Myers v The Queen
[2011] VSCA 271
•19 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0253
| JOHN LIONEL MYERS | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | BONGIORNO JA and WHELAN AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 19 August 2011 | |
| DATE OF JUDGMENT | 19 August 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 271 | |
| JUDGMENT APPEALED FROM | DPP v Myers (Unreported, County Court of Victoria, Judge Pullen, 9 July 2010) | |
---
CRIMINAL LAW – Appeal against sentence – Whether it was open to sentencing judge to disregard claim that appellant acting under compulsion or duress when committing offences – No error established – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr A Hands | Warren Graham & Murphy |
For the Crown | Mr R A Elston SC | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
I will ask Whelan AJA to deliver the first judgment.
WHELAN AJA:
The appellant pleaded guilty before a judge in the County Court to seven counts of burglary, five counts of theft, one count of attempted theft, one count of handling stolen goods, one count of escape from lawful custody and a summary offence of criminal trespass. He was sentenced on 9 July 2010 to a total effective sentence of six years and five months’ imprisonment. A non‑parole period of four years was fixed.
On 15 April 2011 the appellant was given leave to appeal his sentence. In granting leave, the only ground which was expressly addressed by the judge was one concerning whether it was open to her Honour to disregard a claim that the appellant was acting under compulsion or duress when he committed the offences. Other grounds were also relied upon and leave was given in relation to those grounds as well.
The offences occurred between 6 December 2003 and 28 April 2008. In substance, the appellant was a member of a group who carried out burglaries and thefts on commercial premises in order to obtain seafood, particularly abalone, which was then sold on the black market. The appellant’s role was as a skilled labourer or ‘tool man’. It was not alleged that he played any part in the on sale of the goods obtained in the burglaries. The sentencing judge found that he had acted as part of a team and that he had been an integral part of the operation and not a mere minion.
When apprehended, the appellant escaped from police custody whilst handcuffed and hid in the bush for some days, trespassing on a property so as to use equipment to separate his handcuffs.
Compulsion or duress
It is important to set out how the issue of compulsion or duress was dealt with in the course of the plea.
Counsel appeared on behalf of the appellant on the plea. The plea was heard over three days, on 24 June, 25 June and 9 July 2010.
The issue was not addressed in the prosecution opening.
The issue of the appellant’s motivation for the offending arose early in the plea put by counsel on his behalf. The appellant’s counsel submitted that the appellant:
… was recruited because he had a drug debt. In relation to these matters he will not go beyond that to say that it was a crime syndicate.
The appellant’s counsel described his activities as ‘doing a job for his employer’.
There was discussion on a number of occasions during the course of the plea about the money which the appellant received as a result of his activities. In the end the judge was left in the position of being told that it was an ‘indeterminate amount’.
Early in the plea the drug debt was put forward as being the explanation for the appellant’s initial involvement in the offending in 2003 and 2004 and then it was suggested that he resumed offending in late 2007 and into 2008 after he was threatened and his parents’ house was firebombed on two occasions in 2006.
As to the resumption of offending, his counsel put it in the following way:
He decides to re‑offend given the incentives to offend and the disincentives not to offend, namely he will be killed and his family will be killed.
In response to that submission, the sentencing judge asked whether any evidence would be called on that and she was told no. The judge then raised the issue of why he had not gone to the police, in response to which it was submitted that the appellant could not see a way out.
At that point in the plea a report of a treating psychiatrist, Dr Moorthy, was tendered.
Dr Moorthy’s report does refer to the appellant being convinced that his family were in danger and that there was a need to protect them and it does indicate that his state of mind deteriorated in early 2008. Dr Moorthy describes this as paranoia. It is noteworthy that Dr Moorthy does not appear to be aware of what is now said to have been real rather than delusional dangers.
Dr Moorthy also diagnosed post traumatic stress disorder. The doctor described the circumstances in which that arose as being the following:
Mr Myers reported that he went on holidays with friends in April 2008 to Victoria. While on the way to his motel he was taken by the police into custody. He stated that while in custody he had a severe panic attack and heard a voice saying ‘river’. He interpreted this to mean he would be taken to a river and shot. He ran into the bush and could not be located for approximately three nights which he spent in the bush under freezing conditions.
This is an inaccurate statement of the relevant circumstances. Mr Myers went to Victoria in order to carry out burglaries. He was taken into custody by the police because of the offences to which he has now pleaded guilty. The event described as running into the bush was in fact the conduct which constituted the offence of escaping from lawful custody.
A report was also tendered from the clinical and forensic psychologist, Dr Simon Kennedy.
The report of Dr Kennedy gives an account of a drug debt of $30,000 owed in 2003 and of firebombings in 2006. In contrast to the way the matter was first put to the sentencing judge, his report recounts that the drug debt was still owed at the time of the firebombings and at the time of the further offending in 2008.
The sentencing judge was concerned about the absence of evidence as to the firebombing incidents and she raised that with counsel. She made it clear that, in the absence of agreement, she could need evidence about those matters. Counsel for the prosecution informed the sentencing judge that the prosecution accepted that the house had been subject to arson on two occasions but that nothing beyond that was accepted. The sentencing judge then encapsulated the position to the appellant’s counsel as being that the house was subject to arson but that the reasons were unknown. The appellant’s counsel agreed with that.
The sentencing judge went on:
It might be because of his drug debt which is separate, of course. He might have owed $30,000 which is another point I want to come to.
The sentencing judge was also told that the appellant’s father had wanted him to go to the police about the threats, had endeavoured to persuade him to do so, and had perhaps believed that he had persuaded him to do so.
The appellant’s father died from cancer at around this time. The appellant’s counsel described what then happened in these terms:
I think he changed his mind about going to the police and went back into working for the criminal syndicate.
As her Honour had foreshadowed, she then queried counsel for the appellant about the $30,000 drug debt and when it was repaid. After taking instructions, she was told that the drug debt had existed throughout the entire period of the offending. As to when the debt was repaid, counsel for the appellant said:
Your Honour, in April of 2007 he paid off half the debt, some $15,000, and in 2008 he paid off the remainder, the other $15,000, and I believe that was after the last offence.
Her Honour indicated at that point that what had been put thus far as to the circumstances of the offending did not seem to her to have much mitigating effect. She queried the credibility of what was being put and in particular referred to the appellant’s failure to take his concerns to the police and also to the extensive period of time over which the offending occurred. Her Honour then asked again whether evidence was going to be called on ‘all of this’ and was again told that it was not. Her Honour then commented:
Well, this is where we have a bit of a problem. At the end of the day I am finding this a little bit difficult to accept.
In response to that observation, counsel for the appellant said, ‘In the absence of evidence I understand that, Your Honour’.
Before proceeding to other matters, her Honour then observed:
I accept that the police acknowledge that his house was the subject of arson on two occasions in 2006. The reason we don’t know but it would be concerning to him and I accept that particularly a man in his mental state. I accept that one.
When the plea hearing resumed on 9 July 2010, counsel for the appellant read a four‑page letter said to be ‘as further plea and sentence’ in which the appellant asserted that he offended because of the existence of the drug debt and threats that were made to him in relation to repayment of that debt throughout the entire period of the offending.
In the course of her sentencing remarks, her Honour referred to the submission made about the drug debt at para [37]. She later said:
[42] Regarding your offending, I was told you began your involvement in it, consistent with the accounts on the presentment in 2003, then re-offended approximately a year later in 2004. You said you did not like being involved in this offending and then went back to Sydney to live. Whilst staying at your parents’ home you said you were paid a visit by a man who suggested you get back in to the business.
[43] Your house was firebombed in 2006. Following that incident, you went to Saratoga to live with your father for a while. In late 2006, your home was again firebombed. You were urged by your father to inform the police, however, you did not do that.
[44] The police informant in the matters before me confirmed that he was aware your house was the subject of two arsons in 2006. The reasons for that, of course, are not the subject of any evidence.
[45] As a result of the firebombings and threats made to your ex-wife and four children, you said you believed the threat was real and that your wife and family would be killed. You then made the decision to continue with your offending until caught in April 2008. You said you could not see a way out and therefore continued to offend.
It was submitted on behalf of the appellant that there was ‘uncontested evidence’ that he was acting under compulsion when he committed the offences. This evidence was said to be constituted by the Crown concession, the appellant’s letter that was read, the psychiatric report of Dr Moorthy and the psychological report of Dr Kennedy. It was submitted that it was not open to the sentencing judge to ignore the uncontroverted evidence that the appellant’s offending recommenced after the firebombings of his home in 2006. It was also submitted that her Honour should have drawn the inference that there was a link between the firebombing and the appellant’s further offending.
A contested factual assertion on a plea must be proved by admissible evidence.[1]
[1]R v Rumpf [1988] VR 466, 471.
Where the matter in issue is said to mitigate, it must be proved on the balance of probabilities.[2]
[2]R v Storey [1998] 1 VR 359, 369.
The first point to be made is that in my view there was no evidence upon which the sentencing judge could properly have reached any conclusion as to a mitigating circumstance on the balance of probabilities, beyond the prosecution concession that two arsons had occurred in 2006 for unknown reasons.
Assertions from the bar table are not evidence, whether they are made on instructions or by reading out a letter written by the offender. It would have made no difference if the appellant’s letter had been tendered. In the circumstances here, such untested material could not have established the matters contended for.
The inconsistent and hearsay statements made to the psychiatrist and the psychologist could not be a proper basis for a conclusion in the circumstances here.
Nevertheless, as I read her Honour’s reasons, she did find that the house was ‘firebombed’ twice in 2006 and she did find that the appellant made the decision to continue offending in the belief, as a result of the firebombings, that the threat to his family was real. Her Honour set these findings out as part of the relevant factual circumstances.
Her Honour did not make a finding that these circumstances relevantly mitigated the offending. In my view it was not open for her to make any such finding on such evidence as was before her.
Even if one accepted the assertions and the hearsay, the only finding open was that the appellant offended because he owed a large sum of money to criminals as a result of his illegal drug use, that he was threatened and eventually his family was threatened because he could not repay this debt, and that he was motivated to join with these same criminals in committing the offences so that he could repay what was said to be owed and be free of the threats made against him.
Her Honour indicated in the course of the plea that she did not see these circumstances as mitigating the seriousness of the offending. I agree.
As a meaningful explanation for the offending what was proffered was in any event not credible. Some of the issues raised by what was put might include these questions: How was it that the drug debt was not repaid or reduced in 2003 or 2004 given that he was paid an indeterminate amount for his participation in the offences? How is it that the offences in December 2003, and then a year later in December 2004, and then three years later in December 2007 to April 2008, are to be explained by a drug debt owed over that entire period? If the firebombings in 2006 were the cause of his resumed offending, how was it that that resumption was not until a year afterwards? These issues are not matters to be ignored or to be speculated upon. If they are to be addressed, they must be addressed by evidence. There was none.
There is no error established in relation to this ground.
The other grounds can be dealt with shortly.
Complaint was made that her Honour had not given sufficient weight to the principles explained by this Court in Verdins.[3] Her Honour found that those principles applied in relation to moral culpability, general deterrence, specific deterrence and the extent to which prisons would be more burdensome. It is clear from her reasons that she still considered both general and specific deterrence to be important.
[3]R v Verdins [2007] VSCA 102 (‘Verdins’).
I can see no error in her treatment of this issue. Indeed, if anything, it seems to me that her application of Verdins here was overly generous to the appellant. I note that the prosecution conceded at the plea hearing that Verdins did apply.
It was submitted that her Honour had failed to give sufficient weight to the guilty plea. I do not accept that. She addressed the matter specifically and she outlined the utilitarian value of the plea in this particular case.
It was submitted that her Honour’s sentence offended the totality principle. I reject that. Her Honour’s sentences properly differentiate between the various offences and the directions for cumulation reveal similar differentiation whilst providing for an outcome appropriate to the criminality of the different offences and groups of offences.
Finally, it was submitted that the individual sentences, the total effective sentence and the non‑parole period were manifestly excessive. The submissions in this respect essentially relied upon the other grounds, which I have rejected. These sentences and the total effective sentence and the non‑parole period were well within the range in relation to the circumstances of this offending and the appellant’s history and personal circumstances.
In my view the appeal should be dismissed.
BONGIORNO JA:
I agree.
The order of the Court will be that the appeal is dismissed.
---
0