Morton v The King
[2023] VSCA 175
•3 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0201 |
| RICHARD MORTON | Applicant |
| V | |
| THE KING | Respondent |
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| JUDGES: | Walker JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 June 2023 |
| DATE OF JUDGMENT: | 3 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 175 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1159 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to attempted kidnapping, threat to kill, causing injury recklessly – Total effective sentence of 3 years, 4 months’ imprisonment – Whether manifestly excessive – Delay of 10 years between offending and sentence – Whether sufficient weight given to change in circumstances, rehabilitative perspectives, academic achievements, youth, criminal history and employment prospects – Proper exercise of sentencing discretion – Sentence within range – No error identified – Extension of time in which to apply for leave to appeal sentence refused.
R v Mills [1998] 4 VR 235, Tones v The Queen [2017] VSCA 118, Azzopardi v The Queen (2011) 35 VR 43, R v Boland (2007) 17 VR 300 discussed. Longley v The Queen[2021] VSCA 288 applied.
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| Counsel | |||
| Applicant: | Mr H Lewis | ||
| Respondent: | Ms A Moran | ||
Solicitors | |||
| Applicant: | Slink & Keating | ||
| Respondent: | Ms R Verdon, Solicitor for Public Prosecutions | ||
WALKER JA:
In January 2022 the applicant pleaded guilty to the following charges:
(a)make threat to kill, contrary to s 20 of the Crimes Act 1958;
(b)attempted kidnapping, contrary to s 321M of the Crimes Act; and
(c)causing injury recklessly, contrary to s 18 of the Crimes Act.
The three charges arose from a single incident. One evening in October 2012 a thirteen year old girl, Tiahna McLachlan, was walking home from a friend’s house. It was around 9.00pm and it was dark. Her route home would take her through a nearby park. As Tiahna was walking along the street, she noticed a man — the applicant — standing on the other side of the road, staring at her. She kept walking and entered the park. After she had entered the park, she noticed a shadow behind her and turned around. She saw the applicant running towards her. He then grabbed her and put his hand across her face. He said to her ‘If you scream I’ll kill you’. Tiahna screamed anyway, and yelled ‘Campbell’ and ‘Shane’ (the names of her mother’s partner and of her next-door neighbour). She bit the applicant’s hand, pulled out some of his hair, and kneed him in the leg. She managed to get free and then ran off, dropping the hair as she ran. She made it home, and told Campbell Haack, her mother’s partner, what had happened. He took his dog and went to the park, but could not see anyone. While he was gone, Tiahna’s mother, Susan Darcy, got home. Tiahna told her what had happened, and Susan noticed some swelling around Tiahna’s lips. Susan then called the police. Police searched the area of the park where the events had occurred, and found a clump of hair.
Tiahna was assessed at the Monash Medical Centre, where it was found that her upper lip was red and swollen and had a small abrasion, her lower lip was swollen and she had four small abrasions on her neck. These injuries could have been ‘self-inflicted’ in the course of an attempt to remove the applicant’s hand from her mouth.
The applicant was not identified as the perpetrator of the attack on Tiahna until late 2017, when his DNA was matched with the hair found in the park and with DNA that had been found on Tiahna’s cheek. In early 2018 he was charged with three offences set out above. He was arrested in March 2018. He initially denied committing the offences. A committal was held in November 2018. In January 2020 the applicant admitted he was the alleged offender, but put in issue whether he attempted to kidnap Tiahna, and whether her injuries were caused intentionally or recklessly. His trial was delayed by reason of the COVID-19 pandemic. He later pleaded guilty to each of the three charges.
At the time of the offending, the applicant was 21; by the time he came to be sentenced, he was 31 years of age. Following a plea, the applicant was sentenced as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
Indictment J10711759.1 1 Make Threat to Kill
(contrary to s 20 of the Crimes Act 1958)
10 years 9 months 3 months 2 Attempted Kidnapping
(contrary to s 321M of the Crimes Act and common law)
20 years 3 years Base 3 Causing Injury Recklessly
(contrary to s 18 of the Crimes Act 1958)
5 years 3 months 1 month Total Effective Sentence: 3 years, 4 months’ imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: Nil Section 6AAA Statement: Total Effective Sentence: 5 years
Non Parole-Period: 3 years
The applicant now seeks leave to appeal against sentence on a single ground, namely that the sentence imposed was manifestly excessive. He also seeks an extension of time of 113 days.
I would refuse the application for an extension of time on the basis that the proposed ground of appeal has no prospects of success.
Extension of time
The principles applicable to an application for an extension of time are uncontroversial and were summarised by this Court in Madafferi v The Queen.[1] In particular, it is necessary to consider both the reasons for the delay and the prospects of success of the application for leave to appeal. I also observe that this Court has recently had occasion to stress the importance of compliance with the time limits imposed in relation to applications for leave to appeal, and the necessity for an application for leave to provide an adequate explanation for the delay. As this Court said in Longley v The Queen:
Where a time limit for the filing of court documents is not met and an application is made for an extension of time, a legal practitioner who draws or swears an affidavit in support of the application must ensure that the affidavit contains a frank and thorough explanation for the delay. Such an explanation is required to assist the court to determine who is responsible for the delay and whether there is a satisfactory explanation for it.[2]
[1][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[2][2021] VSCA 288, [11]–[13] (Priest, Kyrou and T Forrest JJA). See also Bolton (a pseudonym) v The Queen[2021] VSCA 237, [21]–[22] (Kyrou and Kennedy JJA); Ali v The Queen[2022] VSCA 31, [18], [20]–[22] (T Forrest, Emerton and Walker JJA); Cavanaugh (a pseudonym) v The Queen[2021] VSCA 347, [18]–[19] (Kaye JA, Maxwell P agreeing at [2], Walker JA agreeing at [204]); Landale (a pseudonym) v The Queen [2022] VSCA 121, [8] (Kyrou, T Forrest and Walker JJA).
In the present case the applicant relied on three affidavits from his solicitors explaining the reasons for the delay.
The first affidavit, of Ms Karen Sheridan, stated only that ‘an application for leave to appeal was lodged within the 28 days’ (being the period within which such an application is to be filed) and that ‘[o]ur office was unaware the application was rejected and we now resubmit an application for leave to appeal’. That affidavit was plainly inadequate.
The second affidavit, of Mr Bernard Keating, contained greater detail. It made clear that the applicant had given early instructions that he wished to appeal against sentence and that written advice recommending an appeal had been received from counsel the day after sentence was pronounced. The applicant’s solicitors prepared the relevant appeal documents and were aware that an appeal needed to be filed within 28 days. However, for some reason (not explained) the application for leave to appeal was ‘not lodged successfully’ and the solicitors did not become aware of this until some time after the 28 days period had expired. The appeal was ultimately filed in December 2023, almost four months after the 28 day period had expired.
The third affidavit, of Ms Sheridan, deposed that she had perused a document from Mr Keating that set out the applicant’s bases for appeal, but did not realise she was to lodge the appeal. When she became aware that the appeal had not been lodged ‘successfully’, she ‘inputted Mr Keating’s handwritten final case into the required format’. Ms Sheridan deposed that it took a number of attempts for the application to be lodged successfully, but did not provide any further detail.
I note that none of the affidavits provided any explanation of why the initial attempt to file the application for leave to appeal was unsuccessful, any explanation for how it was that the applicant’s solicitors came to realise that the application had not been filed, any explanation of when that occurred, or any information about how quickly the application was filed upon the applicant’s solicitors becoming aware that the application had not been filed. Those matters ought to have been dealt with in the affidavits. However, I am prepared to infer from the affidavits that the applicant was not responsible for the delay.
In the circumstances, I consider that there is an adequate explanation for the delay. However, it remains necessary to consider the prospects of success of the applicant’s proposed appeal. In order to assess those prospects, it is necessary to commence with a consideration of the sentencing judge’s reasons for sentence.
Sentencing reasons
The trial judge’s sentencing reasons[3] commenced with an outline of the offending, before turning to consider the applicant’s personal circumstances. The judge observed that the applicant had been born and grew up in Queensland. He had not experienced any abuse or neglect growing up and generally had a warm relationship with his family.[4] He was school captain of his high school, and although from ages 18 to 20 he drank alcohol excessively and consumed illicit drugs in order to feel more relaxed in social settings, neither alcohol nor drugs were ongoing issues for the applicant.[5]
[3]DPP v Morton [2022] VCC 1159 (‘Reasons’).
[4]Reasons, [9].
[5]Reasons, [10].
The judge observed that, after leaving high school, the applicant completed a diploma of film and television and moved out of home. He worked at Nando’s and also for his father, and had a ‘solid employment history’.[6]
[6]Reasons, [12].
The applicant had his first significant intimate relationship in 2021, when he was around 20 years of age. He moved to Melbourne with that partner, but the relationship then broke down a few months before the offending. That was distressing for the applicant.[7] The judge also noted that the applicant reported that, at the time of the offending, he had lost his job with Nando’s and his best friend, with whom he had lived, had moved out of the house. The applicant said that these stressors caused him to ‘lash out’ and commit the offences.[8]
[7]Reasons, [14].
[8]Reasons, [15].
The trial judge then turned to the applicant’s personal circumstances following the offending. He moved back to Queensland, and commenced another significant intimate relationship in 2014 or 2015. In the period 2015 to 2017 the applicant committed further criminal offences by masturbating in public parks on a number of occasions (the ‘Queensland offending’). Four of those occasions involved him masturbating in front of a child. One of the offences involved him following the victim for a time. The applicant stated that he engaged in the public masturbation ‘in an attempt to manage [his] sexual urges’ and to obtain sexual gratification. He was arrested for some of that conduct and spent 10 months on remand. At that time his then partner ended their relationship. The judge observed that she was not sentencing the applicant for the Queensland offending, but that it was relevant to her consideration of his prospects of rehabilitation, which she dealt with later in her reasons.[9]
[9]Reasons, [17].
The trial judge observed that at the time of sentence the applicant was engaged in full time study for a double degree in science and engineering, and that he had an excellent academic record.[10] The trial judge concluded her outline of the applicant’s personal circumstances by considering his relationship with his parents, with whom he was living, noting that his father occasionally fell and needed assistance getting up, and that his mother was not dependent on the applicant, although she relies on his help.[11]
[10]Reasons, [19].
[11]Reasons, [20]–[21].
The judge then considered reports by several experts: Ms Bovankerk, a forensic psychologist, Dr Cunningham, a psychologist, and Mr Topping, a psychologist whom the applicant attended following his sentence for his first offence in Queensland in 2015. None of those experts considered that the applicant had any mental illness or personality disorder.[12]
[12]Reasons, [22]–[23],
The judge then considered the gravity of the offending, including by reference to Tiahna’s victim impact statement.[13] She noted the maximum penalties applicable to each charge.[14] She observed that, although the kidnapping was an attempt only, the reason that the offence was not completed was because Tiahna was able to fight herself free, not because the applicant made a decision to desist.[15] The judge declined to classify the offending as ‘low, medium or high’ gravity, but concluded that it was ‘well above the lower range of gravity’.[16]
[13]Reasons, [25].
[14]Reasons, [26].
[15]Reasons, [27].
[16]Reasons, [30].
The sentencing judge next considered a number of pertinent sentencing factors, namely:
(a)the delay in the finalisation of the proceeding;[17]
(b)the plea of guilty, which her Honour observed had real utilitarian value even though not made at the earliest point in time;[18]
(c)remorse, where her Honour noted the letter of apology the applicant had sent to Tiahna, but also noted that Ms Bovankerk considered that the applicant minimised his offending;[19]
(d)the applicant’s prospects of rehabilitation;[20]
(e)sentences imposed in other cases involving attempted kidnapping;[21]
(f)the principle of totality, where the judge considered cumulation and the relevance of the sentences for the Queensland offending;[22]
(g)parsimony, where the judge considered a non-custodial disposition or a combined sentence;[23] and
(h)other sentencing factors, including general deterrence and just punishment.[24]
[17]Reasons, [32]–[33].
[18]Reasons, [34]–[36].
[19]Reasons, [37]–[39].
[20]Reasons, [40]–[46].
[21]Reasons [47]–[48], referring to Saenz v The Queen[2011] VSCA 154, R v Sumner[2016] SASCFC 59, Smith v The Queen[2014] VSCA 268, DPP v Causon and DPP v Zakeri[2015] VCC 1041. Of these, the judge said at [48] as follows:
In those cases, the sentences ranged from 10 months, for Attempted Kidnapping, to 6 years. I note that the offence in Smith was incitement to kidnap with a maximum of 25 years, and that the sentence in Sumner was an aggregate. There are a number of differences between those cases, and yours, but I agree with the view expressed by the Full Court in South Australia in Sumner that “[t]here can be no doubt that offences of attempted kidnapping, even when the offender has no prior record, are to be treated as grave crimes.”
[22]Reasons, [49]–[50].
[23]Reasons, [51]–[53].
[24]Reasons, [54]–[55].
As to the applicant’s prospects of rehabilitation, her Honour noted that she had the opportunity to assess the applicant’s behaviour in the nearly 10 years since the offending. In that context she considered his unrelated sexual offending in Queensland, including the fact that he continued to commit similar offences even after the first sentence imposed for that offending in 2015.[25]
[25]Reasons, [40]–[41].
On the other hand, the judge took into account that it is now more than 5 years since the applicant’s last offence, and he has had the benefit of treatment from Mr Topping, who has expressed willingness to treat the applicant again and noted that the stability of study and employment lowers the risk of reoffending.[26] Her Honour observed that Ms Bovankerk had assessed the applicant as presenting a ‘low risk of violent offending’, also noting the protective factors of the applicant’s studies, his family supports and his stable accommodation.[27] The judge found that the applicant has ‘good prospects of rehabilitation’, although he needed to take steps to better understand the causes of his offending. [28] She concluded that specific deterrence ‘carries real weight in this sentencing exercise’.[29]
[26]Reasons, [43].
[27]Reasons, [44].
[28]Reasons, [45].
[29]Reasons, [46].
Merits of the application for leave to appeal
The applicant’s submissions
As already observed, the sole ground of appeal is that the sentence imposed on the applicant was manifestly excessive. The ground of appeal was particularised by the applicant in his written case as follows:
1. The learned sentencing judge erred by:
(a) giving insufficient[30] weight to the significant change in circumstances since the offending;
(b) failed to give sufficient weight to the academic achievements;
(c) failed to give sufficient weight to the fact that at the time of the offending Mr Morton was a youthful offender;
(d) failed to give to give weight to the fact Mr Morton has no criminal history;
(e) failed to give sufficient, if any, weight to the fact that this sentence may destroy his chances of completing his degrees and pursuing a career in his chosen fields.
[30]The written submissions referred to ‘sufficient weight’, but it is clear from the context that the applicant intended to refer to ‘insufficient weight’.
However, it remains the case that there was no allegation of specific error.
The written case elaborated upon these matters as follows:
It is submitted that the sentences imposed are manifestly excessive. It is submitted in all the circumstances that the Learned sentencing Judge has failed to have sufficient regard to the fact that at the time of the offending, the Applicant was a youthful first-time offender. The Learned sentencing Judge has also failed to give sufficient weight that Mr Morton has evolved, if not significantly changed from the person he was at the time of the offending. Further, the sentencing Judge failed to give sufficient weight to the academic achievements of the appellant since the offending which suggest maturity and insight which need encouragement and sustained psychological treatment.
Furthermore, it is submitted that the Learned sentencing Judge failed to give sufficient weight, if any, weight to the fact that this sentence may destroy the appellants chances of completing his degrees and pursuing a career in the appellants chosen field, which are very important to his prospects to rehabilitation, his risk of re-offending and his future.
In oral argument, the applicant supplemented these submissions by addressing the following matters:
(a)the principles concerning the relevance of delay to an assessment of an offender’s prospects of rehabilitation, as set out in Tones v The Queen;[31]
(b)the weight to be attached to the fact that the offender was a youthful first time offender at the time the offence was committed, being 21 years of age, in light of the principles set out in R v Mills[32] and Azzopardi v The Queen;[33] and
(c)the trial judge’s conclusion that the applicant’s prospects of rehabilitation were ‘good’ was not reflected in the sentence imposed.
[31][2017] VSCA 118 (‘Tones’).
[32][1998] 4 VR 235 (‘Mills’)
[33](2011) 35 VR 43; [2011] VSCA 372 (‘Azzopardi’).
I will consider these aspects of the applicant’s submissions in greater detail below.
The respondent’s submissions
The respondent submitted that each of the sentences, the orders for cumulation and the total effective sentence are within range. She pointed out that the matters on which the applicant now relies were all matters upon which the applicant relied on the plea, and that the sentencing judge had regard to these matters in explaining her Honour’s reasons for sentence.
The respondent submitted that any assessment of change of circumstances had to occur in light of the applicant’s subsequent offending in 2016 and 2017 in Queensland, and that in light of that offending, the judge must have considered the applicant’s more positive changes in circumstances in order to reach the conclusion that his prospects of rehabilitation were ‘good’.
In so far as the applicant now complains that the judge failed to give ‘sufficient, if any’ weight to the ‘fact’ that the sentence imposed upon him ‘may destroy his chances of completing his degrees and pursuing a career in his chosen fields’, the respondent contended that the applicant made no such submission on the plea. Rather, on the plea the applicant acknowledged that the fact that he has been convicted of these offences will affect his future prospects of employment.
Analysis
This Court has frequently observed that an appeal against sentence on the basis of manifest excess or inadequacy requires ‘stringent proofs’.[34] It is not enough that the appellate court would have imposed a different sentence. Rather, the sentence being considered must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[35] In the absence of specific error, the sentence being considered must on its face reveal underlying error. This is no easy task.[36]
[34]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’).
[35]Osman v The Queen[2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[36]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
In the present case, I consider there is no real prospect that the applicant will succeed in this task.
The relevance of delay to rehabilitation
The first matter addressed by the applicant in oral argument was the relevance of delay to the assessment of the applicant’s prospects of rehabilitation. Relying on Tones,[37] the applicant submitted that delay has two ‘limbs’:
(a)unfairness to the offender; and
(b)whether during the period of the delay, the offender has made progress towards rehabilitation and whether there were good prospects of rehabilitation (the ‘rehabilitation limb’).
[37][2017] VSCA 118, [36] (Maxwell P, Redlich and Kyrou JJA).
The applicant relied upon rehabilitation limb. He drew attention to the following passages from decision of this Court in Tones:
Where an offender relies on either limb of delay as a mitigating factor, the offender will be expected — unless there is a concession from the Crown or an intimation that the judge will act on submissions from the Bar table — to adduce some evidence to support them. In this regard, we refer to the following observations in Fox & Freiberg’s Sentencing: State and Federal Law in Victoria:
…
If, during the intervening period, an offender has shown evidence of rehabilitation, such as undertaking a sustained period of counselling, the courts will sentence them on the basis of how they present at the time of sentence and not as at the time of the offence. Evidence of rehabilitation will greatly reduce, if not extinguish, the need for special deterrence.
…
There are two aspects to the rehabilitation limb. The first is whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse. The second is whether the offender has taken steps to reform, including by seeking counselling or other appropriate professional assistance, refraining from committing any further offences and being a valuable member of the community. For example, in R v Merrett, Piggott and Ferrari, this Court held that one of the offenders in that case had made ‘a number of significant changes in his life’.
Both aspects of rehabilitation — remorse and reformation — must be demonstrated, in order for the court to give full weight to that limb. Less than full weight will be accorded where reliance is placed merely on abstinence from further offending. In this regard, we refer to the following further observations in Fox & Freiberg’s Sentencing: State and Federal Law in Victoria:
It is a matter of some debate whether the absence of offending over the period of the commission of the offence and the sentence, in the absence of evidence of remorse or rehabilitation, is a factor that should be given any or much weight. In Bell v The Queen, Anderson J in the Western Australian Court of Appeal held that delay will only attract a significant discount:
where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.
Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts.[38]
[38][2017] VSCA 118, [38], [41]–[42] (Maxwell P, Redlich and Kyrou JJA) (citations omitted).
The applicant pointed out that, in the present case, there had been a period of five years between the date of his release from prison for the Queensland offending and his sentence. In that time he had not re-offended. Furthermore, he had accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse, including in a letter to Tiahna, which was provided to the Court. He had also expressed remorse in his sworn evidence given at the time of his sentencing indication hearing.[39] He had a period of time on bail, during which he had not reoffended. He had taken steps towards his own rehabilitation and reform, including obtaining treatment from Mr Topping. Furthermore, he submitted, in that five year period he had been a valuable member of the community, demonstrated by his outstanding academic record in his science and engineering degree, by the fact that he had lived at home to care for his sick father, and by the character references provided. Thus, he submitted, he had provided evidence of his rehabilitation, consistently with the remarks in Tones.
[39]A sentencing indication hearing occurred on 25 November 2012, but no indication was given.
In light of these matters, and of the observation in Tones that evidence of rehabilitation ‘will greatly reduce, if not extinguish, the need for special deterrence’, the applicant contended that specific deterrence ought to have played little or no role in his sentence. He pointed to the trial judge’s statement that ‘specific deterrence carries real weight’[40] and contended that her Honour had given specific deterrence too much weight — it ought to have played a significantly reduced role, if not been extinguished altogether. This was not put as an allegation of specific error, but as going to the overarching question whether the total effective sentence was manifestly excessive.
[40]Reasons, [46].
I do not accept that the judge erred in the weight she gave to specific deterrence, such that it can be said that this produced a sentence that is manifestly excessive. Tones does not set down a rigid rule as to the weight to be given to specific deterrence where there is delay and evidence of rehabilitation; rather, the weight will depend upon the circumstances of the particular case. In the present case, although the applicant was able to point to his behaviour since his most recent offending, and thus to evidence of rehabilitation, there was other material that justified the weight the judge gave to this matter.
In particular, as the judge observed, the applicant continued to lack insight into both the instant offending and the Queensland offending. There remained no real explanation for why he had offended, other than that he had ‘lashed out’ under stress. Furthermore, despite his treatment, he had as recently as June 2022 sought to minimise his offending, describing it to Ms Bovankerk as ‘just a grab’. The judge found that he lacked insight into his offending, a finding that was not challenged on the appeal. It was also relevant that the expert reports provided to the Court were to the effect that the applicant continued to pose a risk of re-offending.[41] Indeed, his most recent offending, in Queensland, had occurred after he had commenced treatment with Mr Topping. Furthermore, he had himself accepted that being placed on a bond for his first offending in Queensland had not been a sufficient deterrent, which supported the proposition that specific deterrence remained an important aspect of sentencing in this case.
[41]In December 2019 Mr Topping described his risk as ‘within the lower end of the medium range’, having in 2017 considered his risk of re-offending to be ‘in the high range’. In June 2022 Ms Bovankerk described his risk of violent re-offending as low.
In light of those matters, the judge considered that, although the applicant had good prospects of rehabilitation, he needed ‘to take further steps to understand and address the causes of [his] offending’, and that unless he ‘really grapple[d] with [his] fundamental motivation for offending there remains a risk of further misconduct’.[42] There was no submission on the appeal that that conclusion was not open to the judge. To the contrary, it was supported by the expert reports. It was in those circumstances that the judge then made reference to specific deterrence.
[42]Reasons, [45].
In those circumstances, I consider that the judge was correct that specific deterrence retained a role to play and that the judge did not err in the weight she gave to that matter, so as to render the sentence manifestly excessive.
The relevance of the applicant’s youth at the time of the offending
The second matter addressed by the applicant in oral argument was the relevance of the applicant’s relative youthfulness at the time of the offending. He was 21 at the time of the offending. He contended that the judge had failed to give sufficient weight to the principles applicable to the sentencing of young offenders, as set out in the decisions of this Court in Mills and Azzopardi.
In Mills, this Court held that the youth of an offender, particular a first offender, should be a primary consideration for a sentencing court and that in the case of a youthful offender, ‘rehabilitation is usually far more important than general deterrence’.[43] The Court also stated that a youthful offender should not be sent to an adult prison if that can be avoided. Batt J observed that to say that a violent crime requires a sentence effecting the purposes of general and specific deterrence ‘is not to show that the case is other than the “usual”’ for the purpose of these propositions.[44]
[43]Mills [1998] 4 VR 235, 241 (Batt J, Phillips CJ agreeing at 236, and Charles JA agreeing at 236).
[44]Mills [1998] 4 VR 235, 242 (Batt J, Phillips CJ agreeing at 236, and Charles JA agreeing at 236).
In Azzopardi, Redlich JA, with whom Coghlan and Macaulay AJJA agreed, summarised the relevant principles as follows:
There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. First, young offenders being immature are therefore “more prone to ill-considered or rash decisions”. They “may lack the degree of insight, judgment and self-control that is possessed by an adult”. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK and GAS:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
Secondly, courts “recognise the potential for young offenders to be redeemed and rehabilitated”. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. …
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.[45]
[45](2011) 35 VR 43, 53–4 [34]–[36] (Redlich JA, Coghlan JA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372.
Redlich JA also considered in some detail cases decided after Mills in which this Court had recognised that there are circumstances in which the seriousness of the offending is such as to reduce, or possibly even extinguish, the relevance of youth. His Honour summarised the position as follows:
[W]here the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[46]
[46](2011) 35 VR 43, 57 [44] (Redlich JA, Coghlan JA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372 (emphasis added).
I also observe that, in R v Boland,[47] Nettle JA addressed the circumstances in which offences were committed at a time when the offender was youthful, but were not prosecuted until many years after the event. His Honour observed that, in those circumstance:
[T]here is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.[48]
[47](2007) 17 VR 300; [2007] VSCA 242 (‘Boland’).
[48]Boland (2007) 17 VR 300, 304 [16] (Nettle JA, Ashley JA agreeing at 306 [25], Dodds-Streeton JA agreeing at 306 [27]); [2007] VSCA 242 (emphasis added).
The applicant pointed out that the judge did not refer to Mills or Azzopardi, or the principles there set out. Nor did her Honour refer to the matters that may follow from youth, such as a lack of insight and judgment. He submitted that the sentence did not reflect a ‘discount’ for these matters.
Nonetheless, can be no suggestion that the judge failed to have regard to the applicant’s youth at the time of the offending, and the increased importance of rehabilitation. The judge referred to the applicant as being ‘only 21’ at the time of the offending,[49] reflecting her awareness of his youthfulness at the time. Furthermore, her Honour observed that although he was 31 at the time of sentence, his rehabilitation was ‘relevant and important’.[50] Nonetheless, her Honour considered that a period of imprisonment was warranted, a proposition that the applicant accepted on the appeal. Rather, his submission was that the judge had attached insufficient weight to the applicant’s youth at the time of the offending. I again observe that no allegation of specific error was made; only an allegation of manifest excess.
[49]Reasons, [31], [55].
[50]Reasons, [55].
In my opinion the judge was plainly aware of the applicant’s youthfulness and understood that that meant that rehabilitation was an important principle. However, as the judge observed, he was 31 at the time of sentence and, unlike the circumstances considered by Nettle J in Boland, had committed further offending since the instant offences.
Notwithstanding that the judge considered rehabilitation important, her Honour quite correctly considered that a period of custody was necessary. In that regard, she considered that general deterrence, denunciation and just punishment were important.[51] I agree. The seriousness of the crime — the attempted kidnapping of a young girl walking alone in a park at night, accompanied by a threat to kill and the causing of injury — is such that deterrence, denunciation, just punishment and protection of the community must be more prominent in the sentencing calculus, and the weight to be attached to youth is correspondingly reduced.
[51]Reasons, [54].
In my view the applicant’s relative youthfulness at the time of the offending does not require the conclusion that the sentence imposed upon him was outside the range of sentences reasonably open to the judge in the exercise of her discretion.
The applicant’s ‘good’ prospects of rehabilitation
The third matter addressed by the applicant in oral argument was the trial judge’s conclusion that his prospects of rehabilitation were ‘good’. This, it was submitted, was not reflected in the sentence the judge imposed upon him. In this regard, the applicant relied upon the unanimous decision of five members of this Court in Boulton v The Queen,[52] where the Court observed as follows:
On any view, [imprisonment] is severe punishment. As the New South Wales Court of Criminal Appeal said in Mainwaring v R:
Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences.
Importantly for present purposes, these features of the restrictive prison environment also have the consequence that the opportunities, and incentives, for rehabilitation are very limited. For example, there is no access to sustained treatment for psychological problems or addiction. Access to anger management and sex offender treatment programs is rationed, and such programs are often unavailable to those sentenced to short prison terms.[53]
[52](2014) 46 VR 308; [2014] VSCA 342.
[53](2014) 46 VR 308, 333 [106]–[107] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342 (citations omitted).
The applicant again emphasised the various steps that he had taken towards rehabilitation, including his seeking out of counselling, his lack of offending in the five years prior to sentence, his pursuit of an education and his excellence therein. He submitted that the sentence imposed by the judge would interrupt his progress towards rehabilitation, and submitted that a sentence of 3 years and 4 months’ imprisonment did not reflect his good prospects of rehabilitation. A lower sentence ought to have been imposed.
Again, this was not a complaint of specific error. It is plain that the judge was aware of, and took into account, the applicant’s progress towards rehabilitation. In my view the applicant’s good prospects of rehabilitation do not require the conclusion that the sentence imposed upon him was outside the range of sentences reasonably open to the judge in the exercise of her discretion. That was one important matter to be weighed in the sentencing calculus. But, as I have previously observed, deterrence, denunciation, just punishment and protection of the community were also important sentencing considerations that loomed large in offending of this kind.
Other matters raised in the written submissions
In relation to two other matters to which the applicant referred in his particulars of ground 1 — namely, his academic achievements, and the proposition that ‘this sentence may destroy his chances of completing his degrees and pursuing a career in his chosen fields’ — I discern no error by the judge.
(a)In relation to the applicant’s academic achievements, they are relevant to the assessment of the applicant’s prospects of rehabilitation, and support the trial judge’s conclusion that those prospects are ‘good’, as explained above. Her Honour expressly referred to the applicant’s academic achievements, and considered the applicant’s study when considering rehabilitation. I see no indication that her Honour gave the applicant’s academic achievements insufficient weight.
(b)As for the proposition that the sentence imposed on the applicant might cause him not to complete his degrees or pursue his chosen career, that proposition was unsupported by any evidence and was not addressed in oral argument. There was no evidence, for example, that a person sentenced to a particular term of imprisonment would be prevented from completing a degree in science and engineering (whether a conviction for attempted kidnapping might do so is, of course, a quite different question). The trial judge, in the course of oral argument, raised the prospect that the applicant might defer his studies, and no reason was given why that might not occur. As for the effect of the sentence on the applicant’s ability to pursue his chosen career, I accept the respondent’s submission that, while a person’s criminal history is likely to have an impact on their employment prospects, the applicant failed to demonstrate how the particular sentence imposed upon him would have the asserted impact, particularly when he has, not only the conviction for the offences the subject of this proceeding, but also multiple convictions for sexual offences, for which he served a term of imprisonment.
Conclusion
Ultimately, all of the matters to which the applicant points in support of a more lenient sentence are matters that the judge in fact took into account. Furthermore, the judge also took into account those matters that pointed against a more lenient sentence. First and foremost, this was serious offending. As the judge observed:
All three offences were committed after dark, against a young female who was alone. You followed her to the park from where she had seen you across the road, a little distance before the park. The threat to kill the complainant was made whilst you were holding her around the mouth or face. Your offending was terrifying for the complainant. You report that you were not aware of her age. I cannot find, beyond reasonable doubt, that you were aware that she was as young as 13, but it must have been apparent to you that she was a younger female.[54]
Although the judge declined to classify the offending as being of low, medium or high gravity, it can only be regarded as serious offending, requiring a period of imprisonment, as the applicant accepted.
[54]Reasons, [29].
In addition, the judge correctly relied upon the applicant’s minimisation of the offending and his lack of insight into the causes of his offending, the need for both specific and general deterrence, and for just punishment and comparable sentences imposed for the offence of attempted kidnapping.
While the applicant had some mitigating factors, in particular his plea of guilty, his relative youthfulness, the fact that it was his first offending, and a period of five years during which he had committed no offences and undertaken treatment, nonetheless in my view a total effective sentence of 3 years and 4 months’ imprisonment was comfortably within the range open to the judge, given the gravity of the offending, the importance of both specific and general deterrence, and the importance of denunciation, just punishment and protection of the community. Nor can the individual sentences be said to be wholly outside the range of sentences available to the sentencing judge. To the contrary, they reflect the proper exercise of the sentencing discretion. In that regard, I note that the maximum penalty for the offence of attempted kidnapping was 20 years, and the sentence of 3 years imposed on the applicant for that offence was 15 per cent of the maximum. The other sentences were, respectively, 7.5 per cent and 5 per cent of the relevant maximum penalty. As for the orders for cumulation, they were relatively modest, amounting to a total of 4 months; that was plainly within the range open to the judge, in the exercise of her discretion. Finally, the non-parole period was less than 60 per cent of the head sentence, which is on no view manifestly excessive.
In light of this conclusion, I consider that the sole ground of appeal — that the sentence imposed was manifestly excessive — has no real prospects of success. In light of that conclusion, I would refuse the applicant’s application for an extension of time.
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