Hilson v The King
[2023] VSCA 16
•14 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0183 |
| JACKSON HILSON | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 February 2023 |
| DATE OF JUDGMENT: | 14 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 16 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1056 (Judge Lacava) |
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CRIMINAL LAW – Leave to appeal – Sentence – Multiple theft and burglary charges where applicant not principal offender – Statement in sentencing reasons did not accurately reflect applicant’s submissions – Whether impugned observation amounts to error in sentence – Misstatement had no effect on sentence – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr C Grant | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Bowler & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KAYE JA:
On 18 November 2020, the applicant, now aged 30 years,[1] and a co-offender, Kevin Grose (‘Grose’), entered a rural property in Charlton, Western Victoria. They drove to the address in a dark coloured BMW and began searching sheds, and stole a number of items, including two vehicles: a silver Nissan Navara and a white Ford Ranger dual cab.
[1]His date of birth is 24 March 1992.
On 20 November 2020, the applicant was located in Hoppers Crossing driving the stolen Nissan Navara.
On 23 June 2022, the applicant pleaded guilty to one charge of burglary[2] and two charges of theft.[3] Charge 5 alleged the theft of the Nissan vehicle and Charge 8 alleged theft of tools, a sprayer unit, car wheels, tie-down straps, a wire strainer, three bags of dog food and various calibre ammunition. On his plea of guilty, he was sentenced by a judge of the County Court on 5 July 2022 as follows:
[2]Contrary to Crimes Act 1958, s 76.
[3]Contrary to Crimes Act 1958, s 74.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 3 | Burglary | 10 years / 1200 penalty units | 2 years and 6 months | Base |
| 5 | Theft | 10 years / 1200 penalty units | 12 months | 6 months |
| 8 | Theft | 10 years / 1200 penalty units | 12 months | — |
| Total Effective Sentence: | 3 years | |||
| Non-Parole Period: | 2 years | |||
| Pre-sentence Detention Declared: | 591 days | |||
| Section 6AAA Statement: | Total Effective Sentence 5 years Non Parole-Period 3 years and 6 months | |||
| Other Relevant Orders: 1. Forfeiture and disposal orders | ||||
Grose pleaded guilty to seven charges of theft,[4] two charges of burglary,[5] two charges of theft of firearm,[6] prohibited person possess a firearm[7] and related driving offences.[8] The theft charges including the theft of two firearms which were stolen by Grose from the Charlton property. Grose was sentenced by the same judge on 8 July 2022 as follows:
[4]Contrary to Crimes Act 1958, s 74.
[5]Contrary to Crimes Act 1958, s 76.
[6]Contrary to Crimes Act 1958, s 74AA.
[7]Contrary to Firearms Act 1996, s 5.
[8]Contrary to Road Safety Act 1986, s 64 and Road Safety Rules 2017, r 300.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Theft | 10 years / 1200 penalty units | 3 months | — |
| 2 | Theft | 10 years / 1200 penalty units | 3 months | — |
| 3 | Burglary | 10 years / 1200 penalty units | 3 years | Base |
| 4 | Theft | 10 years / 1200 penalty units | 12 months | 6 months |
| 6 | Theft of firearm | 15 years / 1800 penalty units | 2 years | 12 months |
| 7 | Theft of firearm | 15 years / 1800 penalty units | 12 months | — |
| 8 | Theft | 10 years / 1200 penalty units | 12 months | — |
| 9 | Prohibited person possess firearm | 10 years / 1200 penalty units | 3 months | — |
| 10 | Theft | 10 years / 1200 penalty units | 3 months | — |
| 11 | Burglary | 10 years / 1200 penalty units | 2 years | 6 months |
| 12 | Theft | 10 years / 1200 penalty units | 12 months | 6 months |
| 13 | Theft | 10 years / 1200 penalty units | 12 months | — |
| RSO | Use mobile phone whilst driving | 10 penalty units | Convicted and discharged | — |
| RSO | Dangerous driving | 2 years / 240 penalty units | 3 months | — |
| Total Effective Sentence: | 5 years and 6 months | |||
| Non-Parole Period: | 3 years and 8 months | |||
| Pre-sentence Detention Declared: | 580 days | |||
| Section 6AAA Statement: | Total Effective Sentence 8 years Non Parole-Period 5 years and 6 months | |||
| Other Relevant Orders: 1. Compensation order for $2,400 and licence disqualification | ||||
Sentencing remarks
The judge heard the pleas for both the applicant and Grose at the same time.
The judge described the applicant’s offending as serious, a characterisation that was accepted by the applicant. It appeared to have been planned and the applicant targeted a remote unattended farm premises, intent on stealing anything to finance a drug habit. The judge regarded Grose as the principal offender who planned the offending but said the applicant ‘went along with it’.[9]
[9]DPP v Hilson [2022] VCC 1056, [1] (‘Reasons’).
Understandably, early in his reasons for sentence the judge referred to the applicant’s criminal record. The applicant has convictions from three previous court appearances in the Bendigo Magistrates’ Court. The judge noted that the criminal history included convictions for driving offences, drug trafficking, cultivating cannabis and dishonesty offences, which the judge attributed to the need to support a drug addiction. The judge recorded that the applicant had previously received community based dispositions and combined sentences which were intended to assist the applicant to rehabilitate from drugs.
The judge observed that the offending was aggravated by the fact that it occurred within eight days of the applicant being released from custody for an earlier sentence imposed in the Magistrates’ Court and at the very beginning of a Community Corrections Order (‘CCO’) he was serving for that earlier offending.[10]
[10]Ibid [6].
The judge accepted that the applicant pleaded guilty at a relatively early time and was entitled to a reduction in sentence on the basis he had saved the time and costs of a trial and had taken responsibility for the offending.[11]
[11]Ibid [8].
The judge noted there was some delay in finalising the matters which were hanging over the applicant’s head,[12] as a consequence of COVID-19. The judge said a ‘noticeable reduction’ would be given for the plea of guilty in the midst of the pandemic,[13] and recognised that time served in custody was also more burdensome due to prison lockdowns and lack of visitors. The judge noted that during his time on remand the applicant had no family visits and was not able to undertake any courses that might have assisted his rehabilitation.[14]
[12]Ibid [9].
[13]Ibid [10].
[14]Ibid [11].
Addressing the applicant’s personal circumstances, the judge observed that the applicant’s upbringing had been ‘unremarkable in a stable family environment’.[15] He completed year 12 and an apprenticeship in plastering. His own plastering business did not thrive and came to an end.
[15]Ibid [14].
The applicant has a history of drug abuse. He began experimenting with cannabis aged 17, and this escalated. By age 18 the applicant was smoking 3 grams per day, and this progressed to smoking 6 to 7 grams per day. The applicant ceased cannabis use when he was aged 25. He then moved to methamphetamine (ice) in a social partying setting, which progressed to smoking half a gram per day three days a week. In 2020, whilst in custody, he developed a dependency on the drug, buprenorphine.
On the plea, the applicant relied on a report from psychologist, Ms Carla Lechner, to establish that the applicant presented with symptoms of stimulant use disorder in early remission, adult ADHD and a major depressive disorder. Based in part on this evidence, and his own assessment, the judge accepted that the applicant would benefit from involvement with treatment services.[16] Continuing with the topic of rehabilitation, the judge said the following:[17]
I was told, and accept, that whilst on remand you have worked as hard as possible on your rehabilitation with a view to remaining abstinent from drugs on release. You are working as a mentor with disabled prisoners and your drug use is stabilised whilst you are on the methadone program.
I have taken all of this into account in arriving at the kind of sentence I should impose. In all of the circumstances I have taken the view that I should fix an appropriate period on parole to enable you to be supervised upon release by the Parole Board. Provided you receive appropriate counselling and treatment for your drug addiction, I think your prospects for rehabilitation are guarded but otherwise reasonable.
In passing sentence it was not suggested that I should do otherwise than impose a total effective sentence and fix a non-parole period.
[16]Ibid [19].
[17]Ibid [20]–[22].
Grounds of Appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1. The learned sentencing judge erred by finding that a sentence with a total effective sentence and non-parole period had been submitted by the prosecution, defence, or both.
2. The individual sentence imposed on charge 3,[18] the order for cumulation imposed on charge 5,[19] the resulting total effective sentence and the non-parole period fixed are each manifestly excessive.
[18]Burglary, contrary to Crimes Act 1958, s 76.
[19]Theft, contrary to Crimes Act 1958, s 74.
Application for extension of time
On 5 December 2022, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal. The applicant requires an extension of time because the time provided for in s 279(1) of the Criminal Procedure Act 2009 to file a notice of application for leave to appeal, being 28 days after the date of sentence, expired on or about 2 August 2022.
The application for an extension of time is supported by an affidavit of the applicant’s solicitor, Mehernaz Bowler, sworn on 5 December 2022. The respondent submits that the affidavit provides an unsatisfactory explanation for the delay, and that the application for an extension of time should be refused as there is no merit in the grounds of appeal.
On 8 August 2022, which was just outside the time limit, the applicant instructed his solicitor, who did not act for him on the plea, that he wanted to appeal the sentence. Having regard to the explanation for the delay, the difficulties in accessing legal advice from prison and that the grounds are sufficiently arguable to justify their consideration on the application for leave to appeal, we will grant an extension of time.
Ground 1
Ground 1 fastens on the following statement made by the judge:
In passing sentence, it was not suggested that I should do otherwise than impose a total effective sentence and fix a non-parole period.[20]
[20]Reasons, [22].
This statement did not accurately reflect the submissions made on behalf of the applicant and, in order to place this ground in its context, it is necessary to refer to some parts of the plea.
As already adverted to, the judge heard the pleas of the applicant and Grose at the same time. Both the indictment and the prosecution summary on which the plea proceeded differentiated between the two accused. Grose faced a number of additional charges. The two men were represented by different counsel.
In the course of advancing the plea on behalf of Grose, the following exchange occurred between the judge and counsel for Grose:
MS HELEY: Thank you, Your Honour. Mr Grose has been in custody now for 566 days. Our submission in terms of appropriate disposition is obviously a term of imprisonment. We accept that this is in the realm of head sentence and non-parole territory. The question, the primary question put forward on behalf of Mr Grose is whether Your Honour is - whether the court considers that the pre-sentence detention is a sufficient term of actual custody and so basically, the submission is about whether or not PSD time served plus non-parole period is appropriate.
HIS HONOUR: You mean is that another way of saying the non-parole period should equate with the pre-sentence detention?
MS HELEY: That's what I was trying to say, Your Honour, that's the question that we're putting to the court, whether or not that's sufficient.
HIS HONOUR: It's a lot of offending for 576 days.
MS HELEY: It is a lot of offending, Your Honour. It's a question that I put but I'm fully - I'm not saying that that's the only disposition available obviously because of the seriousness of the offending.
HIS HONOUR: Well there's got to be a - - -
MS HELEY: Your Honour's had the benefit of the - - -
HIS HONOUR: There's got to a be a head sentence and a non-parole period, I think we're in agreement on that.
MS HELEY: Yes, we are. We're certainly in agreement on that, Your Honour.
In an economical but effective plea, counsel for the applicant addressed the topic in the following way:
Your Honour will have regard to the different charges that Mr Hilson has comparative to Mr Grose and his role and parity with respect to the different offences. When all matters are balanced, it is respectfully submitted that a term of imprisonment with no further time to be served can achieve the relevant sentencing principles and is appropriate in all the circumstances.
In written submissions filed by the applicant in advance of the plea, the applicant had submitted that although a sentence of imprisonment was necessary, time served was appropriate or alternatively, a combination sentence with a CCO ought to be imposed. The prosecution did not make a submission on sentence.
We note that, as at the date of the plea, Grose had spent 566 days on pre-sentence detention and the applicant had been remanded for 575 days.
The parties’ submissions
The applicant submits that the judge was wrong to say that it had not been suggested that the judge should do otherwise than impose a total effective sentence and fix a non-parole period. The true position was the applicant had sought a sentence of imprisonment with no further time to be served, or alternatively time served in combination with a CCO. The applicant notes the Crown did not make a submission on sentence.
The applicant submits that the judge’s finding was plainly an adverse finding and made without affording the applicant procedural fairness.[21] The applicant submits that the judge failed to consider the submission that the applicant had served enough time in custody, or alternatively that the applicant’s sentence could be combined with a CCO. He says that the judge failed to take into account a submission that a disposition that did not involve further time in prison was open and adequate.
[21]Citing Lennon v The Queen [2017] VSCA 85, [23]–[24] (Weinberg and Santamaria JJA, and Kidd AJA).
The respondent submits that the judge did not make a finding, but rather referred to what he considered to be submissions made regarding the appropriate sentence. Referring to submissions made at the plea hearing by the applicant’s counsel, Grose’s counsel and the prosecutor, the respondent submits that the submissions made by all counsel at the plea hearing were economical, that the judge did not err in his articulation of the sentencing submissions made on behalf of the applicant, and that it was not a finding let alone an adverse finding.
Decision
In our opinion, the impugned observation by the judge does not amount to an error in the sentence for the purpose of s 281 of the Criminal Procedure Act 2009.
It may be accepted that the judge misstated the submission that had been made. Once the observation is seen in its proper context it is plain that the misstatement had no effect on the sentence. In summary, for the reasons the judge gave, he was of the view that time served or a combination sentence were not appropriate and that the applicant required a period of supervised release. It is plain that the judge considered, and rejected, the substance of the submission made by the applicant. On a fair reading of the reasons, it cannot reasonably be contended that the judge arrived at his decision on the basis of an inaccurately imputed concession that a non-parole period was required.
The present offending occurred a couple of days after the applicant had been released from prison. On 9 November 2020, the applicant was sentenced in the Magistrates’ Court at Bendigo on a consolidated plea covering a large number of offences. The offences included theft, retaining stolen goods and unlicensed driving, The applicant was sentenced to time served, which amounted to 122 days’ imprisonment and placed on a CCO.
Immediately on his release he met up with acquaintances and consumed drugs. A few days later he committed the burglary and theft for which he was to be sentenced. He was drug affected at the time. The applicant had earlier breached a CCO in 2019 and 2020. In those circumstances, it was entirely unsurprising that the judge concluded that a period of supervised release in parole best served the rehabilitation of the applicant. That conclusion also accorded with the evidence of Ms Lechner who opined that the applicant would benefit from involvement in treatment services on his release from custody.
It is clear from the structure of his reasons, and their context, that the judge concluded that a term of imprisonment and a non-parole period was necessary and that any less punitive disposition would not be adequate. In coming to that conclusion, it is also plain that the judge did not proceed on the basis of any concession on behalf of the applicant. The impugned passage came after the judge had concluded that a non-parole period was required and there is no suggestion that the observation was influential in his decision making. It was little more than an aside.
We are not persuaded that the judge failed to have regard to whether he could impose a less severe sentence on the basis of a mistaken understanding of the applicant’s submission. The judge was required to avoid imposing a term of imprisonment if a less punitive disposition could meet all of the sentencing objectives. Given that the applicant accepted that a term of imprisonment was appropriate and he had already served more than a year on remand, a non-parole period would have been permitted.[22] It seems close to inevitable that a non-parole period was required.
[22]Sentencing Act1991, s 11.
Further, there was no denial of procedural fairness. The applicant was able to put submissions in mitigation of sentence, including as to the form of any disposition. There was no more that could usefully have been said. And, for the reasons that we have given, we are satisfied that the judge took all relevant sentencing considerations into account.
Ground 1 must fail.
Ground 2
The parties’ submissions
In submitting that the sentences imposed on charge 3, the order for cumulation imposed on charge 5, the resulting total effective sentence and the non-parole period fixed are each manifestly excessive, the applicant relies on the following factors:
(a)an early plea of guilty;[23]
(b)remorse.[24]
(c)the effect of the COVID-19 pandemic;
(d)the substantial utilitarian benefit of the plea, reducing the expense of a criminal trial and facilitating the course of justice;
(e)delay;
(f)the applicant suffers from adult ADHD, major depressive disorder and stimulant use disorder (in early remission); and[25]
(g)prospects for rehabilitation were guarded but otherwise reasonable.[26]
[23]Reasons, [8].
[24]Ibid [12].
[25]Ibid [19].
[26]Ibid [21].
With respect to charge 3, although acknowledging the seriousness of the crime of burglary and his offending, the applicant submits that his offending was not premeditated or sophisticated, arose out of a single incident, was opportunistic and was not repeated or prolonged.
Although this was the fourth time he was to be sentenced, the applicant has used his time in prison well, he is a mentor for disabled prisoners and has worked hard on his rehabilitation in custody and addressed his drug issues by stabilising on the methadone program.
The applicant submits he was entitled to a ‘perceptible amelioration of sentence’[27] for entering a plea during the COVID-19 pandemic, and that while the sentencing judge noted a ‘noticeable reduction’ had been made for this,[28] it is not reflected in the sentences imposed. The applicant also submits the pandemic had the additional impact that any time spent in custody had been, and would be, spent under COVID-19 conditions and would be more onerous than otherwise.
[27]Worboyes v The Queen [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
[28]Reasons, [10].
The respondent submits the sentence imposed is within sound discretionary judgment.
The respondent submits that whilst the numerical value of the thefts may not have been high, the impact of the thefts was high. The respondent refers to the Victim Impact Statement of the wife of the complainant, which details the immediate impact of the theft of the Nissan Navarra on the operations of the farm, that the owner’s son is ‘intellectually disadvantaged’ and failed to comprehend how someone could come onto their property and steal, that replacing the tools stolen was not just an inconvenience but a cost only partially covered by insurance, and that the family now feel vulnerable and lack trust. The respondent submits that the offending was serious and the victim was a soft target by virtue of living on a rural property.
The respondent submits that the applicant’s moral culpability was high given he had recently been released from prison and was subject to a CCO yet still chose to return to his old associates and drug use.
The applicant’s plea was not the earliest possible plea,[29] given it came after a contested committal had been conducted. The respondent submits the judge gave appropriate weight to the plea in circumstances of the COVID-19 pandemic and the impact of COVID-19 upon prisoners. The respondent submits the judge gave appropriate weight to the delay in the matter being finalised and says the delay was ‘not inordinate’.
[29]Ibid [8].
Decision
In order to succeed in this ground the applicant must demonstrate that the sentence imposed was wholly outside the reasonable exercise of the sentencing discretion.
It cannot be doubted that the offending warranted a term of imprisonment. The applicant, albeit under the influence of Grose, participated in a burglary and theft from an unoccupied rural property. It was, as the respondent submits, a soft target. Although the value of the goods was not large in dollar terms, the burglary involved a serious intrusion onto the complainant’s farm and left them feeling understandably vulnerable and upset.
It may be accepted that the applicant’s drug addiction affects his judgment and the demands to feed the addiction are strong and not easily overcome. Those matters do not mitigate the offending. Rather, they point to an entirely anti-social motivation that must be deprecated.
The applicant has in the past been given the opportunity of less punitive dispositions that have been directed principally to the applicant’s rehabilitation. Unfortunately, these have not been successful. That the applicant would succumb to drug use so soon after his release from prison and while at the beginning of a CCO is a notable feature of the offending. This aspect was important in at least two ways. First, as the judge noted, it made some form of supervised release important. Secondly, it elevated the need for the sentence to be sufficiently stern so as to adequately address specific deterrence.
The applicant had made some progress in prison and was able to point to positive steps that he had taken both to mentor other prisoners and address his drug abuse. As the judge noted, this offending had its genesis in the applicant’s drug abuse and his prospects of rehabilitation are closely tied to his ability to avoid relapsing into drug use. In those circumstances it was well open to the judge to impose a non-parole period and to regard the time already served as inadequate.
In our view the sentence imposed, both as to its overall length and its individual components, was well within range having regard to the nature of the offence and the specific circumstances of the applicant.
Ground 2 must be rejected.
Conclusion
There will be an extension of time, but the application for leave to appeal must be refused.
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