[25] On the plea, however, no such linkage had been suggested. In her report, Ms Matthews had noted that Mr Ellis’ mother had died in a car accident when he was 4 years of age and that he was raised in foster care, but Ms Matthews had made no mention of the circumstances in which the appellant had discovered that information or other information about the car accident. There was thus no expert evidence to found any suggestion of a link. It is true that, before her Honour Judge Wilmoth, counsel for the appellant had mentioned that the appellant had been separated from his sister for a lengthy period and had reconciled with her ‘late’ in 2013. Counsel had said to her Honour that, as a result of the reconciliation with his sister, the appellant obtained further information about the accident in which his mother had died, including information as to which particular family members may have been to blame for the accident, and that the appellant had then had a large falling out with the family members who had been in the car. However, counsel told her Honour Judge Wilmoth that he could not take this matter any further. The matter seems to have been raised by reference to instructions recently received, and had been put forward principally, if not exclusively, as going to the prospects of rehabilitation (particularly in relation to the appellant’s relationship with his sister), rather than as an explanation for the offending. The reference to ‘late’ 2013 was not clarified. There was no attempt to place the time of the discovery of the new information as being prior to the onset of the significant separate offending for which the appellant had been dealt with in the Magistrates’ Court, being offending which stretched back to August (or possibly even March)[26] of 2013. In the hearing before us, this point was not mentioned by the appellant’s counsel orally at all. In the circumstances, we do not see the point as having any merit for the purposes of this appeal.
[25]Applicant’s Written Case dated 24 April 2015, [40].
[26]See above n 10 and 11.
In our view, the principles of totality and proportionality did not preclude the learned sentencing judge imposing the sentence of imprisonment that she imposed, notwithstanding that imprisonment will often have the adverse features described in the passage from Boulton[27] on which the appellant relied. That passage contains general observations.[28]
[27][2014] VSCA 342, [108].
[28]McGrath v The Queen [2015] VSCA 176, [61].
The appellant did not suggest on the plea or on the appeal that he should not have to serve at least some period of imprisonment in respect of the relevant offending. The question was whether a part of the period of imprisonment which might otherwise be appropriate should be replaced by a CCO. There is no doubt that her Honour gave careful consideration to this question. She had Mr Ellis assessed for a CCO. Nevertheless, she decided not to take the course of a combined term of imprisonment and CCO for the reason that ‘the serious nature of the entire episode, particularly the armed robbery offence and the two incidents of reckless conduct, require a total effective sentence of greater duration [than] would enable a Community Corrections Order to be imposed as well’.[29] As we have already indicated, in our view, the principles of totality and proportionality did not preclude her Honour from arriving at that conclusion. Further, we note that while the Court of Appeal in Boulton stated that a CCO could be suitable in cases of relatively serious offences, it also accepted that there will be cases where a sentencing court legitimately concludes that sentencing purposes cannot be sufficiently met by a CCO.[30] It was also relevantly stated in Boulton that where there is a requirement for at least some term of imprisonment, a combined imprisonment and CCO order may not be the most suitable arrangement. The Court said:
In some circumstances, it will be more beneficial to fix a non-parole period than to attach a CCO. The Adult Parole Board will then be able to assess, as the expiry of the non-parole period approaches, the offender’s rehabilitative prospects, having regard to how he/she has fared in custody, and will be able to tailor parole conditions to the offender’s needs as they then appear to be.[31]
[29]Sentencing reasons, [25]. A CCO cannot be added to a sentence of imprisonment that exceeds 2 years: Sentencing Act 1991 (Vic), s 44(1).
[30]Boulton [2014] VSCA 342, [131] and [140]. See also Hutchinson v The Queen [2015] VSCA 115, [17].
[31]Boulton [2014] VSCA 342, [198].
Thus we would reject what the appellant described as his ‘main ground of appeal’. We turn now to the supporting grounds.
Rehabilitation and deprived background
There was significant overlap in the submissions made on behalf of the appellant under paragraphs (b) and (c) of ground 1. It is convenient to deal with those submissions together.
There was considerable reference by counsel for the appellant to his client’s ‘youthfulness’.
According to the summary of prosecution opening, Mr Ellis was born on 23 March 1988. Hence the submission of his counsel that he was 25 years old at the date of the offending is only partly correct. He turned 26 years of age on 23 March 2014, the day before the day on which the armed robbery, the second instance of reckless conduct endangering serious injury and the unlicensed driving took place. The appellant had just turned 27 at the time of sentencing.
Where an offender is considered to be ‘youthful’, greater consideration is usually given to rehabilitation than to general deterrence.[32] It is also accepted that youth may be a mitigating factor at all stages of the fixing of an appropriate sentence, including in relation to the questions of cumulation, concurrence and totality.[33] However, as was observed Batt JA in R v Mills,[34] as the age in question increases, the propositions which favour the lenient treatment of youthful offenders diminish in force. Clearly, Mr Ellis is reaching the end of the period at which he could be considered youthful. In any event, even where a youthful offender is being sentenced, regard can still be had to other sentencing considerations, including general deterrence. Thus, in Azzopardi v R,[35] Redlich JA said that ‘[a]s the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth’. For the reasons indicated above, we agree with the learned sentencing judge that the appellant’s criminal conduct was serious. In our view, her Honour was entitled to place the weight that she did on deterrence as a sentencing consideration, notwithstanding that the appellant could still (just) be described as a youthful offender.
[32]R v Mills [1998] 4 VR 235, 241 (Batt JA).
[33]Azzopardi v The Queen (2011) 35 VR 43, [54] (Redlich JA).
[34][1998] 4 VR 235, 241.
[35](2011) 35 VR 43, [44].
Turning to the question of the appellant’s rehabilitation more broadly, we are not satisfied that her Honour Judge Wilmoth failed to give this matter appropriate weight. Her Honour dealt with the matter expressly, referring to ‘some encouraging signs’.[36]
[36]Sentencing reasons, [20], [22] and [24].
Her Honour made specific reference to the deprived background of Mr Ellis.[37] Although the appellant was assessed as suitable for a CCO, it does not follow that the County Court was required to take that path. In Hutchinson v The Queen, Priest JA (with whom Ashley JA agreed) said:[38]
Acknowledging that a CCO might be appropriate “even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment”, it should not be thought that Boulton offers a “Get Out of Jail Free” card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, “to punish the offender to an extent and in a manner which is just in all of the circumstances”.[39] There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.
[37]Sentencing reasons [17]-[19].
[38]Hutchinson v The Queen [2015] VSCA 115, [17] (omitting one of the two footnotes). See also Harris v The Queen [2015] VSCA 192, [26]; McGrath v The Queen [2015] VSCA 176, [53]; Dawson v The Queen [2015] VSCA 166, [40]; Manariti v The Queen [2015] VSCA 160, [29].
[39]Sentencing Act 1991, s 5(1)(a).
In our view, the learned sentencing judge was not obliged, by reason of considerations of rehabilitation or by reason of the deprived background of the appellant, or otherwise, to deal with the appellant partly (or at all) by way of CCO.
Conclusion
For these reasons, the appeal will be dismissed.
---
8
7
0