Harrison v The Queen
[2013] VSCA 6
•31 JANUARY 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| CORI JI HARRISON | S APCR 2012 0235 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
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JUDGES: | MAXWELL P and WHELAN JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17 JANUARY 2013 |
DATE OF JUDGMENT: | 31 JANUARY 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 6 |
JUDGMENT APPEALED FROM: | R v Harrison, (Unreported, County Court of Victoria, Judge Douglas, Date of Sentence 20 September 2012) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Attempted Theft (x2), Theft (x4), Make Threat to Kill, Attempted Armed Robbery, Burglary, Intentionally Damaging Property – Sentence of 3 years 4 months imprisonment with non-parole period of 20 months – Whether sentencing judge erred by failing to have proper regard to the principles concerning the sentencing of a young offender – Whether sentence is manifestly excessive in all the circumstances – Leave refused – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Greg Thomas Barrister & Solicitor |
| For the Crown | Mr B Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
WHELAN JA:
On 20 September 2012 the applicant was sentenced by a judge in the County Court to a total effective term of imprisonment of 3 years and 4 months with a non-parole period of 1 year 8 months. He was sentenced to that term on a series of charges arising out of four offending episodes in early April 2012. At the time of the offending and at the time of sentence he was 19 years of age. The sentence imposed was a sentence to adult imprisonment.
A total of nine offences were committed in the course of the four episodes.
In the first episode the applicant attempted to steal milk and cigarettes from a service station at Seaford on 2 April 2012, and he and a co-offender successfully stole petrol from that service station. When challenged by a female service station attendant while trying to leave with the milk and cigarettes, the applicant threatened her saying ‘I’m going to kill you, bitch’. The offences arising out of this episode were attempted theft, theft, and making a threat to kill.
The second episode occurred approximately 14 hours after the first, still on 2 April 2012, and involved a retail business in Carrum Downs. The applicant and two co-offenders walked into the business. One co-offender then went to wait in the car while the applicant and the other went to the furniture section of the store. Each of the applicant and the co-offender then attempted to walk out of the store carrying an LCD television set. The co-offender succeeded in reaching the car outside with his television. The applicant dropped his when challenged by staff. The applicant then went to the register, brandished a knife at staff, and demanded money. When a female staff member told him that there was none, he threw a statue at her before leaving. The offences committed in this episode were attempted armed robbery, theft and attempted theft.
The third episode occurred the next day, on 3 April 2012. The applicant and a co-offender stole cigarettes and petrol from a service station. The applicant’s offence on this episode was theft.
The fourth episode occurred on 4 April 2012 at 5.30 am. The applicant and a co-offender each drove cars to the same retail store that was the subject of the offences in the second episode. One of the cars was a stolen car. The stolen car was reversed into the front glass doors of the store causing substantial damage, estimated at $7,000 to $8,000. The applicant and the co-offender then stole six television sets with a total value of approximately $2,500. The offences committed by the applicant in this episode were burglary, intentionally damaging property, and theft.
The applicant was arrested on 6 April 2012. In addition to being charged with the offences to which I have already referred, the applicant was also charged with two other offences, namely possession of an unregistered hand gun and dealing with property suspected to be the proceeds of crime. These offences were dealt with at the Melbourne Magistrate’s Court on 20 July 2012 and the applicant was sentenced to a term of 9 months’ detention in a Youth Justice Centre.
The applicant pleaded guilty to the offences for which he was sentenced in the County Court on 20 September 2012. The individual sentences imposed were as follows:
Episode
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
Ep 1 1. Attempted theft [s 321M and s 74 of the Crimes Act 1958] 5 years
[s 321P and s 74 of the Crimes Act 1958]
5 months ‑ 2.
Theft [s 74 of the Crimes Act 1958]
10 years [s 74 of the Crimes Act 1958]
6 months
2 months
3.
Make threat to kill [s 20 of the Crimes Act 1958]
10 years [s 20 of the Crimes Act 1958]
3 months
‑
Ep 2
4.
Attempted armed robbery [s 321M and s 75A(1) of the Crimes Act 1958]
20 years [s 321P and s 75A(2) of the Crimes Act 1958]
10 months
‑
5.
Theft
10 years
12 months
‑
6.
Attempted theft
5 years
8 months
2 months
Ep 3
7.
Theft
10 years
6 months
‑
Ep 4
8.
Burglary [s 76 of the Crimes Act 1958]
10 years [s 76(3) of the Crimes Act 1958]
30 months
3 months
9.
Intentionally damage property [s 197(1) of the Crimes Act 1958]
10 years [s 197(1) of the Crimes Act 1958]
30 months
Base sentence
10.
Theft
10 years
30 months
3 months
Total Effective Sentence:
3 years 4 months (40 months)
Non-Parole Period:
1 year 8 months (20 months)
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
None (PSD had been taken into account in the Magistrate’s Court sentences in July 2012)
6AAA Statement: The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted after a trial would have been 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
In his notice of application for leave to appeal the applicant included a proposed ground concerning parity with one of the co-offenders. That proposed ground was not persisted in at the hearing of the application. The two proposed grounds which were relied upon, and which were argued together, were that the sentencing judge erred by failing to have proper regard to the principles concerning the sentencing of a young offender and that the sentence imposed was manifestly excessive in all the circumstances. The submissions, as refined orally, focused upon the issue of whether it was open to the sentencing judge to impose a term of adult imprisonment rather than a term of detention in a Youth Justice Centre. In terms of the length of the sentences, a submission was made that the sentence of 30 months on the theft count concerning the six television sets stolen in the fourth episode was itself excessive.
In the course of the plea, reports had been tendered from the Southern Youth Justice Program and oral evidence had been given by Ms Kim Paynter, a team leader with the Southern Youth Justice Program. In substance, Ms Paynter expressed the opinion that the applicant hadn’t ‘exhausted his time in Youth Justice’ and that in the adult prison system ‘he could be seen as vulnerable’. The applicant was assessed as being suitable for detention in a Youth Justice Centre.
Although the applicant is still young, he already has an extensive criminal history. Her Honour set out that history in detail and I will not repeat it, save to say that he has been before the courts and been dealt with on many prior occasions for thefts, burglaries, criminal damage, and for some offences of violence. At the age of 14 he was placed on a good behaviour bond. When he was 15 he was placed on probation three times. He breached probation and was placed on a youth supervision order when he was 17. He breached that order and was sentenced to detention in a Youth Justice Centre when he was 17 and again when he was 18.
The applicant has been released on youth parole twice. Each of those paroles was cancelled because of further offending. He was on youth parole at the time the offences for which he was sentenced on 20 September 2012 were committed.
The applicant was first released on youth parole on 22 August 2011. That parole was cancelled on 16 November 2011. He was released again on youth parole on 6 February 2012. The period which he then had to serve on parole was only a little over two months, but during that short period he committed the offences for which he was sentenced in the County Court, as well as the offences for which he was sentenced in the Magistrate’s Court. His compliance with his parole conditions was poor. He persistently failed to attend appointments for supervision, counselling and drug and alcohol treatment. The sentencing judge set all this out in her sentencing reasons. She did not refer to the sentence of detention in a Youth Justice Centre imposed in the Magistrate’s Court in July 2012 but she did address that matter with counsel during the course of the plea.
The sentencing judge focused in her reasons upon the applicant’s youth. She referred to and quoted relevant authority and she observed that given the applicant’s youth she was required to give more weight to rehabilitation than for adult offenders, and she said that she did so. She nevertheless reached the conclusion that ‘the only appropriate sentence’ was a term of imprisonment in adult custody. In this respect she referred to the seriousness of the fourth episode which she characterised as a ‘ram-raid’, to the applicant’s prior criminal history, to the fact that the offences were committed whilst on youth parole, and to the applicant’s continued drug abuse. She made a comment to the effect that she considered it to be ‘critical’ that the applicant complete a comprehensive drug treatment program at Marngoneet prison before being released on parole. On the hearing of the application, counsel for the applicant informed the Court that the applicant is indeed presently at Marngoneet, that he is already participating in programs, and that it is expected that he will be undertaking a drug and alcohol program there.
On the application, what was put was that the seriousness of the offending in this case was not at such a level as to warrant the conclusion which her Honour reached as to adult prison. It was submitted that her Honour ought not to have imposed a term of adult imprisonment in circumstances where the evidence was that the youth justice system could still offer something to the applicant. It was submitted that it was simply not open to the sentencing judge not to try a further term of detention in a Youth Justice Centre. In addition to reliance upon the well known principles concerning youthful offenders set out in R v Mills,[1] to which her Honour referred and quoted, reliance was also placed on the decisions of this Court in R v Huynh,[2] DPP v Lawrence,[3] R v Azzopardi & Ors[4] and DPP v Hill.[5]
[1][1998] 4 VR 235.
[2][2004] VSCA 156. (‘Huynh’)
[3](2004) 10 VR 125. (‘Lawrence’)
[4][2011] VSCA 372. (‘Azzopardi’)
[5][2012] VSCA 144. (‘Hill’)
Counsel for the applicant accepted that leave to appeal could not be granted unless it was established that it was reasonably arguable that it was not open to the sentencing judge to conclude that the only appropriate sentence in the circumstances was a term of imprisonment in adult custody.[6]
[6]DPP v Karazisis (2010) 31 VR 634, 662-3.
Counsel for the applicant argued that the kind of offending which warrants a reduction in the significance of the sentencing considerations which are particularly referable to young offenders is offending of a much more serious kind than that which occurred here. It was in this context that the decisions in Huynh, Lawrence and Azzopardi and Hill were relied upon.
So much might be accepted. But the authorities also reveal that the number and nature of an offender’s prior convictions alone or in combination with the nature of the relevant offending may also limit the degree of leniency that can be accorded on the basis of youth.[7] Rehabilitation will almost always remain a consideration of great importance.
[7]Huynh, [15] and DPP v McCloy [2006] VSCA 99, [61].
It was not contended that her Honour in this case ignored the importance of rehabilitation. It is clear that she did not do so, as is most obviously revealed by her express statement to that effect, to which I have previously referred, and by her reference to what she saw as the critical need for the applicant to undertake a drug
treatment program at Marngoneet. What is put, however, is that, in the combination of circumstances which existed here, it was not open for her Honour to conclude that a term of adult imprisonment was the only appropriate one.
I do not consider that it is reasonably arguable that her Honour’s conclusion was not open. The sentencing judge set out the relevant circumstances and set out her reasons. The factors she considered to be significant were the nature of the offending in the 4th episode, the applicant’s criminal history, the fact that the offences were committed while on youth parole and the applicant’s continued drug abuse.
It is certainly true that a conclusion that another attempt at a disposition in the youth system might be made, was open. But her Honour’s conclusion that the combination of the factors she set out were such that imprisonment in adult custody was the only appropriate sentence, was also one which was open.
As to the one particular complaint which was made as to length of sentence, being the 30 months imposed for the theft of the six television sets, it seems to me that that particular sentence was not outside the permissible range given the number of prior offences of that nature which the applicant has committed. The applicant has in excess of 30 findings of guilt or convictions for theft or similar offences. In any event, even if this particular sentence were excessive, in my view there is no reasonable prospect that the Court of Appeal, if leave were granted, would reduce the length of the total effective sentence.
It seems to me that leave to appeal should be refused.
MAXWELL P:
I agree with Whelan JA.
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