Mackay v The Queen
[2015] VSCA 125
•27 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0063
| TROY MACKAY | Applicant/Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and WHELAN JJA | ||
| WHERE HELD: | Melbourne | ||
| DATE OF HEARING: | 27 May 2015 | ||
| DATE OF JUDGMENT: | 27 May 2015 | ||
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 125 | ||
| JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Smallwood, 28 October 2014 | ||
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CRIMINAL LAW – Sentence – Leave to appeal – Appeal – Armed robbery – Sentence of two years’ imprisonment with one year non-parole period – Whether manifestly excessive – Whether specific error – Assumption by judge that appellant would be granted parole – Sentence not manifestly excessive – Specific error established – Leave to appeal granted only with respect to specific error – Appeal allowed – Appellant re-sentenced to nine month’s imprisonment and to community correction order of three years’ duration after release, with mandatory and additional conditions.
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Appearances: | Counsel | Solicitors |
| Applicant/Appellant | Mr M Phillips | Victoria Legal Aid |
| Respondent | Mr P B Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
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ASHLEY JA:
I ask Whelan JA to give the first judgment in this matter.
WHELAN JA:
On the morning of Saturday 31 May 2014 the applicant entered an Australia Post retail outlet wearing a black hooded jacket. He approached the counter with a bag and what appeared to be a small black handgun. The handgun was in fact a toy which the applicant had painted black. He demanded money from a young woman working behind the counter. An older female colleague intervened and at one point another employee also came to the counter. The staff complied with his demands and the applicant escaped with $6,500 in cash. CCTV footage in the retail outlet was sufficiently clear to identify the applicant. A family member of the applicant did identify him and at about the same time he voluntarily went to a police station and confessed.
Three victim impact statements from the staff were tendered on the plea. The three staff involved set out briefly and cogently the emotional impact of the incident on them. Whereas previously they had felt safe and secure at their workplace they are now afraid and anxious. As the sentencing judge observed,[1] the victim impact statements indicate why it is that people go to gaol for committing armed robberies. The fact that the gun was a toy does not prevent victims, who believe it to be real, from suffering fear and anxiety which can continue for very long periods of time.
[1]DPP v MacKay (Unreported, County Court of Victoria, Judge Smallwood, 28 October 2014) (‘Reasons’) [6].
The applicant was charged with one count of armed robbery. He pleaded guilty at the earliest opportunity and was sentenced in the County Court on 28 October 2014 to a term of imprisonment of two years with a non-parole period of one year. At the time of sentence he was 36 years of age.
The sentencing judge referred to the following mitigating factors:
(a)The applicant gave himself up to the police, made full and frank admissions and pleaded guilty at the earliest opportunity. He had demonstrated genuine remorse by his plea, by the admissions he made to police, in sworn evidence which he gave before the sentencing judge, and in a personal apology which he had written to the staff members.
(b)The applicant had no relevant prior convictions. The judge concluded that the material before him on the plea indicated that the applicant was ‘by and large not a violent person and not a thief’.
(c)The applicant had a very good work record and had been gainfully employed up until a few weeks prior to his offending.
(d)A number of impressive references and testimonials were tendered on the applicant’s behalf.
(e)The applicant had been bailed after 14 days in custody on the CISP program and a report as to his participation in that program indicated that he had, in the words of the sentencing judge, ‘really done the best’ that he could.
(f)The explanation for the offence was an addiction to the drug ‘ice’ which the sentencing judge found was of some 12 months’ standing at the time of the offence. Drug screen test results were tendered on the plea as a consequence of which the sentencing judge was satisfied that the applicant had not used illegal substances since the day that he had attended the police station and confessed. In the circumstances the sentencing judge concluded:
… the risk of you reoffending would be very low indeed if you could make certain that ice was never used again.[2]
[2]Reasons [9].
In sentencing the applicant to a term of two years’ imprisonment with a non-parole period of one year the sentencing judge said:
In my view the only available option here is one of active custodial sentence.[3]
A little later the sentencing judge said:
Unfortunately there is only one option open here but what I have endeavoured to do is give you an opportunity for parole at a time earlier than might have otherwise been the case and I have moderated the sentence to be imposed by reason of the factors that I have referred to.[4]
[3]Reasons [7].
[4]Reasons [10].
The applicant now seeks leave to appeal the sentence on two proposed grounds. The hearing proceeded on the basis that if leave were granted the appeal would be determined instanter. The two proposed grounds are:
1.The sentence imposed is manifestly excessive having regard to the principles in Boulton[5] and in light of:
[5]Boulton v The Queen [2014] VSCA 342.
(a) The early plea of guilty;
(b) That the applicant gave himself up to the police voluntarily;
(c)That the applicant made full admissions to the police of his offending;
(d) Remorse;
(e) The insight shown by the applicant into his offending;
(f) The absence of relevant prior convictions;
(g) The applicant’s positive work history;
(h)The ‘very low’ risk of re-offending if the applicant makes sure that he never used ‘ice’ again;
(i) The applicant’s significant attempts towards rehabilitation.
2.The learned sentencing judge, who sentenced without the benefit of the guideline judgment in Boulton, erred in determining that there was ‘only one option’, namely an ‘active custodial sentence’ in respect of the sentence to be imposed.
The maximum penalty for the offence of armed robbery is 25 years’ imprisonment.
The applicant was sentenced on 28 October 2014. In September 2014 the relevant provisions of the Sentencing Act 1991 (the ‘Act’) concerning community correction orders (CCOs) were amended in two ways.
First, s 5(4C) was introduced which reads as follows:
A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in ss 48F, 48G, 48H, 48I and 48J are attached.
Secondly, s 44 of the Act was amended so as to increase the period of imprisonment with which a CCO could be combined from three months to two years.
Those provisions were operative at the time the applicant was sentenced. But he was sentenced before this Court’s guideline judgment in Boulton, to which both grounds of appeal expressly refer. That judgment was handed down on 22 December 2014.
The guideline judgment in Boulton explains the wide potential application of CCOs. The guidelines annexed to the judgment indicate that in every case the Court should consider: whether the crime in question is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; and whether a CCO, either alone or in conjunction with a sentence of imprisonment (which cannot exceed two years), would satisfy the requirements of just punishment. The Court emphasised in Boulton that CCOs are punitive, although obviously not as punitive as imprisonment, and observed that the new legislative regime would require courts to re-examine the type of offending that attracts imprisonment.
It is appropriate to consider the second proposed ground first.
If read in isolation, the sentencing remarks indicate that the sentencing judge considered that in the circumstances the form of sentence he imposed was ‘the only available option’ and that there was ‘only one option open’. The reasons do not refer to any consideration of a CCO. A review of the transcript of the plea hearing, however, reveals that the sentencing judge did consider a CCO.
On the plea hearing, after making submissions as to the seriousness of the offending, the prosecutor submitted that ‘an immediate custodial sentence is required’. The following interchange then occurred between the sentencing judge and counsel for the defence:
HIS HONOUR: I think that’s got to be right. The ways of going about this are either a — you only want him sentenced once. The two ways of going around it are either a parole period which reflects — opportunity for parole, sorry — and he’ll get parole. I mean, it’s getting to the stage now where you don’t trust them to give anybody parole, but that reflects the progress that he’s made. I can either do that by way of a parole period, or as I can now. - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: - - - by imposing a sentence to be followed by a community corrections order.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I would’ve thought in his particular situation that parole probably is the best option, on the basis that he has no prior convictions of significance. I would’ve thought he would get parole, and I don’t see in his situation if he does programs that the Corrections intervention in the shape of a CCO would be required.
I’ve also got the difficulty that if you get a circumstance of — you know, it just hasn’t been addressed yet by anybody, from what I can gather, but in terms of that — as to when the CCO commences — we don’t have the same provisions as you’ve got in the Commonwealth where you can say a CCO is going to commence the day after release.
You can’t do that and you run the risk of — I think it’s a risk for someone whose situation if a gaol was shut down for a week he’d get out a month early with no CCO. So it just seems to me that in his particular situation parole is the better option.
[DEFENCE COUNSEL]: Yes, I can’t take that any further other than to submit that a longer than usual parole - - -
HIS HONOUR: That’s what I’m — yes, that’s what I’m looking at doing.
If consideration is confined to the sentencing reasons, there was an apparent failure to address the issue of a CCO which, in the circumstances of this case, s 5(4C) of the Act and the decision in Boulton would require. The transcript reveals that a CCO was considered but it also reveals that in that consideration the sentencing judge had regard to his assessment of the likelihood of the applicant obtaining parole. This is a consideration which is expressly precluded by the provisions of s 5(2AA) of the Act.[6]
[6]I am unclear as to how the apparent concern which the sentencing judge had as to when a CCO might commence arises given the provisions of s 44(3) of the Act.
Boulton does not mean that explicit reference to the option of a CCO must be made in every sentence. The sentencing judge did consider it in this case and clearly intended to impose a period of imprisonment followed by a period of supervision. He could only do that in the way in which he did (two years’ imprisonment with a one year non-parole period) by making an assumption about parole which s 5(2AA) of the Act expressly precludes.
In all the circumstances, it seems to me that a sentencing error has occurred. That error is sufficiently within proposed ground 2.
As to proposed ground 1, to the extent that it has any content which is independent of proposed ground 2, I would reject it. The sentence is within the range of sentencing options available. Leave should be refused on this ground.
Given that there was a sentencing error, the next issue is whether a different and less severe sentence should be imposed.[7]
[7]On appeal the Court must be satisfied that there is an error and that a different sentence should be imposed: Criminal Procedure Act 2009, s 281. On the leave application, leave may be refused if there is no reasonable prospect a less severe sentence would be imposed: Criminal Procedure Act 2009, s 280.
In the light of this Court’s decision in Boulton, in this particular case it is necessary to ask the following question: would a CCO in conjunction with a sentence of imprisonment of less than two years satisfy the requirements of just
punishment? Given the sentencing judge’s findings, which I accept, in my view the answer is that, with appropriate conditions, it would.
I would re-sentence the applicant to a term of imprisonment of nine months and impose a CCO of three years commencing upon release, with conditions requiring assessment and treatment for drug abuse and dependency and for supervision, monitoring and management by the Secretary of the Department of Justice, in addition to the conditions imposed by s 45 of the Act.
ASHLEY JA:
I agree, and add the following. This is the second appeal heard by the Court today in which the sentencing judge appears to have assumed that in imposing a custodial sentence, incorporating a non‑parole period, the offender would in fact be released on the earliest possible day. In law, the judge could not make that assumption. What necessarily follows was that the judge was unable to compare like with like in deciding whether only what might be called a full custodial sentence would satisfy the purposes for which sentence was to be imposed. For instance, an assumption could not be made that a custodial order incorporating a non‑parole period would be the equivalent — as to the period of actual confinement — of a period of imprisonment followed by a community correction order. If such an equivalence was assumed, it could readily lead to cascading errors, one of which might be a false analysis of the merits, respectively, of release on a grant of parole and release with an ensuing community correction order.
(Discussion re order.)
The Court will make these orders:
1.There is leave to appeal on proposed ground 2. Leave is refused on proposed ground 1.
2.The appeal is treated as instituted, heard instanter and allowed. The conviction and sentence of the County Court passed on
28 October 2014 are set aside.
3.In lieu thereof, the appellant is convicted and sentenced to a term of imprisonment of nine months and a Community Correction Order of three years, commencing on his release on the completion of the term of imprisonment, on the conditions provided for by s 45 of the Sentencing Act 1991 and the following additional conditions:
(a) Pursuant to s 48D of the Sentencing Act 1991, the offender is to undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Secretary to the Department of Justice (‘the Secretary’);
(b) Pursuant to s 48E of the Sentencing Act 1991, the offender is to be supervised, monitored and managed as directed by the Secretary.
The Court will make a declaration in the usual form that there is pre‑sentence detention of 225 days, not including this day. The Court states, pursuant to s 6AAA of the Sentencing Act, that had the appellant not pleaded guilty and had he been convicted after trial, it would have imposed a sentence of three years' imprisonment with a two‑year non‑parole period.
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