R v Alan
[2004] VSCA 69
•22 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 138 of 2003
| THE QUEEN |
| v. |
| PATRICK ALAN |
---
JUDGES: | CHARLES and BATT, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 April 2004 | |
DATE OF JUDGMENT: | 22 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 69 | |
---
SENTENCE – Application to appeal against sentence of five years with non-parole period of three years for multiple counts of burglary, theft, causing injury recklessly and causing serious injury recklessly – Error in calculating the number of prior convictions for theft and burglary – Whether mitigating circumstances sufficiently taken into consideration – Application dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person. Mr J. McLoughlin appeared amicus curiae | Victoria Legal Aid |
CHARLES, J.A.:
I will ask O'Bryan, A.J.A. to give the first judgment.
O'BRYAN, A.J.A.:
The applicant was arrested on 21 January 2001 and charged with three counts of burglary involving private premises at Narre Warren, two offences, and business premises at Pakenham, one offence. He was also charged with four counts of theft involving the premises at Narre Warren, two offences, and the premises at Pakenham, two offences. In addition to the seven offences involving dishonesty, the applicant was charged with causing injury recklessly to Luke Miller and causing serious injury recklessly to Aaron Miller.
To all nine charges, the applicant pleaded guilty in the County Court on 8 May 2003 and was sentenced to a total effective term of five years' imprisonment with a non-parole period fixed of three years.
The sentence imposed on count 9, three years, became the base sentence. One year of a two-year sentence imposed on count 8 was ordered to be served cumulatively with count 9. Two-year sentences were imposed on each of the other counts and three months of the sentences imposed on counts 1, 3, 5 and 7 were ordered to be served cumulatively with count 9.
The maximum term of imprisonment for all the counts, save counts 8 and 9, is ten years. The maximum term for count 8 is five years and the maximum term for count 9 is 15 years.
The applicant was 35 years of age when he was sentenced. He admitted a considerable number of prior convictions. The judge calculated 49 previous convictions for theft and 17 for burglary. The applicant disputes the calculation. He applied for leave to appeal the sentence before Vincent, J.A. on 11 December 2003. In refusing leave his Honour recognised that the figures used by the sentencing judge were incorrect. He calculated 36 counts of theft and 10 counts of burglary. In addition, his Honour noted a further nine convictions for attempted theft, going equipped to steal, attempting to obtain property by deception, being in possession of property suspected of being stolen, being in possession of housebreaking implements and handling stolen goods. All these prior convictions were relevant for sentencing purposes, particularly a conviction in Queensland on 4 October 1995 for stealing with threats of actual violence whilst pretending to be armed with a dangerous weapon (known as armed robbery in Victoria) for which a sentence of imprisonment for seven years was imposed. In Western Australia in November 1999, the applicant was convicted of a number of motor car offences and one offence of being in possession of housebreaking implements.
I have detailed the prior convictions because the applicant's first ground of appeal alleges that the judge erred in calculating the number of prior convictions and the number of violent prior convictions to his detriment.
In my opinion, the applicant's past history of offending was relevant for sentencing purposes such as specific deterrence and risk to the community. It was of no moment that the judge's calculation of prior convictions was not 100% accurate. No error of real significance influenced the sentence which, in my opinion, was not heavy in all the circumstances. Indeed, no specific complaint is directed to any individual sentence, nor to the cumulation order, nor to the non-parole period.
I shall refer to the words used by Vincent, J.A. in his reasons for dismissing the application for leave to appeal. With respect, I adopt them as correct and appropriate:
"There is, I consider, difficulty in attributing any real significance to his Honour's error with respect to the exact number of offences of burglary and theft previously committed by the applicant, particularly when regard is had to the other offences of dishonesty which he did not mention. What was important was an extensive history of offending that demonstrated that the applicant had been a persistent criminal engaging in various forms of dishonesty for approximately 15 years. Against that background, the precise number of his many convictions for theft and burglary convictions was, for practical purposes, inconsequential as a sentencing consideration. The existence of a reasonable possibility that different sentences would have been imposed, had his Honour made correct calculation, can, I consider, be discounted."
The second ground of appeal asserts that the judge erred by not taking sufficiently into account the mitigating circumstances including that of the assault itself, the other offences, character references and changes made to the past life of the applicant.
Two of the burglary offences (counts 1 and 6), two of the theft offences (counts 2 and 7) and both of the injury offences concerned the Miller home in Narre Warren and the owner's twin sons. The applicant broke a window and entered the garage of premises owned by Miller in the early hours of 19 January 2001. The applicant stole 36 boxed DVD players from the garage and placed them in his vehicle. Later, he returned to the garage and stole further items of property, including two sets of Cobra golf clubs and bags. The Miller family was disturbed by their dog barking. Mrs Yvonne Miller rang her son Aaron and he rang his brother Luke. When Luke arrived, he chased the applicant who was carrying the golf equipment. The applicant eventually swung a golf club which struck Luke's left and right forearms causing pain, bruising and swelling. Luke knocked the applicant to the ground shortly before Aaron arrived at the scene. The applicant regained his feet and, using one of the golf clubs, struck Aaron across the face causing serious injuries to both eyes and the bridge of his nose. As a result of the eye injuries, Aaron suffered permanent damage to his sight.
During a police interview, the applicant claimed that he carried out the burglaries and thefts from the Miller home at the request of an unidentified person who had offered to pay him money for the DVD players.
The third burglary offence (count 3) and the theft offences (counts 4 and 5) concerned two business premises at Pakenham. From one of the premises, the applicant stole computer equipment.
A number of mitigatory matters were relied upon by counsel for the applicant who frankly acknowledged that the applicant expected to receive a term of imprisonment for the offending. Counsel informed the judge that the applicant had been in a dysfunctional family as a youth and had limited education. Since his release from prison for the armed robbery, the applicant obtained employment and settled down to live with a female partner and became a father. Evidence was led from the partner as to the applicant's family life and non-violent disposition.
The excuse offered for the offending was the need for money and the temptation to make money by stealing the DVDs for another person who offered to pay him. The judge said he was not impressed by these reasons for the offences of dishonesty and did not consider they provided a basis for mitigating the sentence. I consider the judge was entitled not to accept the reasons as mitigating circumstances.
The judge said that he would take into account the guilty plea and discount the sentence that otherwise he might have imposed.
I have not detected any error in the sentencing remarks of the judge. His Honour was made aware of all the mitigating circumstances, but they were of little weight when considered alongside the applicant's criminal background and the serious nature of the offences, particularly counts 8 and 9 which involved violence to the person.
This morning the applicant raised a new matter which had not been brought to the attention of either the sentencing judge or Vincent, J.A. The applicant informed the Court that he is serving his sentence in protection in prison, which is harder than serving a sentence in the mainstream of the prison. The applicant said it is better to be in the mainstream of the prison because certain privileges are not available to protection prisoners and the company he is required to keep in protection is less agreeable. This matter was not raised by the applicant with his counsel because, he said, he did not know it could be raised as a mitigating matter. The Court was assisted subsequently by Mr McLoughlin, who appeared as amicus curiae for the applicant when this new matter was raised.
In my opinion, it is unlikely that if this matter had been known to the sentencing judge a lesser sentence would have been imposed, for these offences were serious and the sentence imposed was not heavy in all the circumstances.
In my opinion, the sentence was fair and just in the circumstances described and I would dismiss the application for leave to appeal against the sentence.
CHARLES, J.A.:
I agree.
BATT, J.A.:
I also agree.
CHARLES, J.A.:
The order of the Court today is that the application for leave to appeal against sentence is dismissed.
---
0
0