R v Ambrose
[2009] VSCA 265
•24 November 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 943 of 2007
| THE QUEEN |
| v |
| MARK AMBROSE |
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| JUDGES | ASHLEY and NEAVE JJA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 August 2009 |
| DATE OF JUDGMENT | 24 November 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 265 |
| JUDGMENT APPEALED FROM | R v Ambrose (Unreported, County Court of Victoria, Judge Higgins, 7 December 2007) |
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CRIMINAL LAW – Sentence - Burglary – Theft – Obtaining property by deception – Possession of unregistered firearm – Whether judge wrongly failed to moderate sentence by reason of appellant’s mental illness – Whether breach of totality principle – Whether sentence manifestly excessive – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
For the Appellant | Mr D A Dann | Rainer Martini and Associates |
ASHLEY JA
NEAVE JA
KING AJA:
The appellant, Mark Ambrose, appeals by leave against sentence of imprisonment passed upon him in the County Court on 7 December 2007. The counts on which the appellant was presented (to which he pleaded guilty) and the individual sentences imposed, were as follows:
Count 1
Burglary[1]
15 months’ imprisonment
Count 2
Theft[2]
12 months’ imprisonment
Count 3
Burglary
18 months’ imprisonment (base sentence)
Count 4
Theft
12 months’ imprisonment
Count 5
Obtain property by deception[3]
3 months’ imprisonment
Count 6
Possess a drug of dependence[4]
Fined $1,000
Count 7
Being a prohibited person, possess an unregistered firearm[5]
15 months’ imprisonment
[1]Crimes Act 1958 (Vic) s 76(1), maximum penalty 10 years’ imprisonment.
[2]Crimes Act1958 (Vic), s 72, maximum penalty 10 years’ imprisonment.
[3]Crimes Act1958 (Vic), s 81(1), maximum penalty 10 years’ imprisonment.
[4]Drug, Poisons and Controlled Substances Act 1981 (Vic) s 73, maximum penalty not more than 5 penalty units.
[5]Firearms Act 1996 (Vic), s 5(1A), maximum penalty 1800 penalty units or 15 years’ imprisonment.
The learned judge cumulated 9 months of the sentence on count 1, 6 months of the sentence on count 2 and 12 months on the sentence on count 7 on each other and on the sentence on count 3. The total effective sentence on this presentment was 3 years and 9 months’ imprisonment. His Honour ordered that it be served cumulatively upon a sentence of 15 months’ imprisonment which he imposed that day on an appeal from the Magistrates’ Court. In that appeal, his Honour sentenced the appellant on charges of burglary and theft committed on 16 and 29 December 2005.[6] This yielded an overall total effective sentence of 60 months’ imprisonment. His Honour fixed a non-parole period of 36 months’ imprisonment. He made an appropriate declaration in respect of pre-sentence detention, and certain ancillary orders.
[6]His Honour sentenced the appellant on each of the four charges. On three of them to 15 months’ imprisonment, and on one to 5 months’ imprisonment. He made no order for cumulation.
Grounds of appeal
The appellant relied on three grounds of appeal, namely –
1 The learned sentencing judge erred in failing to properly take into account the appellant’s mental health problems.
2 The learned sentencing judge erred in failing to properly take into account the principle of totality.
3 The sentence imposed was manifestly excessive.
The offences
All the offences on the presentment were committed on 3 February 2006. The appellant, a man then aged 35, went to the unattended premises of a stranger at Ferntree Gully. He broke into a motor vehicle which was in the garage. The keys were in the vehicle. The appellant drove off (counts 1 and 2).
The appellant drove to the Northern Victorian township of Derby (it is between Wedderburn and Inglewood). He entered an unattended premises and stole an array of goods, including a chainsaw (counts 3 and 4).
The appellant drove to a service station and used the stolen chainsaw as security to pay for petrol (count 5).
The appellant’s vehicle was intercepted not far from Charlton. A search of the vehicle turned up a small quantity of cannabis (count 6).
Also located was a pen pistol of home-made construction. Obviously, it was unregistered. The appellant was a prohibited person (count 7).
The appellant was interviewed that day. He admitted all the offences save for the firearms offence. He stated that the weapon had been stolen, but inadvertently, from the premises at Derby – although, later, he pleaded guilty to that offence. On the plea, he continued to assert, through his counsel, that his possession of the weapon was inadvertent.
The offences dealt with on appeal from the Magistrates’ Court
On 16 December 2005 the appellant broke into premises at Surrey Hills. He stole a camera, jewellery, watches and some coins. He was disturbed, and fled.
On 29 December 2005 the appellant broke into premises at Boronia. He damaged some of its contents, ate food, and stole alcohol.
Earlier offences for which the appellant was sentenced by the same judge
On 25 June 2004 the sentencing judge sentenced the appellant for offences of aggravated burglary, threat to kill, criminal damage, causing injury intentionally, and assault. His Honour imposed sentences that yielded a total effective sentence of 30 months’ imprisonment, which he wholly suspended for a period of 24 months.
That sentence was, by reason of s 27(2A) of the Sentencing Act 1991, defective. The judge was asked to and did remedy the defect on 7 December 2007, by substituting a period of suspension of 30 months.
It was common ground that, in the circumstances, the instant offences were not committed in breach of the suspended sentence – the accepted position being that the 2004 sentence, as passed, had been a nullity. So viewed, the appellant had the benefit of the 2005 and 2006 offences not breaching the 2004 sentence.
The offender
The appellant was, as we have said, aged 35 at time of offending. He had left school at year 8. It seems that he has a low IQ. His employment had been sporadic, and he had not worked at all for some years before the present offending.[7]
[7]He apparently attributed this to an industrial accident.
The appellant was a long-time abuser of amphetamines and alcohol. He was at time of offending, and had been for a number of years prior thereto, in a relationship which was very unstable, his partner being a schizophrenic and an alcohol abuser.
In the period between offending and plea the appellant had been hospitalised once in consequence of an attempted suicide by overdose. That was not his only suicide attempt over the years.
The appellant was on remand for more than a year of the period between charge and sentence. In that period he was effectively been on his own. It appears that he was visited neither by his mother nor by his now former partner.
The offences on 3 February 2006 were committed, it was submitted on the appellant’s behalf on the plea, when, having argued with his partner, he stole a vehicle in order to get away from Melbourne. The robbery and theft at Derby were, counsel submitted, the acts of a desperate man who had no money for food or drink.
Concerning the appellant’s psychological well-being, counsel on the plea relied upon a report from Mr Ian Joblin, psychologist. Counsel argued that it revealed the appellant to be ‘not well psychologically’, and submitted that if his Honour considered that the appellant needed to be imprisoned for a further period, then a long period of potential parole ought be provided. He did not submit, as we perceive it that the appellant’s moral culpability was reduced by reason of his psychological unwellness and any connection which it had with his offending; nor that his psychological unwellness was relevant to the sentencing considerations of general and specific deterrence; nor again that it was such as to render time in prison unusually burdensome.
The appellant, as will be seen, was a man with a significant criminal history.
Medical and psychological reports
Before the learned sentencing judge were the reports of Dr Bradbury, general practitioner, dated 25 March 2004 (to which there were many attachments), Dr Deacon, Consultant Psychiatrist, dated 24 September 2007, and Mr Joblin, Forensic Psychologist, dated 24 May 2004 and 3 March 2007.
Dr Bradbury’s report detailed a series of physical injuries suffered by the appellant between 1979 and 2003 – a number of them as the result of altercations. It also detailed a history of attendances from 1990 relating to psychological illness. Attachments revealed that the appellant had made failed attempts to detoxify in 2000 and 2001. The doctor stated that the appellant suffered, as at 2003, from a ‘long standing anxiety state, poor self control and poor anger control’, ‘major depression’ and ‘uncontrolled amphetamine dependency’. He had been medicated with antidepressants and anxiolytics.
Dr Deacon considered that the appellant was moderately depressed at time of consultation. It was possible that he had been clinically depressed when sentence was imposed in 2004. As to the 2006 offences, the doctor expressed this opinion:
[The applicant] reported to being severely depressed at the time of the offences in February 2006 being committed. He reported to deliberately cease taking his antidepressants in order to increase his risk of suicide. There is therefore a potential association between his offences and his mental state but this is a loose association and not direct.
Mr Joblin took a history at the appellant’s 2004 consultation which in some respects – for example, the appellant’s relationship with his mother, and his use of illicit drugs other than amphetamines – was inconsistent with attachments to Dr Bradbury’s report. He considered that the appellant was then ‘not psychologically well’. There were ‘a host of psychological and psychosocial problems’, which had not been (adequately) addressed.
Mr Joblin’s assessment in 2007 was very similar. The appellant was then, in his opinion, clinically depressed. He had made a number of suicide attempts. He was on antidepressants. His thought processes were ‘scrambled’. His relationship with his schizophrenic partner was very troubled, and appeared to be a source of much of his difficulty. He needed ongoing mental health attention.
Previous convictions
The appellant admitted a series of offences which resulted in court appearances and convictions between 1989 and 2005. In all, there were 18 court appearances in that period, involving very many charges. The charges included aggravated burglary, damaging property and theft. There were also multiple traffic and street offences, as well as offences of violence. On some seven occasions the appellant had been sentenced to terms of imprisonment wholly or partly suspended. He breached a number of those sentences. In all, he was treated with very considerable leniency over that long period.
Sentencing remarks
The learned sentencing judge recounted the circumstances of the present offending, the appellant’s prior criminal history, his personal background, his earlier appearance before his Honour (when sentence had been influenced by acceptance that the appellant needed psychiatric treatment) and the opinions of Mr Joblin and Dr Deacon.
Then, with respect to the significance of the appellant’s psychiatric condition, his Honour said this:
In my view, you have a psychiatric condition, which although it does not meet the test set out in Tsiaras, which was recently reviewed by the Court of Appeal in Verdins, it is a matter which reduces your culpability. In my view, a term of imprisonment is warranted, but I propose to impose a significant period of parole, and I have no doubt the Parole Board will take these matters to which I have referred into account.
His Honour next recounted the circumstances of the December 2005 offences, and immediately thereafter imposed sentence. He said nothing, specifically, about a number of sentencing considerations which were of potential relevance: just punishment, denunciation, protection of the community, general and specific deterrence, prospect of rehabilitation, and totality.
Submissions
Ground 1
Counsel for the appellant submitted that, the judge having found that the appellant suffered from a psychiatric condition which reduced his culpability, there was room for some reduction in the weight to be given to general and specific deterrence; likewise for a finding that the appellant’s imprisonment would be unusually burdensome. But examination of the sentences suggested that such matters had not been adequately brought to account.
Counsel for the respondent submitted that the learned judge had recognised the significance of the appellant’s mental health problem, and had given it due weight. So far as culpability was concerned, the evidence at best justified a small discount. The appellant’s mental state, and a desire to leave Melbourne, did not require burglary, theft and the carrying of a firearm. The plea had been made before the decision in Verdins and no connection had been drawn between the offending and the appellant’s mental disorder. There was no demonstrated basis for concluding that general or specific deterrence should be given reduced weight. Perhaps some discount could be justified on the basis that the burden of imprisonment would be greater than usual for this man – but as that had not been submitted on the plea - that would only be if the Court came to re-sentence him.
Ground 2
Counsel for the appellant submitted that there were a number of very substantial orders for cumulation, including cumulation of the entirety of the sentence imposed on the Magistrates’ Court appeal on the total effective sentence on the presentment, and the cumulation of large parts of the sentences imposed on counts 2 and 7 on the presentment on the sentence on the base count 3. There was room for cumulation in each of those instances, but the extent of cumulation meant that there was a total effective sentence which offended totality.
Counsel for the respondent described the orders for cumulation as ‘a bit odd’. But he submitted that his Honour had in the end produced an unexceptional result. He had, for instance, made the sentences on the Magistrates’ Court appeal wholly concurrent, although there had been two quite separate incidents. Again, he had made no order for cumulation in respect of the offences represented by counts 4 and 5 on the presentment. Still further, the sentence on count 7, which should be regarded as the most serious offence of all, had been lenient. In that connection, it was to be noted that learned judge had, in essence, rejected the appellant’s exculpatory account. Again, the appellant was not to know that his offending in February 2006 was not in breach of the June 2004 suspended sentence.
Ground 3
Counsel for the appellant conceded at the outset that his client was fortunate not to be facing sentence for a breach of the 2004 suspended sentence; and that he was a man with a very substantial criminal history. But he submitted that the individual sentences imposed, the orders for cumulation and the non-parole period were all manifestly excessive. The appellant had pleaded guilty and could rely on his psychiatric condition. Again, this was the first occasion on which the appellant had been sentenced to a period of substantial immediate custody. Still further, the offending had all taken place within a six week period; and there had only been infrequent offending in that period.
Counsel for the Crown submitted that there was no manifest excess in any aspect of the sentences imposed. The appellant had an extensive prior history, he had been given the opportunity to mend his ways by suspended sentences in the past, and his depression, so far as it was fed by his amphetamine addiction, was not a basis for amelioration of sentence.
Resolution of the appeal
Ground 1
Counsel for the respondent correctly observed that a very limited submission had been made on the plea with respect to the appellant’s mental condition. All that had been submitted was that a long period of prospective parole should be granted so that the appellant could obtain support outside the gaol environment – and the judge had acceded to that submission.
The judge, we consider, in fact went further than counsel had asked him to do. He noted that Dr Deacon considered that there was a loose but indirect potential association between the appellant’s offending and his mental state. His reference thereafter to ‘reduced culpability’ probably reflected his acceptance of that evidence. Although his Honour then said that he proposed to grant a significant period of potential parole, we do not think it should be concluded that he did not bring his finding to account in imposing the individual sentences and making the orders for cumulation which he did. It was to the appellant’s advantage - perhaps undeserved - that he did so. The evidence of a connection between the offending and the appellant’s mental state was weak. Further, the appellant’s moral culpability would not have been reduced insofar as his mental state was a response to illicit use of amphetamines - a matter which was far from adequately explored.
We next observe that even if it had been possible to argue that the appellant’s mental condition bore upon general and/or specific deterrence, no such submission was put below; likewise with respect to service of imprisonment for the appellant being unduly burdensome. It is not the job of a sentencing judge to deal with possible matters in mitigation which are not advanced on behalf of an accused. It is counsel’s task to bring matters to the judge’s attention. So, if his Honour did not consider the appellant’s mental condition in either of those connections, we do not consider that he fell into error. We add that, as we read the material on the plea, it is far from clear that the appellant’s mental condition did justify even a small extent of moderation of sentence by reason of a reduced role for general or specific deterrence in the sentencing exercise.
In the event, we consider that ground 1 has not been made out.
Ground 2
The sentences might have been differently structured. So, had we been sentencing the appellant, we might not have cumulated any part of the sentence on count 2 on the sentence on count 3. Perhaps, also, we might not have cumulated all of the (concurrent) sentences on the Magistrates’ Court matters on the total effective sentence on the presentment counts. But, as against that, we consider that the sentence on count 7 was lenient; and we consider also that the judge was compassionate in not cumulating part of the sentences on the two robberies in the Magistrates’ Court appeal.
But to say that the sentences might have been differently structured is not to say that the totality principle was infringed. The inescapable facts are the appellant was a man of 37[8] who fell to be sentenced (for the presentment offences and on the Magistrates’ Court appeal) for a series of criminal acts of like kind committed on four separate days against five victims. It was a type of offending in which the appellant had engaged in the past. The appellant had been shown considerable leniency by the courts, and without evidence of benefit to himself or the community. On no view was good prospect of rehabilitation demonstrated. The appellant did have mental illness; and that did require treatment. But those matters, making all possible assumptions in the appellant’s favour, remained but a small part of the total picture which bore upon sentence.
[8]At time of sentence.
We are unable to conclude, in the event, that the sentencing orders made by the learned judge, considered in whole, offended totality.
Ground 3 – Manifest excess
What we have said in respect of ground 2 is applicable to ground 3. A point was sought to be made that the appellant’s criminal conduct effectively involved four burglaries committed over a six week period, and that the individual sentences and the orders for cumulation had produced an overall sentence which was out of kilter with comparable cases. It may be accepted that, by contrast with cases involving a large number of burglaries, the sentences here imposed were relatively stern; and, as we have said, had we been sentencing the appellant we would have sentenced him in somewhat different fashion. But the appellant has not persuaded us, having regard to the unique circumstances of the offending and the offender – such circumstances being unique in every case - that the sentence which resulted from the individual sentence and the orders for cumulation was manifestly excessive.
Order
The appeal should be dismissed.
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