Im v McDevitt [No 1]
[2015] ACTSC 178
•2 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | IM v McDevitt [No 1] |
Citation: | [2015] ACTSC 178 |
Hearing Date: | 26 March 2015 |
DecisionDate: | 2 April 2015 |
Before: | Penfold J |
Decision: | The appeal is upheld, and the appellant will be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – juvenile offender with good prospects of rehabilitation sentenced to 26 months imprisonment with 15 months in full-time custody before sentence suspended – importance of rehabilitation of young offenders – period to be served in full-time custody manifestly excessive – appeal upheld – offender to be re-sentenced. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7(1), 133C, 133D |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571 Christopher John Coggan v The Queen [2013] ACTCA 49 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 R v GD, DD, AK, & BW [2012] ACTSC, Penfold J, 20 June 2012 |
Parties: | IM (Appellant) Jason Luke McDevitt (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Mr M Reardon (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 64 of 2014 |
Decision under appeal: | Court: ACT Children’s Court Before: Magistrate Morrison Date of Decision: 11 July 2014 Case Title: McDevitt v [IM] Court File Numbers: CH 1731/12; CH 1732/12; CH 96/13; CH 97/13; CH 400/14; CH 404/14; CH 402/14; CH 403/14; CH 427/14; CH 428/14; CH 429/14; CH 430/14; CH 431/14 |
Introduction
On 11 July 2014 IM was sentenced in the Magistrates Court for 30 offences being:
(a)six aggravated burglaries;
(b)three burglaries;
(c)12 thefts;
(d)six offences of taking or using a motor vehicle without consent;
(e)two offences of obtaining financial advantage by deception; and
(f)one failure to appear on a bail undertaking.
The offences
The offences were outlined by his Honour in his sentencing remarks, which I have drawn on for the following summary.
3. In the early hours of Monday, 24 December 2012, a resident of Yarralumla woke to the sound of persons whispering outside his residence. He subsequently discovered that the home had been entered and property stolen. That occasion gave rise to charges of burglary and theft. The value of the property stolen was $500.
4. On the same day, a resident of Macarthur discovered that their property had been entered and an Apple iPad valued at $750 stolen. That also gave rise to charges of burglary and theft.
5. IM was first before the court on 31 December 2012. He was granted bail and remanded to appear on 11 January the following year but he did not do so. That resulted in a charge of failing to appear.
6. The next offences took place between 4 and 6 April 2014. At sometime between those two dates, a Ford Focus motor vehicle was taken from the car park of an apartment complex. The taking of the vehicle gave rise to a charge of driving that Ford Focus motor vehicle dishonestly and without consent.
7. On 10 April 2014, the owner of a Toyota Tarago vehicle noticed that his car had been taken from the driveway. CCTV footage from a 7-Eleven store in Holt showed the vehicle being driven to the store on that day. IM was seen to exit the vehicle and enter the store. That conduct gave rise to a charge of riding in the Toyota Tarago dishonestly and without consent.
8. Sometime between the late evening of Thursday, 10 April and the morning of Friday, 11 April 2014, a Suzuki motor vehicle and a Mercedes motor vehicle were taken from the driveway of a residence in Conder. The residence had been entered by removing the flyscreen on a side window. Various items of property had been stolen from the residence to the value of approximately $2,100. One of the items taken was a credit card. IM was captured on CCTV using that credit card at a 7-Eleven store in the early hours of the morning of Friday, 11 April. The conduct just described gave rise to charges of aggravated burglary, theft, and dishonestly and without consent taking the Suzuki motor vehicle.
9. Sometime between the evening of Saturday, 12 April and the morning of Sunday, 13 April 2014, a residence in Yarralumla was entered. Various items of property were taken, including the keys to a Subaru Forester motor vehicle. The vehicle was also taken. IM was subsequently seen on CCTV footage driving the vehicle through a McDonalds drive-through. Those circumstances gave rise to charges of burglary, theft and taking that Forester motor vehicle without consent. The total value of the property taken was $1,000. Not all of the property has been recovered.
10. On Sunday, 13 April 2014, two residents of a Red Hill home returned to their home and noticed that their vehicles were missing. The vehicles were another Subaru Forester and a BMW. Other items of property were also missing from the home. There were no signs of forced entry and the owner believed that he may have left the front door insecure. The circumstances just described gave rise to charges of aggravated burglary, theft, and taking the BMW motor vehicle without consent. The value of the property taken was $5,400. Again, the property has not been wholly recovered.
11. On that same day, that is Sunday, 13 April 2014, other residents of Red Hill awoke to find that their home had been entered and various items stolen. Those circumstances gave rise to charges of aggravated burglary and theft. The value of the property stolen was estimated to be $3,000. Again, the property had not been wholly recovered. There was no evidence of forced entry.
12. Again, on that same day, a resident of Wanniassa awoke to find that their residence had been entered and property stolen. Those circumstances gave rise to charges of aggravated burglary and theft. The value of the property taken was $200. Not all of the property has been recovered.
13. In the early hours of the morning of Monday, 14 April 2014, another resident of Red Hill returned to his home. He discovered a person, later identified as IM, standing at the foot of the driveway. At about that time another male person exited from the front door of his residence. IM and the other person ran from the property. The person with IM assaulted the resident by punching him to the face. The resident subsequently discovered property stolen from his home. Those circumstances gave rise to charges of aggravated burglary and theft. The value of the property stolen was $200. Again, the property had not all been recovered.
14. Some two or three weeks later, on 2 May 2014, a resident of Macgregor discovered that his van had been broken into and that tools had been stolen. That gave rise to a charge of theft. The value of the property taken was $2,000. The property was the owner’s tools of trade, such that the theft of them would interfere with his ability to earn his living. It seemed from the statement of facts that the items had been recovered.
15. Later on 2 May 2014, a resident of Duffy noticed that two BMX bikes were missing from their home. That gave rise to another charge of theft. The value of the property stolen was $899. Again, it seemed from the statement of facts that the items had been recovered.
16. Also that day, another resident of Duffy noticed that his mountain bike had been stolen. That gave rise to a further charge of theft. The value of the property stolen was $500. It appeared from the statement of facts that the bike had been recovered.
17. On Saturday, 3 May 2014, a resident of Cook awoke to find that the house had been entered and property stolen. The keys to a Toyota Prado vehicle had been taken, as had the vehicle itself. Also taken were several credit cards. The credit cards were subsequently used. Those circumstances gave rise to charges of aggravated burglary, theft, taking the Toyota Prado dishonestly and without consent, and two charges of dishonestly and by deception obtaining a financial advantage from the Commonwealth Bank. The value of the property stolen in the burglary was $4,625. Not all of that property was recovered. The amount of the financial advantage was $46 in relation to the first charge, and $40 in relation to the second.
18. On 5 May 2014 IM was apprehended by police. In the course of a recorded interview with police he made a range of admissions.
The sentencing Magistrate noted that in relation to each of the burglaries and aggravated burglaries, it was an aggravating fact that the premises were residential premises. His Honour also inferred from the statement of facts and from the contents of the pre-sentence report that IM was indifferent to the presence of the residents in their homes when he entered them, and treated that too as an aggravating factor.
In relation to each of the offences of burglary and aggravated burglary, his Honour assessed IM’s offending in the lower middle-range of objective seriousness for offences of that type.
IM’s circumstances
His Honour also summarised IM’s circumstances, by reference to the pre-sentence report and other material, and said:
Your history indicates that you have been found guilty of stealing a motor vehicle, being in possession of stolen property, theft, damaging property, riding in a vehicle taken without consent, trespass, possession of a knife, a range of driving offences and assault. Some offences on your criminal history took place after the first offences for which you are to be sentenced today, in particular, in the Wagga Wagga Children’s Court [in] February 2014 for offences of taking a motor vehicle and unlicensed driving committed [in] March 2013.
A comprehensive presentence report has been prepared. It draws on material from the NSW Juvenile Justice. The report notes that you have settled in well to the custodial environment and that there have been no issues with your behaviour at Bimberi since you were remanded in custody. You moved with your family from ... to Wagga Wagga approximately 12 months ago. You had been living with your mother and six siblings. Your father is presently in custody and has not been present in your life for the majority of your childhood because of his offending behaviour.
Your mother stated that she moved to Wagga Wagga because of the negativity associated with your father in the community and the impact this was having on you and the other children. You get along well with your mother. You are currently enrolled in year 11 at a school in Wagga Wagga and you have participated in education whilst in custody in Bimberi on remand. You have been suspended from school at Wagga Wagga on occasions for a number of reasons. Your mother says that she believes you decided to come to Canberra while you were suspended because you were bored.
You have no significant physical or mental health issues. There is no history of the use of any illicit substances. There is some history of occasional alcohol use. You say that you do not believe that your criminal activity is linked to the consumption of alcohol. In the course of the interview and preparation of the presentence report, the reporting officers asked you to explain your motivations and emotions associated with the offences.
His Honour quoted the relevant part of the pre-sentence report:
[Youth Justice] asked [IM] what the victims may think and feel about what he did. He stated “Not my problem.” After some further questioning, [IM] stated, “I sort of feel bad” and admitted that he knew it was the wrong thing to do. [Youth Justice] asked [IM] if he would do things to stay out of custody. [IM] stated, “Probably.” [Youth Justice] attempted to describe a scenario similar to the current offences in an attempt to place [IM] in the shoes of a victim of a burglary.
[IM] found it difficult to do this and was unable to state any emotions attached to this if someone stole from him. [Youth Justice] and the family engagement officer attempted to place [IM] in a number of different scenarios but [IM] was not able to reflect on his thoughts around this, which made it difficult for [Youth Justice] to understand whether [IM] truly felt bad for his actions. [Youth Justice] focused on the offence which included the male returning home while the burglary was being undertaken and asked [IM] to think of himself coming home with his family in the house whilst strangers were attempting to steal his car.
[IM] could not provide details about how he might feel if this happened to him. He instead kept stating, “I don’t know.” [Youth Justice] stated that she found it extremely difficult to understand his thoughts and feelings about the offences due to his lack of detail in response.
His Honour then noted the submissions of Mr Rutherford made at the sentencing hearing that IM is shy and reserved and that he had expressed remorse for his conduct to Mr Rutherford.
For the purposes of the Crimes (Sentencing) Act 2005 (ACT) requirements at s 133D, his Honour then noted:
there is nothing in the material before me to indicate that your maturity or state of development is anything other than what would be expected of a youth of your age.
I note in passing that this was a curious conclusion given the indication from the pre-sentence report that IM is at the very least distinctly inarticulate even compared with the average 17-year-old boy; in fact he may not have the conceptual skills to engage in the kind of discussion, or indeed the thinking, required by the pre-sentence report author’s enquiries.
The sentences
All offences were dealt with by sentences of imprisonment, which can be summarised as follows:
(a)for the 2012 burglaries and thefts, 2 months and 1 month respectively;
(b)for the 2014 burglary, 5 months;
(c)for each aggravated burglary, 6 months, with a sentence of 1, 3 or 4 months for the associated theft;
(d)for the unrelated thefts, 2 or 3 months;
(e)for the motor vehicle offences, 3 months each;
(f)for the financial advantage offences, 2 months each; and
(g)for the fail to appear, 2 months.
There was significant concurrency amongst the sentences, so that the total sentence amounted to 26 months imprisonment, and his Honour ordered that the sentence be suspended after 15 months (leaving 22 sentences that would be finalised and eight sentences that would be entirely suspended subject to a good behaviour order). His Honour achieved this by, in effect, sentencing in two parts. There was some accumulation of some of the later of the 22 sentences first imposed, to give a total sentence of 15 months, and then the 11-month sentence imposed for the eight other offences was entirely cumulative on the earlier sentences.
On its face this is a fairly lenient sentence, except that IM was just 15 years old when he committed the first group of offences, being the two burglaries and two associated thefts, and 16½ years old when the others were committed, and he had not previously served time in custody.
Furthermore, as already noted, it seems likely that IM is in fact significantly immature in terms of his level of insight, capacity for consequential thinking, and his capacity for empathy; alternatively, he may simply be unusually shy. In either case, it is in my view necessary to take account of these possibilities in sentencing a young offender. To the extent that shyness may be an issue, it may be a particular issue for a young indigenous man who, as already noted, has grown up without a positive male role model.
The appeal
IM, who is still only 17, has appealed these sentences.
The original ground of appeal was that the sentence was manifestly excessive, but at the hearing counsel sought and, without objection, was given leave to add another ground, being that the Magistrate had erred in his application of s 133C of the Crimes (Sentencing) Act. That provision requires a sentencer to consider the purpose of promoting the rehabilitation of a young offender and permits the sentencer to give more weight to that purpose than to any of the other sentencing purposes set out in s 7(1) of the Act.
This is a case in which a manifest excess ground and a claim of specific error seem to be closely related, so that care needs to be taken in the proper characterisation of the real error in the sentencing.
Counsel for the appellant provided helpful submissions in which he set out a number of well-known propositions about available grounds of appeal on a sentencing appeal. It is unnecessary, for present purposes, to cite more than a few of them. First, of course, in House v The King (1936) 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ laid out the basis for an appeal against a discretionary judgment:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The nature of specific errors is clear when those comments from House v The King are read carefully; specific errors involve an identifiable mistake of law or fact, a failure to take account of a relevant matter or a consideration of irrelevant matters. They do not involve an inappropriate weighting of a relevant matter or a failure to properly take account of something.
In determining whether a sentence is manifestly excessive it is necessary to note the comments of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at [6] to the effect that manifest excess or inadequacy:
is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
Their Honours went on to point out that a sentence might be inadequate or excessive because, for instance, it is custodial rather than non-custodial, or because it is simply too long or too short.
Finally, Gageler J in Bugmy v The Queen (2013) 249 CLR 571 (Bugmy) provided a useful warning about the need to maintain a rigorous approach to the distinctions drawn between the two different kinds of House v The King errors; although his Honour referred specifically to the New South Wales Court of Criminal Appeal and the New South Wales legislation, his comments are equally applicable to other courts exercising appeal jurisdiction in cases to which House v The King applies:
51. To enliven the discretion of the Court of Criminal Appeal, under s 5D of the Criminal Appeal Act 1912 (NSW), to vary a sentence and impose such sentence as to it seems proper, the Director of Public Prosecutions must establish that the sentence under appeal either: (1) turned on one or more specific errors of principle or of fact; or (2) in the totality of the circumstances was unreasonable or plainly unjust.
52. The Director’s first ground of appeal to the Court of Criminal Appeal clearly invoked the second of those categories of appellate intervention. To establish that “the sentence pronounced was manifestly inadequate”, it was incumbent upon the Director to establish that the sentence was outside the range of available sentences in all the circumstances of the case.
53. The Director’s three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.
Consideration
Turning to consider the current sentence, the sentence stands out to me as excessive, although for practical purposes only as to the length of the immediate full-time custodial period. That period is what could in relation to an adult offender be set as a non-parole period or as the period before the sentence is suspended. For young offenders, however, there is no scope for non-parole periods and the sentencer must specify how much of the sentence (if any) must be served in immediate full-time custody before the sentence is suspended subject to a good behaviour order; I shall refer to that period as the pre-suspension period.
Specific error
The reason why the pre-suspension period seems excessive in this case is the emphasis placed by s 133C on the rehabilitation of young offenders. This might imply that his Honour had in fact erred in applying s 133C, but this would not be correct. His Honour said:
It seems to me that the proper approach for sentencing purposes is to treat the evidence of good support from your mother and the lack of mental health concerns and the lack of substance use as a basis for optimism about your prospects of rehabilitation. Having regard to those things, it is appropriate that some significant part of the term of imprisonment be suspended.
That is, his Honour did consider rehabilitation and indeed concluded that IM had good prospects of rehabilitation, and that this required suspension of a significant part of the sentence. His Honour did not overlook s 133C, or mis-apply it in any identifiable way. He did not in my view make an erroneous factual finding about the scope for rehabilitating IM and the relevance of a suspension period to that rehabilitation, and he did not consider an irrelevant matter or fail to consider a relevant one. I cannot see an error of the first kind identified in House v The King and in Bugmy in his Honour’s approach to IM’s rehabilitation and the consequences of that for determining the pre-suspension period.
I note in this context that whether his Honour gave too little or too much weight to the promotion of IM’s rehabilitation, or considered it “properly”, is not a question that raises the possibility of such an error.
That disposes of the new ground of appeal that was added with leave.
Manifest excess
As to the manifest excess ground, despite having apparently worked through the relevant legal and factual issues, and having found that IM had good prospects of rehabilitation and that this required the suspension of a substantial period of the sentence, his Honour then imposed immediate full-time custody for a period equal to 58% of the total sentence. That period may be compared with the non-parole periods set for adult offenders. In this court a range of 50% to 70% is common, with a non-parole period at the higher end of that range being relatively uncommon for offenders assessed as having good prospects of rehabilitation, and indeed in some cases being relied on (albeit not often successfully) for a manifest excess appeal.
See, for instance:
(a)the matter of Kurt John Drayton v The Queen [2013] ACTCA 44, in which the Court of Appeal said at [31] that the non-parole period in that matter, representing 69% of the head sentence, “is somewhat higher than the range of such proportion that is commonly the case in this Territory”, although it was not sufficiently higher to make out the manifest excess appeal ground; and
(b)the matter of Christopher John Coggan v The Queen [2013] ACTCA 49, in which the Court of Appeal said at [25] “that at 60% of the total sentence the non-parole period actually set was a medium level rather than a severe non-parole period”.
For young offenders, pre-suspension periods of less than 50% of the total sentence are common, and even for young offenders with apparently far worse prospects of rehabilitation. Counsel referred me to R v CA [2014] ACTSC 332 in which the Chief Justice set a pre-suspension period equivalent to less than 20% of the total sentence, and I have done similar things myself on a number of occasions (see for instance R v GD, DD, AK and BW, [2012] ACTSC, Penfold J, 20 June 2012, in which sentences of up to 39 months were to be suspended after 44% to 50% of the total sentence had been served). I am not aware of any Court of Appeal pronouncements to the effect that pre-suspension periods for juvenile offenders should generally be no shorter than the non-parole period ranges for adult offenders, and the extra focus on rehabilitation of young offenders reflected in s 133C suggests that there is unlikely to be any principle to that effect.
In summary, the 58% pre-suspension period for IM simply looks too high, in a context in which his Honour the sentencing Magistrate has found that a substantial period of suspension is both desirable and available. I cannot explain how his Honour went wrong but I conclude that the sentence is manifestly excessive and that IM must be re-sentenced.
Most of the individual sentences imposed are unexceptional and, as already noted, probably on the lenient side having regard to the details of the offences. However, when I re-sentence IM I propose to take the opportunity to reduce the sentences imposed for the two obtain money by deception offences, which could also be assessed as manifestly excessive. Those offences involve the use of a stolen credit card to obtain goods worth respectively $46 and $40. The two-month sentences imposed were to be served entirely concurrently with other sentences, and so reducing them will not have any effect on the total sentence; however, it seems unlikely that custodial terms would have been imposed for those offences if they had been the only two charges for which IM was being sentenced, and possibly not even if IM had been a somewhat older and more experienced offender. For those offences, in the context of this sentencing, recording a conviction will be a sufficient penalty.
Conclusion
Accordingly, the appeal is upheld in reliance on the “manifest excess” appeal ground, and IM will be re-sentenced.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 10 July 2015 |
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