Mongrag v The Queen
[2018] VSCA 105
•27 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2018 0060 | |
| NEOK MONGRAG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 April 2018 |
| DATE OF JUDGMENT: | 27 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 105 |
| JUDGMENT APPEALED FROM: | DPP v Mongrag [2018] VCC 131 (Judge Grant) |
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CRIMINAL LAW — Appeal — Sentence — Attempted aggravated burglary — Youthful offender — Sentence of two years and four months’ imprisonment with non-parole period of 16 months — Whether judge erred in failing to have regard to applicant’s evidence on the plea — Whether error resulting from author of pre-sentence report failing to speak to applicant — Whether sentence manifestly excessive — Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue + George Lawyers |
| For the Respondent | Mr J C J McWilliams | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA
PRIEST JA
KYROU JA:
On 17 November 2017, the applicant, now aged 19 years,[1] pleaded guilty in the County Court to one charge of attempted aggravated burglary (charge 1),[2] and one charge of theft (charge 2),[3] and to two summary offences of committing an indictable offence whilst on bail[4] and contravening a conduct condition of bail.[5]
[1]His date of birth is 6 November 1998.
[2]Crimes Act 1958, ss 77 and 321M. The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[4]Bail Act 1977, s 30B. The maximum penalty is 30 penalty units or three months’ imprisonment.
[5]Bail Act 1977, s 30A. The maximum penalty is 30 penalty units or three months’ imprisonment.
Following a plea, on 1 February 2018 the judge sentenced the applicant to a total effective sentence of two years and four months’ imprisonment, with a non-parole period of one year and four months, according to the following table:
Charge Offence Sentence Cumulation 1 Attempted Aggravated Burglary 2 years and 4 months’ imprisonment Base 2 Theft 1 month imprisonment Nil Related summary offence 1 Commit Indictable Offence Whilst on Bail 1 month imprisonment Nil 2 Contravene a Conduct Condition of Bail 1 month imprisonment Nil Total Effective Sentence: 2 years and 4 months’ imprisonment Non-Parole Period: 1 year and 4 months Pre-Sentence detention declared: 307 days Section 6AAA statement: 3 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months
On 8 December 2017, a co-offender, Adhel Adhel, was sentenced to ten months’ imprisonment, and a community correction order (‘CCO’) of 18 months’ duration (with conditions), according to the following table:
Charge Offence Sentence Cumulation 1 Attempted Aggravated Burglary 10 months’ imprisonment with 18 month CCO Base Related summary offence 1 Commit Indictable Offence Whilst on Bail 1 month imprisonment Nil 56 Deal Property Suspected Proceed of Crime 1 month imprisonment Nil Total Effective Sentence: 10 months’ imprisonment with 18 month CCO Pre-Sentence detention declared: 252 days Section 6AAA statement: 2 years and 6 months’ imprisonment with a non-parole period of 18 months
The applicant sought leave to appeal against the sentence imposed upon him on four grounds[6] as follows:
[6]In the course of the hearing in this Court, the applicant was granted leave to add ground 4.
1. The sentencing discretion miscarried because the sentencing judge failed to have regard — in determining whether to impose a Youth Justice Centre Order or term of imprisonment — to the sworn evidence of the Applicant as to matters that were relevant to the exercise of that sentencing discretion.
PARTICULARS
(i)Evidence of the Applicant on the plea that he had been ‘stood over’ and had been intimidated while on remand in adult custody;
(ii)Evidence of his concerns that there were limited educational opportunities offered in adult custody and his wish to complete his education in programs delivered at a Youth Justice Centre; and
(iii)Evidence that he had been incorrectly identified as being involved in certain incidents in custody but was later cleared of involvement.
2. The sentencing discretion miscarried because the ‘assessment’ of the Applicant for a Youth Justice Centre Order was performed without the author of the suitability report interviewing the Applicant.
3. The sentence imposed on the charge of attempted aggravated burglary is manifestly excessive.
PARTICULARS
(a)Early plea of guilty;
(b)18 years of age at the time of the offence;
(c)First time in adult custody;
(d)Adverse experience in adult custody;
(e)Significant family support;
(f)Attempts to reconnect with education and employment opportunities prior to being remanded in custody; and
(g)Youth Justice unable to assist him in adult custody.
4. The sentencing judge erred in failing to provide adequate sentencing reasons.
PARTICULARS
The Reasons for Sentence did not refer to the sworn evidence given by the applicant.
In our view, for the reasons that follow, leave to appeal should be refused.
The offending
The circumstances of the attempted aggravated burglary were extremely serious. They were described in the Prosecution Opening (Plea Exhibit A) as follows:
Background
1. The offenders are Adhel Adhel, born on 30 July 1997, and [the applicant], born on 6 November 1998. They are currently aged 20 and 19 respectively. At the time of the offending Adhel was 19 years of age and [the applicant] was 18.
2. The offenders have each entered a plea of guilty to one charge of attempted aggravated burglary. Additionally, [the applicant] has entered a plea of guilty to one charge of theft. The offending occurred in the early hours of 31 March 2017.
3. There are four additional offenders in relation to the attempted aggravated burglary. Three have been dealt with in the Children’s Court jurisdiction, and the fourth offender has not been identified.
Circumstances of the offending
4. At about 1:40am on 31 March 2017 a white Lexus sedan, registration AKF 507, was stolen during an aggravated burglary in Flinders Place, Caroline Springs.
5. About an hour later at 2:37am the white Lexus pulled up in front of 8 Binalong Court St Albans. CCTV from the address depicts the incident which then unfolds.
6. Six males, which included Adhel and [the applicant], got out of the Lexus and approached the house. They were armed with various items including sticks, bricks and wooden stakes.
7. [The applicant] was armed with a brick in one hand and a wooden stake in the other. Adhel was armed with a wooden stick. [The applicant] threw the brick at a window beside the front door, which smashed. All six males attempted to get into the house by smashing windows and banging and kicking at the front door (charge 1: Adhel and [the applicant] — attempted aggravated burglary).
8. The residents of the house, Teyfik and Sevinch Karakurt and their son Mehmet Karakurt, were all asleep. They were woken by the sound of smashing glass and banging on the front door. Teyfik Karakurt went to the front door and saw the window had been smashed. He stood against the inside of the front door, trying to prevent the offenders from getting into the house.
9. Mehmet Karakurt saw his father leaning against the front door. He grabbed a metal pole and looked outside. He looked one of the offenders in the eyes and said that he was going to ‘fuck him up’.
10. Mehmet and Teyfik Karakurt were both showered with broken glass whilst near the front door.
11. Sevinch Karakurt also came towards the front of the house after waking up. She saw her husband and son holding the front door. She went to another window to look outside and observed four males. One of the males saw her and came towards the window she was standing at, smashing it with a stick. Sevinch Karakurt closed the curtains and moved away from the window, as she was scared.
12. The attempted entry into the house by the six offenders lasted just over one minute. Five of the six offenders ran from the driveway, leaving [the applicant] at the area near the front door. [The applicant] then turned around, walked behind a parked van and retrieved another brick. [The applicant] threw this brick towards the front door area and then ran away ...
13. All six offenders left in the stolen Lexus.
14. Three windows were broken during the attempted aggravated burglary. A small cabinet was also damaged by one of the bricks thrown through a window ...
15. At 4:40am the white Lexus entered a petrol station at 785 Heidelberg Road Alphington. [The applicant] got out of the front passenger seat, entered the store and pre-paid for $15 worth of petrol. [The applicant] then filled the car with $19 worth of petrol before the attendant stopped the bowser. [The applicant] got back into the front passenger seat without paying for the additional petrol and the Lexus drove off (charge 2: [the applicant] — theft).
16. Shortly after midday on 31 March 2017 a search warrant was executed at Adhel’s residence, 1 Jester Court, Kings Park. Five males were arrested in the house, including [the applicant] and Adhel. A sixth male was arrested in a nearby street.
17. [The applicant] and Adhel were arrested wearing the same clothing as seen in the CCTV footage from the attempted aggravated burglary approximately ten hours earlier.
18. The other males arrested were also wearing the same clothing as depicted in the CCTV footage.
19. Three laptops were seized at Adhel’s house, suspected of being proceeds of crime (related summary offence: deal with property suspected of being proceeds of crime — Adhel).
Bail offences
20. On 30 January 2017 Adhel entered an undertaking of bail at the Sunshine Magistrates Court, to appear on 12 April 2017. The offence of attempted aggravated burglary was committed whilst subject to the undertaking of bail (related summary offence: commit indictable offence whilst on bail — Adhel).
21. [The applicant] was subject to two separate undertakings of bail when he committed the offences of attempted aggravated burglary and theft. His bail included a condition that he not leave his place of residence between the hours of 9pm and 6am unless in the company of a parent. Both the offences were committed during [the applicant’s] curfew hours (related summary offences: commit indictable offence whilst on bail and contravene a conduct condition of bail — [the applicant]).
Record of Interview
22. Adhel and [the applicant] were both interviewed at the Sunshine Police Station on 31 March 2017. Both did not comment in relation to the offending.
23. Adhel and [the applicant] were charged and remanded on 31 March 2017.
…
The applicant’s personal circumstances
As has been mentioned, the applicant was 18 at the time of offending, and is now aged 19.
The applicant was born in the south of Sudan in 1997, his family fleeing to Egypt in 2004. After a year there, the family came to Australia. The applicant started school at St Albans Primary School, and, despite his lack of English, was regarded as a good student. He completed Grades 3 to 6 at Resurrection Primary School in Kings Park, Years 7 to 10 at St Albans Catholic Regional College, and Year 11 and the first term of Year 12 at Sydenham Catholic Regional College. It appears that up to that point the applicant had no behavioural issues.
Following his involvement in a fight outside school grounds when he was in Year 12, the applicant was expelled from school. Despite his father’s best efforts to enrol him in another school, he was unable to continue his education. The applicant’s expulsion corresponded with a period during which he disengaged from sporting activities and from participation at his local church. On the plea, his counsel submitted that these factors led to the applicant’s association with a negative peer group, and his offending escalated.
The applicant’s first experience of youth remand was in May 2016, when he was 17 years old. He was released on supervised bail on 16 June 2016, this being his first period of supervision by Youth Justice. He committed further offences, however, and was returned to custody on 8 July 2016. In the Children’s Court on 7 September 2016, the applicant was released on probation on charges of aggravated burglary; theft of a motor vehicle; affray; robbery; theft and other dishonesty offences; recklessly causing injury; and committing an indictable offence whilst on bail. He received a further probation order from the Children’s Court on 4 October 2016 for attempted robbery. He was once more returned to custody on 13 October 2016. Four days later, on 17 October 2016, he was one of the young offenders who accessed the roof space of a building in the course of a riot at the Parkville Youth Justice Centre, and was one of the offenders who caused damage at the centre. Notwithstanding that fact, he was again released on supervised bail on 11 November 2016. He committed the current offences on 31 March 2017, whilst on that bail, and whilst on probation, and has been in custody in an adult facility since that time. To complete the constellation of his contact with courts, the applicant was placed on a Youth Supervision Order by the Children’s Court on 31 August 2017, for offences arising out of his part in the riot at the Parkville Youth Justice Centre.
Ground 2 — The pre-sentence report
Counsel for the applicant put ground 2 — which asserts that the sentencing discretion miscarried because the assessment of the applicant’s suitability for a Youth Justice Centre Order (‘YJC’) was performed without the author of the pre-sentence report interviewing the applicant — at the forefront of his submissions.
The backdrop to this ground is that the sentencing judge, on 17 November 2017, requested that the applicant be assessed for his suitability for YJC detention. A resulting pre-sentence report, prepared by Ms Donna Ascher, Senior Court Advice Officer for Youth Justice, dated 23 November 2017, assessed the applicant as unsuitable.[7]
[7]See Sentencing Act 1991, s 8A(2).
As is contemplated by s 8D of the Sentencing Act 1991, aspects of the unfavourable pre-sentence report were disputed by the defence. Hence, Ms Ascher gave sworn evidence before the sentencing judge on 1 February 2018, in the course of which she was cross-examined at length[8] by the applicant’s counsel.
[8]The cross-examination occupies 44 pages of transcript.
In the written case, counsel for the applicant submitted that the cross-examination of Ms Ascher established the following:
· first, after the judge ordered preparation of the report, Ms Ascher did not speak to the applicant before its completion;
· secondly, Ms Ascher had seen the applicant twice in the previous nine months that he had been on remand, the last occasion being in early November 2017;
· thirdly, Ms Ascher made only one attempt to contact the applicant’s parents, leaving a message on their telephone;
· fourthly, Ms Ascher confirmed that she would not be able to provide the applicant with any support in adult custody;
· fifthly, although she was familiar with the contents of the applicant’s Youth Justice file, Ms Ascher was not able to comment on some of it, since it was not within her personal knowledge;
· sixthly, Ms Ascher gave evidence that she did not think it was important in preparing the pre-sentence report to give the applicant an opportunity to respond to the allegations made against him in the case notes on his file; and
· seventhly, the applicant had made the most of his opportunities to further his education at Parkville Youth Justice Centre.
By s 32(1) of the Sentencing Act 1991, if a sentence ‘involving confinement is justified in respect of a young offender’ — that is, a person ‘under the age of 21 years’ at the time of sentence[9] — a sentencing court may sentence the young offender to YJC if it has received a pre-sentence report and it believes that ‘there are reasonable prospects for the rehabilitation of the young offender’, or that the young offender ‘is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison’. And in determining whether to sentence the young offender to YJC, s 32(2) requires the court to have regard to the nature of the offence, and the age, character and past history of the young offender.
[9]See the definition of young offender in Sentencing Act 1991, s 3(1).
Acknowledging that the Sentencing Act 1991 does not require the author of a pre-sentence report to speak to the person who is the subject of the report — s 8A(5) of the Act providing that the ‘author of a pre-sentence report must conduct any investigation that he or she thinks appropriate or that is directed by the court’ — counsel for the applicant submitted that it would be expected that the author would indeed speak to the person who is its subject. He relied on a passage from a leading text:[10]
The manner in which a pre-sentence report is compiled depends on the exigencies of each individual case. At a minimum, reports are based on an interview with an offender, but usually also rely heavily on particulars gleaned from interviews with others.
[10]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) 177 [2.215].
Counsel for the applicant contended that there had been a ‘failure of process’, since Ms Ascher neither interviewed the applicant nor his parents. Moreover, Ms Ascher appeared to have relied heavily on documents and opinions that were not her own, in circumstances where the accuracy of the content of some of the documents and opinions was disputed (and inevitably involved a degree of second-hand or third-hand hearsay). This meant that the exercise of the sentencing discretion possessed ‘an inherent flaw that deprived the sentencing judge of a key epistemological source of information’. Without that information the pre-sentence report was ‘flawed and inadequate’, the ‘epistemic inadequacy’ having had an impact on the judge’s exercise of discretion, which was ‘was based on partial, inadequate and incomplete information’.
There is no merit in ground 2.
Had there been a want of procedural fairness in the manner in which the pre-sentence report was prepared, there were two courses open to the applicant’s counsel to redress that defect. First, counsel could have asked the judge to order a further pre-sentence report, free from the suggested deficiencies attending the initial report. She did not take this course. Secondly, counsel could have addressed the lack of procedural fairness by cross-examining the report’s author, and by adducing further evidence. She adopted this course.
As we have said, Ms Ascher gave evidence and was extensively cross-examined. Any defect in her methodology, and any omissions from her report, were thus readily capable of being exposed. Moreover, as we will discuss in a little more detail when considering grounds 1 and 4, the applicant also gave evidence, in the course of which he disputed certain aspects of the report. Thus, any deficiencies in the pre-sentence report were adequately disclosed. They were then capable of being the subject of further evidence, and further submissions by the applicant’s counsel.
Importantly, however, the judge based his rejection of the notion that YJC was appropriate, not on any unsubstantiated opinion or disputed material in the report, but upon the applicant’s history and the nature of his offending, none of which was challenged. Thus, in his sentencing remarks, the judge said:[11]
The report from Ms Ascher from Youth Justice indicates that your first experience of youth remand was in May 2016, when you were 17 years old. You were released on supervised bail on 16 June 2016. This was your first period of supervision by Youth Justice. You committed further offences, and you were returned to custody on 8 July 2016.
On 7 September 2016, you were released on probation. You received a further probation order on 4 October 2016. You returned to custody on 13 October 2016.
On 17 October 2016, you were one of the young offenders who accessed the roof space of the Parkville Centre, and one of the offenders who caused damage at the centre.
You were released again on supervised bail on 11 November 2016. You committed the current offences whilst on that bail, and whilst on probation.
You have shown a remarkable unwillingness to comply with court orders; bail orders and probation orders have failed to stop your offending.
Given this history and the nature of the current offending, it is not surprising that an assessment from Youth Justice finds you unsuitable for a sentence of detention in [YJC].
[11]Emphasis added.
Thus, even had there been some ‘failure of process’ in the preparation of the report — which we do not accept — the dictates of procedural fairness were satisfied by the course adopted by the sentencing judge. The judge permitted the contents of the report to be challenged through the cross-examination of its author, and through the applicant’s own evidence on disputed matters. This was the course requested by the applicant’s counsel on the plea.
Grounds 1 and 4 — Failure to have regard to the applicant’s sworn evidence and failure to provide adequate reasons
It is convenient to consider grounds 1 and 4 together.
As earlier mentioned, because there was dispute about some of the contents of the pre-sentence report, on 1 February 2018 counsel for the applicant cross-examined Ms Ascher, and, adopting a somewhat unusual course, also called the applicant to give evidence.
In his evidence, the applicant swore that he had been intimidated and ‘stood over’ whilst on remand, and that he felt scared in adult custody. He gave evidence of his desire to return to YJC, because there were better opportunities for education and he felt he would be treated better than he had been in adult custody. The applicant also gave evidence about alleged assaults documented in the pre-sentence report, which allegedly had occurred whilst he was at Port Phillip Prison. He said he had been incorrectly identified in a number of incidents and later had been cleared of any involvement. The applicant denied standing over people and said that it was he, in fact, who had been stood over. In cross-examination by the prosecutor, the applicant agreed that he had been transferred from Port Phillip Prison to the Metropolitan Remand Centre as a result of a ‘group assault’ in the Swallow Unit of the prison (although he denied that he had been involved in the incident).
Quite remarkably, however, despite the applicant having given sworn evidence on the plea, the judge made no direct reference to the applicant’s evidence when imposing sentence.[12]
[12]We note that in his sentencing remarks the judge observed: ‘You have said over and over again, that you understand the importance of education in furthering your future’. In his evidence, the applicant said that he loved education because ‘that’s the only way you can move [forward] in life’. It is far from plain, however, that the judge’s observation was an allusion to the applicant’s evidence.
Under cover of the first ground, it was submitted that the judge’s failure to refer to the applicant’s evidence — the ground claimed a failure ‘to have regard’ to it — caused the sentencing discretion to miscarry. Ground 4 attacked the adequacy of the sentencing reasons. Given that the judge failed to make any reference to it, it could be inferred, so it was submitted, that the judge failed to take the applicant’s evidence into account. Thus, it was submitted, the judge failed to consider the following material and relevant considerations:
· first, the applicant’s evidence of his adverse experiences in adult custody was directly relevant to determining whether the applicant, a ‘young offender’, should be confined in an adult prison or YJC;
· secondly, his evidence of his desire to complete his education in YJC was also relevant to the exercise of the sentencing discretion to either impose a term of imprisonment in an adult prison or YJC (his desire to complete his education also being relevant to his prospects of rehabilitation); and
· thirdly, the issue of his involvement in other alleged incidents in custody was a disputed sentencing fact that required adjudication.
In response, counsel for the respondent submitted that the ‘inescapable inference’ is that the judge’s findings for the purposes of sentence were made cognisant of the applicant’s evidence. The judge sentenced the applicant on the same day that he gave evidence. Following the applicant’s evidence, his counsel and the sentencing judge discussed at length the applicant’s evidence, issues arising from it, aspects of the plea generally and the ultimate disposition. Thus, the respondent’s counsel submitted, it is unlikely that the judge had, in such a short time, overlooked the gravamen of the applicant’s evidence. The judge had, it was submitted, indicated a strong preliminary view that the applicant was not suitable for YJC, and it might be inferred that the applicant’s evidence had not persuaded the judge to adopt a different point of view.
In our view, it is unlikely that the judge had overlooked the applicant’s evidence when he came to impose sentence, given that the judge sentenced the applicant the same day that the evidence was given. And as the judge remarked when imposing sentence, the applicant was not a suitable candidate for YJC due to his history ‘and the nature of the current offending’.
That said, the absence of any reference to the applicant’s evidence was an undesirable aspect of the judge’s sentencing remarks, one which is not to be encouraged. Ordinarily, it will be the duty of a sentencing judge to make plain in his or her sentencing reasons the manner in which evidence such as the applicant’s has been treated; and in particular, whether the judge has accepted it or rejected it (wholly or partly), reasons for that acceptance or rejection being given.
In the circumstances of this case, however, the judge’s failure to refer to his evidence cannot avail the applicant, since, even if error be assumed, there is no reasonable prospect that this Court would impose a less severe sentence.[13] Thus, even were it to be thought that the errors advanced under cover of grounds 1 and 4 would justify a grant of leave to appeal, to grant such leave would be futile because the appeal would have to be dismissed.[14]
[13]Criminal Procedure Act 2009, ss 280(1) and (2).
[14]Criminal Procedure Act 2009, ss 281(1) and (2).
Ground 3 — Claimed manifestly excessive sentence
In contending that the sentence on the charge of attempted aggravated burglary was manifestly excessive, counsel for the applicant relied on each of the considerations embodied in the particulars subjoined to ground 3. The applicant’s youth, in particular, was pressed with some vigour. Moreover, counsel for the applicant stressed that the applicant received the most severe sentence of the six co-offenders, several of his co-offenders having been dealt with in the Children’s Court.
On the other hand, counsel for the respondent submitted that the applicant’s was ‘a particularly merciful sentence’. We agree.
The applicant, in the dead of night, in the company of several males armed with makeshift weapons, mounted a violent and terrifying attack on the home of the innocent victims — one of whom in her victim impact statement described waking to a ‘nightmare’ in which she thought she and the other occupants would lose their lives — so as to steal car keys. It was breathtaking in its brazenness, and in its arrogant disregard for the victims’ right to feel safe in their home.
Conduct such as the applicant’s cannot be tolerated. It must be denounced in the strongest terms. Aggravated burglaries — the applicant’s crime was, of course, an attempt — which involve confrontation and violence must be viewed very seriously.[15] Furthermore, the applicant’s lamentable history shows that he needs specifically to be deterred from repetition of his offending. As Ms Ascher reported:
[The applicant] has previously been found guilty of aggravated burglary and robberies in relation to home invasions whilst he is subject to Children’s Court orders. [The applicant] has now found himself in the adult jurisdictions with similar charges and the same modus operandi.
[15]See DPP v Meyers (2014) 44 VR 486, 489 [6]; Hogarth v The Queen (2012) 37 VR 658, 673 [56].
Moreover, general deterrence is an important aspect in sentencing the applicant for his appalling offending. Other like-minded individuals need to know that similar conduct will attract severe punishment.
As we have said, counsel for the applicant placed significant reliance on the applicant’s youth as a mitigating feature. Cases such as Mills[16] recognise the primacy of youth as a sentencing consideration. Several general propositions, later applied in a number of cases, were stated in Mills:[17]
i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. …
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
[16]R v Mills [1998] 4 VR 235 (‘Mills’).
[17]Ibid, 241 (Batt JA, with whom Phillips CJ and Charles JA agreed).
In cases such as the present, however, which involve extremely serious offending, the weight to be attached to youth as a sentencing factor is significantly reduced. So much was recently made clear in Hoang:[18]
In this regard, it must be remembered that the propositions in Mills are intended to be general only, the considerations underlying the primacy of youth as a factor in sentencing being: first, the offending may have been the product of youthful immaturity, reflected in the offender’s lack of insight or self-control; secondly, a youthful offender may be more amenable to rehabilitation than a more mature offender; and, thirdly, incarceration in an adult prison is calculated to impede, rather than advance, a youthful offender’s rehabilitation.[19] As the degree of seriousness of relevant criminal conduct increases, however, the mitigating effects of an offender’s youth will decrease. Hence, generally speaking, where the degree of criminality of an offence requires deterrence, denunciation, just punishment and protection of the community to assume prominence in the sentencing equation, the weight to be attached to youth is reduced correspondingly (although not wholly extinguished).[20]
[18]Hoang v The Queen [2018] VSCA 86, [37] (Priest and McLeish JJA).
[19]Mills, 241; Azzopardi v The Queen (2011) 35 VR 43, 53–5 [34]–[36] (Redlich JA) (‘Azzopardi’).
[20]Azzopardi, 57 [44].
The applicant’s offending was premeditated and calculated. It was not the product of a spontaneous or rash decision, born of a youthful lack of insight or self-control. It was not driven by immaturity. It was purposeful and cold-blooded.
In sentencing the applicant, the judge addressed the issue of his youth:
You are 19 years old. You were 18 at the time you offended. You are a young offender. As a general rule, the paramount sentencing consideration for the young offender is rehabilitation, however, in your case, the emphasis on rehabilitation is diminished to an extent by two matters. First, the serious nature of the offending, and second, your past history of relevant serious offending.
The judge also observed (at the risk of some repetition):
In balancing the various sentencing objectives, I am required to consider your prospects for rehabilitation; I am guarded about your prospects. Whilst you are still young and capable of reformation, you have shown an unwillingness to change your behaviour. This is notwithstanding your obvious intelligence and your strong family support.
The fact that this offending occurs in breach of two probation orders and supervised bail orders, is indicative of a dismissive attitude to court orders and Youth Justice support.
The fact that this offending occurred in contravention of a curfew condition of bail, is further evidence of your disdain for court orders.
Because of your age, I did have you assessed as to your suitability to undergo a sentence of detention at a Youth Justice Centre. When I did so, I did not fully appreciate the extent of your previous involvement with Youth Justice, or the extent of your involvement in the incident at Parkville on 17 October 2016.
I have already referred to the fact that the assessment is unfavourable. Given your past failures to comply with Youth Justice orders; such an assessment is as I have already said, entirely understandable.
General and specific deterrence, punishment, denunciation and community protection, all needed to be adequately reflected in the sentence imposed on the applicant. Balancing all relevant factors, we are far from persuaded that the impugned sentence is manifestly excessive. Indeed, a significantly more severe sentence was well-justified. The sentence is, in our opinion, very merciful, if not inadequate. There is no reasonable prospect that this Court would impose a less severe sentence.
Conclusion
The application for leave to appeal against sentence must be refused.
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