Nancarrow v The Queen
[2010] VSCA 300
•9 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0680
| AMBER CLAIRE NANCARROW | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | NETTLE and HANSEN JJA and ROSS AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 9 November 2010 |
DATE OF JUDGMENT: | 9 November 2010 |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 300 |
JUDGMENT APPEALED FROM: | R v Nancarrow (Unreported, County Court of Victoria, Judge Gullaci, 15 June 2009) |
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CRIMINAL LAW – Sentencing – Guilty plea – Attempted armed robbery – Armed robbery while on bail for attempted armed robbery – Young offender – Drug addiction – Prior convictions – Judge found rehabilitation prospects limited – No error in treatment of youth and rehabilitation prospects – Total effective sentence of three years eight months’ imprisonment with non-parole period of two years and two months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Matthew White & Associates |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I invite Justice Hansen to deliver the first judgment.
HANSEN JA:
Amber Claire Nancarrow (‘the appellant’) pleaded guilty in the County Court to one count of attempted armed robbery (count 1) and one count of armed robbery (count 2). The maximum penalties for these offences were 20 and 25 years’ imprisonment respectively. The attempted armed robbery occurred on 1 August 2008; the appellant was arrested that day and released on bail. Then, in October 2008, while still on bail, she committed the armed robbery. Section 16(3C) of the Sentencing Act 1991 thus required that unless the court otherwise directed, any sentence of imprisonment for the second offence be served cumulatively on any sentence of imprisonment for the first offence.
The appellant was aged 19 at the time of the offences and 20 at the time of sentence, however she had numerous prior convictions to which I refer below.
Following a plea in mitigation, on 15 June 2009 a judge in the County Court sentenced the appellant to 18 months’ imprisonment on count 1 and 32 months’ imprisonment on count 2, with 12 months of the sentence imposed on count 1 to be served cumulatively on the sentence imposed on count 2, producing a total effective sentence of three years and eight months, with a non-parole period of two years and two months. The judge stated that if she had not pleaded guilty, he would have imposed a total effective sentence of four years and ten months with a non-parole period of three years and four months. The judge further ordered that the sentence be served concurrently with a sentence of four months[1] the appellant was serving at the time of sentence, and declared that she had served 53 days of pre-sentence detention.
[1]This sentence, imposed by the Magistrates’ Court on 3 March 2009 in respect of a series of offences (including assault, theft of a car, and unlicensed driving) committed between January and September 2008, expired on 3 July 2009.
The appellant now appeals against her sentence pursuant to leave granted under s 582 of the Crimes Act 1958. Her grounds of appeal allege that:
1.The individual sentences and the total effective sentence are manifestly excessive.
2.The learned sentencing Judge erred in the treatment of the appellant’s youth.
3.The sentencing Judge gave insufficient weight to the appellant’s age.
The details of the appellant’s offending are described at paragraphs 4 to 7 (count 1) and paragraphs 10 to 13 (count 2) of the judge’s sentencing remarks and it is unnecessary to repeat those details here.
The judge referred to a range of matters personal to the appellant including her dysfunctional and chaotic upbringing, subsequent addiction to heroin and other drugs, and certain personality traits which included low self-esteem. The judge also listed numerous mitigating factors, including the plea of guilty, the appellant’s age, and the need to take into account her rehabilitation.
The judge noted that the Crown submitted that an appropriate head sentence was three to four years with a minimum term of between 18 months and two and a half years, while the appellant’s counsel submitted that a lesser sentence should be imposed (without specifying a specific range) yet conceded that the offending warranted a term of imprisonment to be immediately served.
As to the submission that the appellant’s rehabilitation should be ‘an overwhelming consideration’, the judge said:
Whilst it is clear that the court should endeavour to enhance the prospect of your rehabilitation, other considerations have an equal or greater role to play in the circumstances of your offending, in particular just punishment, denouncement of your criminal conduct, the significance of both specific and general deterrence and the need to protect the community from you.
And later, the judge said:
I have considered and determined that you have a capacity to achieve rehabilitation yet your prospects are limited. You have significant psychological issues to deal with; you have little structure in the community to support you; you have battled drug addiction and have a history of relapsing. You have a number of relevant prior convictions or findings of guilt. You have not taken advantage of any of the previous court sanctioned opportunities however there are some emerging positive signs.
In this regard he referred to her participation in counselling in prison, the fact that she had remained drug free, and in a methadone program had been able to almost halve her dosage.
Submissions
As to ground 1, counsel for the appellant listed 14 mitigating factors and submitted that, having regard to those factors, the sentences imposed were manifestly excessive. He submitted that while both offences had aggravating features, they were not carefully planned or organised. Rather, they were the offences of a person acting irrationally in the context of a profound drug addiction.
As to ground 2, counsel submitted that the judge erred in the application of R v Mills.[2] The error was revealed by the judge’s remark in the transcript to the effect that in the case of serious offences, the age and youth of the offender ‘must give way to other considerations’. This, together with the ultimate result, was said to reveal that the judge proceeded on the erroneous assumption that the law automatically required that Mills had no application to the appellant’s case.
[2][1998] 4 VR 235.
As to ground 3, counsel complained that although the judge referred to the appellant’s age, there was no elucidation as to its significance. In particular, counsel submitted, her age was relevant to the question of rehabilitation, that the appellant had experienced difficulties in custody because of her youth, that this was effectively her first time in prison, and that imprisonment would be more burdensome for her as a result.
Counsel for the Crown submitted, as to ground 1, that the sentence imposed was appropriate. Alternatively, the sentence was within the range proposed by the prosecutor at the plea hearing. Moreover, while defence counsel submitted on the plea that the appropriate sentence was less than the range submitted by the Crown, he declined to make a submission as to the proper sentencing range. It followed, counsel submitted, that in the absence of any suggestion that defence counsel’s approach was negligent or otherwise affected by a mistake as to the facts, the judge was entitled to pass sentence on the basis proposed by the prosecutor.
As to grounds 2 and 3, counsel for the Crown submitted that it was erroneous to suggest that the judge concluded that Mills had no application. On the contrary, the ‘heavily discounted sentence’ he imposed could only be explained by significant weight having been given to the appellant’s youth.
Conclusion
It is convenient to deal first with grounds 2 and 3 together. In essence, these grounds complain that the judge gave inadequate weight to the appellant’s youth and prospects of rehabilitation, in circumstances where Mills required those matters to be a primary consideration.
In my view, there is no substance in this complaint. As has often been pointed out, Mills is not authority for the proposition that in the case of youthful offenders, rehabilitation is invariably the overriding factor in sentencing. As Maxwell P said in R v Wyley:[3]
… what Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender’s future, as well as to the past conduct for which the offender is being sentenced.
Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence.
[3][2009] VSCA 17, [19]–[20].
In short, the sentencing judge is required to balance conflicting considerations and determine the weight to be given to those considerations. That involves a value judgment, as there is no single correct sentence. Rather, there is a range in which the sentencing discretion can be lawfully exercised. As the President said further in Wyley:[4]
… when a sentencing judge has carefully and conscientiously addressed all the relevant matters and has undertaken the necessary task of weighing up the competing factors, this Court will be reluctant to intervene.
[4]Ibid [23].
Further, as the appellant’s counsel conceded, Mills sets out propositions of a general nature, the application of which is inherently fact dependent. Counsel frankly recognised and pointed to cases where other sentencing objectives were given greater prominence than a young offender’s rehabilitation.[5]
[5]See for example R v Tran (2002) 4 VR 457, [14]; R v Bell [1999] VSCA 223, [14]; DPP v Lawrence (2004) 10 VR 125, [16]; R v Hennen [2004] VSCA 42, [24]; R v Nguyen & Okobagerish [2002] VSCA 130; DPP v Simpas & HR [2009] VSCA 40, [101]–[102].
In the present case, the judge was plainly aware of the propositions stated in Mills. He noted that the appellant was only 20 years’ old and stated that her rehabilitation had to be taken into account. As against that, however, the appellant was no stranger to the criminal justice system, having already made five appearances before the Children’s Court (between 2004 and 2007) and two appearances before the Magistrates’ Court (in 2007 and 2009), resulting in convictions for a range of offences, including theft, threatening to inflict serious injury, recklessly causing injury, assault with a weapon, and robbery. The appellant was dealt with leniently on many occasions, and it was only on the last court appearance (in 2009) that she had been sentenced to four months’ imprisonment in respect of a series of offences, including assault, theft of a car, and unlicensed driving, mostly committed before the present offences. In assessing the appellant’s prospects of rehabilitation, the judge was entitled to have regard to her criminal history and repeated failure to take advantage of leniency extended to her, coupled with the fact that she committed the offence of armed robbery while on bail for the attempted armed robbery. In all of the circumstances, including those personal to the appellant, the judge was entitled to regard the appellant’s rehabilitation prospects as limited. Further, the judge was entitled to consider that factors including just punishment, denouncement of her conduct, specific and general deterrence, and protection of the community had an equal or greater role to play than youth and rehabilitation in the particular circumstances of the sentencing exercise. The question was ultimately one of weighing up the relevant factors. In my view, it has not been demonstrated that the judge gave inadequate weight to the appellant’s youth and rehabilitation prospects. It follows that grounds 2 and 3 are not made out.
That leaves the ground of manifest excess. As to this, the judge’s sentencing remarks refer to most of the mitigating factors listed by counsel for the appellant. However they omit reference to defence counsel’s contentions on the plea: (a) that the appellant’s time in prison would be more burdensome because she had already experienced difficulties in prison and was particularly vulnerable in that environment, and (b) that the appellant had made attempts at rehabilitation while in the community (as opposed to rehabilitation in prison). While the judge did not specifically refer to these matters in his sentencing remarks, it does not follow that he ignored them. On the contrary, I consider that the judge was well aware of the hardship that the appellant would suffer in an adult prison, but determined that notwithstanding such hardship, a significant period of imprisonment was warranted. As to the matter of rehabilitation in the community, the judge sentenced on the basis that the appellant had made some efforts at rehabilitation, although her prospects were limited. In my view, that conclusion was open given the appellant’s criminal history and history of relapse into drug addiction. But even assuming that the judge failed to have regard to any of those matters in the appellant’s favour, allowing for all mitigating factors present, including the appellant’s youth, in my view the individual sentences and the total effective sentence were within the range open to the judge to impose. That is, of course, having regard to all of the circumstances including the applicable maximum penalties, the appellant’s criminal history, and the serious nature of the offending. Finally, I note that the sentences
imposed were slightly less than the median sentences for such offences in the period 2003 to 2007.
For these reasons, I would dismiss the appeal.
NETTLE JA:
I invite my brother Ross to deliver the next judgment.
ROSS AJA:
I also would dismiss the appeal, for the reasons given by Hansen JA.
NETTLE JA:
With respect I take leave to disagree. Notwithstanding the learned sentencing judge’s very detailed and careful consideration of relevant sentencing considerations, I am persuaded that his Honour erred in his assessment of the appellant’s prospects of rehabilitation.
As my brother Hansen has observed, the judge found that in view of the appellant’s significant psychological issues, lack of community support, previous failures in her attempts to beat drug addiction and failure to exploit opportunities afforded her by previous lenient sentencing dispositions, the appellant’s prospects of rehabilitation were limited.
With respect, I consider that the evidence dictated that they be rated more highly.
Truth to tell, the appellant suffers from all the deficits which the judge detailed. As the evidence shows they are the result of a drug addicted mother, a consequently highly chaotic and dysfunctional childhood, a constellation of resultant self doubts, anxiety and low self esteem with causally related polysubstance abuse which has been at the root of all the appellant’s offending.
Nevertheless, by the time of sentencing, it is also apparent that the appellant had taken herself in hand; had of her own volition and largely as a result of her own efforts, advanced a long way towards ridding herself of substance dependence; had enrolled in several courses with the Department of Education; and had put in place support through the VACRO mentoring program to assist her whilst in gaol and after her release.
No doubt as was said in the evidence, the appellant will require ongoing support, treatment and supervision in the community to enable her to achieve her goals. It is problematical that to a large extent it will also fall to the appellant to ensure that she gets the assistance she needs. Previous attempts and failures are plainly also a cause for concern. But in my view, to have come as far as the appellant has come, despite all the disadvantages which life has dealt her, implies that she is likely to succeed. It follows, in my view, that the sentencing discretion should have been reopened.
In the course of oral argument counsel for the appellant referred to the decision of this court in R v Squires.[6] In that case the court found that a total effective sentence of five years’ imprisonment with a non-parole period of three years imposed on a 20 year old male offender on pleading guilty to one count of armed robbery, one count of burglary, two counts of attempted robbery, and one count of theft was manifestly excessive. The court set aside the sentence and resentenced the offender to a total effective sentence of three years’ imprisonment with a non-parole period of 11 months, in order to allow the offender what the Court termed one last chance to avoid spending more than the 11 months in prison he had already served by the time of the appeal.
[6][2001] VSCA 199.
The sentence in Squires was undoubtedly very merciful. The scale of offending was worse than in this case and the offender’s antecedents were more or less similar to those of the appellant. But the sentence in Squires was merciful for the good reason that the youth of an offender should ordinarily be a primary consideration for a sentencing court where that consideration arises,[7] and in that case, notwithstanding that the offender had prior convictions for two offences of being in possession of a regulated weapon, two offences of theft and offences of attempted theft, obtaining property by deception and being in possession of a drug of dependence.
[7]R v Mills [1998] 4 VR 235, 241.
Times change and sentences have tended to increase. What was done in 2001 is no longer necessarily a valid comparator. But given the many similarities between this case and Squires, I consider that it at least provides some guidance. Accordingly, if the sentencing discretion had been reopened in this case, as I think it should have been, I would have set aside the sentences passed below and in lieu thereof I would have resentenced the appellant on count 1 to 18 months’ imprisonment; and on count 2 to 30 months’ imprisonment, and I should have ordered that six months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 2. That would have made for a total effective sentence of three years’ imprisonment and I would have set a non-parole period of 20 months.
Since my view, however, is a dissenting view, there is no utility in further pursuing what might otherwise have been.
In view of the decision of the majority, the order of the Court is that the appeal is dismissed.
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