McKenna v Tasmania
[2020] TASCCA 7
•29 May 2020
[2020] TASCCA 7
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: McKenna v Tasmania [2020] TASCCA 7
PARTIES: McKENNA, Jarrod Anthony
v
STATE OF TASMANIA
FILE NO: CCA 3/2020
DELIVERED ON: 29 May 2020
DELIVERED AT: Hobart
HEARING DATES: 23 April 2020
JUDGMENT OF: Wood J, Estcourt J, Pearce J
CATCHWORDS:
Criminal Law – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Multiple counts of burglary, stealing, receiving stolen property involving theft of and stripping of motor vehicles valued at approximately $180,000 – Appellant 18-19 years of age played minor role in criminal enterprise carried out by a group of older offenders – Desisted offending and substantial progress towards reform – Global sentence of 3 years' imprisonment with minimum non-parole period manifestly excessive.
Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399; TAP v Tasmania [2014] TASCCA 5; Director of Public Prosecutions v J S P [2020] TASCCA 3, referred to.
Aust Dig Criminal Law [3521].
REPRESENTATION:
Counsel:
Appellant: G Stevens
Respondent: J Shapiro and L Ogden
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 7
Number of paragraphs: 29
Serial No 7/2020
File No CCA 3/2020
JARROD ANTHONY McKENNA v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
ESTCOURT J
PEARCE J
29 May 2020
Orders of the Court:
Appeal allowed.
Sentence of 3 years' imprisonment with non-parole period of 18 months imposed 18 December 2019 set aside.
In substitution for that sentence, the appellant is sentenced to a term of 18 months' imprisonment with 12 months of that term suspended for three years from his release from custody on condition that the appellant does not commit an offence punishable by imprisonment for that period of 3 years.
The substituted sentence is to be served cumulatively to the activated term of 6 months' imprisonment imposed on 18 December 2019, commencing on 21 October 2019.
Serial No 7/2020
File No 3/2020
JARROD McKENNA v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
29 May 2020
I agree with Estcourt J. The sentence of three years' imprisonment was manifestly excessive in light of the nature of the appellant's offending and his circumstances.
I reach this conclusion having in mind that the activated sentence of six months' imprisonment was ordered to be served concurrently with the three year term. This order ameliorated the severity of the punishment the appellant received. The learned sentencing judge explained that by making it concurrent he was addressing totality and the appellant's youth. Ordinarily, an activated sentence would be ordered to take effect cumulatively, not concurrently with another sentence just imposed: s 27(6) of the Sentencing Act 1997. It is perhaps worth noting that if the sentences had been structured so that the sentence under appeal had been two and a half years' imprisonment, not three, and the activated term of six months' imprisonment had been cumulative, my conclusion would remain that the sentence under appeal was heavy to the point of error.
I agree with the sentencing orders proposed by Estcourt J.
File No CCA 3/2020
JARROD ANTHONY McKENNA v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
29 May 2020
The appeal and the principles
The appellant Jarrod Anthony McKenna has appealed against a sentence imposed upon him by Geason J on 18 December 2019, on the ground that the sentence is manifestly excessive. The appellant had pleaded guilty to 13 counts of stealing, two counts of burglary, and four counts of receiving stolen property. The offending occurred between 24 March 2017 and 23 June 2017 when the appellant was between 18 and 19 years old. The offending involved the stealing of motor vehicles which were then stripped and used or sold for parts. The total value of vehicles stolen was in excess of $180,000.
The defendant was sentenced to three years' imprisonment from 21 October 2019 with a non-parole period of 18 months. At the same time the learned sentencing judge dealt with a breach application made by the Crown and activated a suspended sentence of six months' imprisonment imposed by a magistrate on 15 December 2016 for the crimes of burglary and stealing. The learned sentencing judge ordered that the activated sentence be served concurrently with the sentence of three years' imprisonment he imposed, the result of which was that it was also to commence on 21 October 2019. There is no appeal against that sentencing order.
The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8], per Pearce J.
The appellant's offending
Whilst, with one exception, it was the Crown's position on the sentencing hearing that the appellant was criminally responsible for the crimes as a principal offender, it was accepted by it that the appellant was one of a larger group of up to eight people involved in the systematic theft and stripping of motor vehicles. Members of the group involved would break into vehicles, steal them and drive them to remote locations where parts were taken from them and used by the group or sold to others.
Detection of the offending involved a major police operation involving seven different police sectors, as far apart as Devonport, the Eastern Shore, Central Hobart and the Huon. The operation included the use of telephone and police surveillance and the deployment of movement activated video recording devices.
The respondent submits on this appeal, that the circumstances of the offending, as put to the learned sentencing judge, demonstrate a high level of moral culpability on the part of the appellant. It must be recalled, however, that it was submitted to the learned sentencing judge on behalf of the appellant, without demur by the Crown, that the appellant was encouraged to participate in the offending by others. Whilst he did not tell police who those others were, he did not know the hierarchy of the organisation. It was submitted, however, that he was at the bottom of that hierarchy, "a body to go along, to transport things" and "to do other people's bidding".
The respondent submits on this appeal irrespective of the appellant's "claimed role in the larger group", he obtained a significant benefit from his criminal conduct. However, the learned sentencing judge was told, without demur by the Crown, that the benefit to the appellant was limited to "a few tokens", such as some tools and other equipment and some remnants of some vehicles.
The Crown statement of facts made reference to vehicle remnants located near where the accused lived. His counsel on the sentencing hearing told the learned sentencing judge that the appellant accepted by his plea of guilty that he was in possession of those remnants but that "he certainly wasn't solely in possession of them" and that they were left there, near him, in order to "absolve others". The learned sentencing judge was asked to accept that the appellant was a "patsy". When asked by his Honour at the conclusion of the plea in mitigation whether Crown counsel had anything to raise, he did not seek to contradict anything that had been said by the appellant's counsel.
The background to the offending
The appellant commenced working as a labourer with a scaffold hire company at the age of 13, while he was in grade eight. In grade nine he left school to take up full-time work with that company. He later worked for a short period of time with the Tasmanian Cask Company at Bridgewater, but then returned to the scaffolding job. That employment continued up until the time of the appellant's arrest in August 2017. He was arrested at work and was summarily dismissed.
The background to the appellant's offending, can be traced to around mid-2016. He was then living at his family home at Elderslie and working long hours. When not working he spent most of his time at home with few, if any, outside interests. However, he began drinking alcohol to excess, and in mid-2016 he left home and moved in with a friend. That person had older friends who were visiting regularly. They were also heavy drinkers and were involved in criminal activities. As an 18 year old, the appellant fell under the influence of those men, who were all eight to ten years older than him. Drinking was a constant pastime and ultimately the appellant moved in with one of that group of men.
The learned sentencing judge was told, again, without demur by the Crown, that the group consisted ultimately of about six to eight people. Members of the group had the skills to break into motor vehicles, to break into sheds, to start motor vehicles without keys and to strip parts from them. As a young man who had only ever known scaffolding, the appellant had none of those skills, but he was encouraged to participate in the group's criminal conduct, including the burglary and stealing in December 2016 which attracted the suspended sentence activated by the learned sentencing judge.
Voluntary desistance and rehabilitation
As already noted, the last of the crimes committed by the appellant was on 23 June 2017. The learned sentencing judge was told that, almost immediately after that offence, the appellant cut his ties with the group and had no further contact with the men involved. Since then, apart from some driving offences, including evading police in November 2018 and a breach of bail offence on 20 December 2017, the appellant has desisted from any criminal conduct.
Apart from those driving offences, he has resumed his former law-abiding life. As noted already, he lost his employment when he was arrested at work in August 2017. However, he was only unemployed for about six to eight months. He obtained another position with a business known as Instant Scaffolds Tasmania and, notably, he was given a reference by his manager, which described him as being hardworking and reliable, and in charge of a crew of three other men.
The learned sentencing judge was also told that prior to appellant's arrest, he met and commenced a relationship with a young woman and in April 2018, they enjoyed the birth of their first child. His partner has a child from a previous relationship. At the beginning of 2019 they were able to secure their own accommodation for the first time. Since the commencement of their relationship and the birth of their child, the appellant committed himself to family life and to his employment and has continued to stay away from those who had influenced him in 2016 and 2017.
The appellant expressed his remorse to the Court for his involvement in the criminal enterprise. He described himself "as being dumb", and, while he feels that he was led astray by others, he fully accepts responsibility for his own conduct.
Discussion
From the foregoing, the appellant can be seen as being presented to the learned sentencing judge, without demur by the Crown, as a youthful offender, who played a minor role in a large protracted and sophisticated criminal enterprise, from which he benefited little and from which he voluntarily desisted and then substantially rehabilitated himself. Moreover, albeit at a late stage, the appellant pleaded guilty to the charges against him and expressed remorse for his conduct, which was not challenged.
The sentencing principles as to youthful offenders were restated in TAP v Tasmania [2014] TASCCA 5, by Porter J, with whom Blow CJ and Wood J agreed. His Honour said at [24] and [26]-[27]:
"[24] …The principles are that the rehabilitation of the offender is always an important, if not the dominant, consideration, and that any sentence should be tailored with greater emphasis on the welfare of the youth; the emphasis on rehabilitation is consistent with the broader sentencing goal of community protection: LWR v Lusted (2009) 19 Tas R 233 at [26] citing JA (A child) v State of Western Australia [2008] WASCA 70 at [29]-[30] …
[26] It is true that the justification for the principles governing the sentencing of youthful offenders is that such offenders are not able to appreciate the nature and extent of their criminality. They are more likely to make ill-considered and immature decisions. At the same time, counsel for the appellant accepts, by reference to R v Tran (2002) 4 VR 457 at [14], that the importance of rehabilitation of a youthful offender is usually far more important than general deterrence, but that there are cases in which just punishment and general deterrence become at least equally important.
[27] As to the moderation of the emphasis given to rehabilitation, and the corresponding increase in the prominence given to general deterrence and retribution in cases of serious crime, I refer also to the detailed discussions by McLellan CJ at CL in R v Carroll [2008] NSWCCA 218 at [8], and by Redlich JA in Azzopardi v The Queen (2011) 35 VR 43 at 53–57 [30]-[44]. There is no doubt at all that, in short, where the level of seriousness in the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth."
In Director of Public Prosecutions v J S P [2020] TASCCA 3, Pearce J, with whom Wood J agreed, said at [109]:
"[109] I respectfully differ from Estcourt J in one other important respect. I agree that the seriousness of the crime reduced the mitigation which arose from the respondent's youth, but, in my view, youth remained a sentencing factor of some weight. One reason that the law generally allows lenience to young offenders is they, being immature, are 'more prone to ill-considered or rash decisions': R v McGaffin [2010] SASCFC 22, 206 A Crim R 188 at 210, [69]. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult' and may not fully appreciate the nature, seriousness and consequences of their criminal conduct: Director of Public Prosecutions v TY (No 3) [2007] VSC 489, 18 VR 241 at 242, [43]. I think that those factors had a part to play here. The sentencing factors of general deterrence directed to young men for crimes of this nature and punishment are competing countervailing considerations with allowance for the immaturity and lack of judgment of a young man. That is not to say however that the latter factors are to be given no weight."
It is trite to say that sentencing judges must be afforded a very wide latitude and it is not for this Court to tinker with sentences. However, with the foregoing principles in mind, and despite the appellant's prior convictions for burglary and stealing, and despite the order that the activated suspended sentence be served concurrently, error is plainly apparent here in my view. A sentence of three years' imprisonment, with no part of it suspended, must, in my view, be regarded as manifestly excessive, notwithstanding the generous provision of parole set at half of the head sentence.
Where, as in this case, general deterrence, punishment or denunciation are less prominent as sentencing factors, the utility of a suspended sentence as a sentencing modality becomes readily apparent. As Evans J stated in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 at [11]-[12]:
"[11] Whilst suspended sentences are a most valuable sentencing option (the Law Reform Institute recommended their retention), their utility is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation, as the degree to which a sentence addresses these considerations depends largely upon the community's attitude to it.
[12] In Latham [2000] WASCA 338; (2001) 117 A Crim R 74, Parker J, agreed with by Wallwork and McKechnie JJ, at 82 dealt with a submission that in that case a suspended term of imprisonment would have served the needs of deterrence. After observing that a suspended term of imprisonment was the second most serious sentencing option available to the court in Western Australia, his Honour said that:
'[31] ... the effect of such a sentence is the immediate release of the offender into the community without supervision or restriction and, unless the offender commits a further offence, [breaches a condition of the suspension of the sentence in Tasmania,] ... during the suspension period, the offender is discharged entirely from the sentence at the end of the suspension period ... In most cases a suspended sentence involves neither custodial nor coercive consequences.
[32]It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately ...
[33] A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong'." [Emphasis added.]
In my view, in all of the circumstances of this case, an appropriate sentence for the crimes to which the appellant pleaded guilty would have been a wholly or partially suspended sentence, perhaps coupled with a community correction order.
Disposition
For the foregoing reasons, I would allow the appeal.
As already noted, the appellant was sentenced to three years' imprisonment from 21 October 2019 with a non-parole period of 18 months. At the same time the learned sentencing judge dealt with a breach application made by the Crown, and activated a suspended sentence of six months' imprisonment imposed by a magistrate on 15 December 2016 for the crimes of burglary and stealing. The learned sentencing judge ordered that the activated sentence be served concurrently with the sentence of three years' imprisonment he imposed, the result of which was that it was also to commence on 21 October 2019. There is no appeal against that sentencing order.
I would set aside the sentence of three years' imprisonment with a non-parole period of 18 months and substitute therefor a sentence of 18 months' imprisonment with 12 months of that term suspended on condition that the appellant commit no offence punishable by imprisonment for a period of three years.
I would order that the custodial part of the term of 18 months be served cumulatively to the activated six month term. The combined result is that the appellant is liable to serve a total term of two years from 21 October 2019, with 12 months of that term suspended for three years from his release from custody.
File No 3/2020
JARROD McKENNA v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
29 May 2020
I agree that the appeal should be allowed for the reasons given by Estcourt J. I agree with the sentencing orders his Honour proposes. I also agree with the additional comments of Wood J.
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