Kirby v the Queen
[2010] VSCA 136
•8 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| STEVEN WALTER KIRBY | S APCR 2009 0533 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and HARPER JJA and HANSEN AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 8 June 2010 | ||
DATE OF JUDGMENT: | 8 June 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 136 | ||
JUDGMENT APPEALED FROM: | R v Steven Kirby (Unreported, County Court of Victoria, Judge Hart, 12 May 2008) | ||
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CRIMINAL LAW – Sentencing – Whether manifestly excessive – Numerous counts including aggravated burglary, burglary, handling stolen goods and being a prohibited person in possession of an unregistered firearm – Parole – Whether revoked parole previously granted resulting in additional period of imprisonment – Appellant sentenced to three years’ imprisonment with a non-parole period of 18 months – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | Ronald V Tait |
| For the Respondent | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an appeal from a total effective sentence of three years’ imprisonment with a non-parole period of 18 months’ imposed on the appellant on pleading guilty to one count of aggravated burglary (Count 8), two counts of burglary (Counts 1 and 4), four counts of theft (Counts 2, 3, 5 and 9), one count of dishonest handling of stolen goods and one count of being a prohibited person carrying an unregistered firearm (Count 6).
There are two grounds of appeal: first, that the individual sentences, total effective sentence and non-parole period were manifestly excessive; and, secondly, that, if the sentence were not manifestly excessive, it has become so by reason that the Adult Parole Board has since revoked parole previously granted to the appellant in relation to other offences and ordered that he serve the unexpired term of the total effective sentence imposed on him for those offences, namely, a period of 15 months.
I reject the first ground. The offences were serious offences, and the offence of aggravated burglary was particularly troubling. It was committed by the appellant entering the victim’s home in the early hours of the morning while in a drug induced state at a time when two adults and two children were sleeping there. Additionally, as the judge explained, the appellant committed Counts 1 to 7 while released on parole, and Counts 8 and 9 in February 2007 while released on bail. Consequently, s 16(3B) of the Sentencing Act 1991 required that, absent exceptional circumstances, the sentences imposed on Counts 1 to 7 be served cumulatively on any period of imprisonment which the applicant may be required to serve consequent upon cancellation of the parole order; and s 16(3C) required that, unless otherwise ordered, the sentences imposed on Counts 8 and 9 be served cumulatively on the uncompleted sentence from which he was released on parole. The applicant also had a large number of prior convictions for similar offending, in all some 287 prior convictions from 21 court appearances over the preceding 20 years, and a drug habit from an early age, to which the judge attributed all of the applicant’s previous convictions and, therefore, the 16 years which the applicant had spent in gaol during the preceding 21 years.
The maximum penalty for the offence of aggravated burglary is 25 years’ imprisonment and the individual sentence imposed on the count of aggravated burglary in this case (Count 8) was only two years imprisonment. The maximum penalty for the offence of burglary is ten years’ imprisonment and the individual sentences imposed on each of the counts of burglary in this case (Counts 1 and 4) were only 18 months’ imprisonment. The maximum penalty for the offence of theft is 10 years’ imprisonment and the individual sentences imposed on the counts of theft in this case were, on Count 3, being theft of a 1986 Volvo motor car, 18 month’s imprisonment, on Count 2, theft of jewellery and other such personalty, 12 months’ imprisonment, and on Count 5 theft of similar personalty, 12 months’ imprisonment. Additionally, the judge ordered that only six months’ of the sentence imposed on Count 1 and six months’ of the sentence imposed on Count 4 be served cumulatively on each other and on the sentence imposed on Count 8.
In all the circumstance of this case, I consider that the individual sentences, total effective sentence and non-parole period were merciful.
The second ground of appeal has more to commend it in principle but is no more compelling in fact. In point of principle, this court may take into account evidence that the applicant’s parole was revoked after sentencing and thus that the applicant is now liable to serve an additional period of imprisonment.[1] Justice requires us to reconsider the totality of the applicant’s sentence in light of that additional period of imprisonment.[2] As Redlich JA put it in R v Mourad:[3]
The Court is now required to evaluate the overall criminality involved in all the offences for which the appellant is undergoing sentence to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole.
[1] R v Alashkar and Tayar [2007] VSCA 182, [12].
[2]Ibid [38].
[3][2008] VSCA 4, [15]; R v Alashkar v Tayar [2007] VSCA 182, [38].
Counsel for the appellant submitted that when one looks at the total criminality comprised in the offences for which the appellant was sentenced by his Honour Judge Gullaci, and the sentences for which he was sentenced by his Honour Judge Hart, the total aggregate sentence of five years and four months is excessive. Counsel also argued that, when one has regard to what may be described as the relatively low level order of the offences involved, the appellant's personal circumstances at the time of offending, and his subsequent steps towards rehabilitation, it may be seen with the benefit of evidence to which the sentencing judge did not have access that the sentence imposed exceeds the needs of community protection and general and specific deterrence.
Despite the force of those submissions, I am not persuaded that a total aggregate sentence of five years and four months for the nature and number of offences for which the appellant stood to be sentenced before both Judge Gullaci and Judge Hart should be regarded as excessive. I consider that, if he stood to be sentenced at the one time in relation to all those offences, a total effective sentence of five years and four months would be within the range.
It is true, as the appellant's counsel submitted, that when Judge Hart sentenced the appellant he could not have regard to the possibility that the parole order would be revoked. And it is apparent that his Honour had in mind that the appellant should become eligible for parole after serving only 18 months of the total effective sentence imposed by his Honour. In practical terms, however, the effect of the cancellation of the appellant's parole was that the total head sentence increased only from three years to four years and three months; and the non-parole period which he must now serve remains at 18 months as Judge Hart envisaged it should be.
Sub-section 16(3B) of the Sentencing Act1991 is clear that:
In the absence of exceptional circumstances, a term of imprisonment imposed on an offender for an offence committed whilst released on
parole must be served cumulatively on any period of imprisonment he may be required to serve consequent on any subsequent cancellation a parole.
In this case it is not suggested that there are exceptional circumstances. All that is said is that, having regard to the apparent improvement in the appellant's condition and beneficial change in his circumstances since he was sentenced, his prospects of re-offending are now so much reduced and his chances of complete rehabilitation so much increased that one might take a more lenient view of the application of s 16(3B) than was taken by the judge below.
Given, however, the evident policy of s 16(3B), I do not consider that the effective head sentence of four years and three months' imprisonment is even now disproportionate to the totality of the criminal offending involved, and, just as importantly, given the undoubted need for community protection and to do what can be done for the rehabilitation of the appellant, I am not persuaded that the non-parole period of 18 months should be regarded as excessive.
Accordingly I would dismiss the appeal.
HARPER JA:
I agree and I do so for the reasons expressed by the learned Presiding Judge.
HANSEN AJA:
I also agree.
NETTLE JA:
The Court orders that:
1. Appeal dismissed.
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