R v Angelopoulos
[2005] VSCA 258
•10 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 102 of 2005
| THE QUEEN |
| v. |
| LEIGH ANGELOPOULOS |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 October 2005 | |
DATE OF JUDGMENT: | 10 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 258 | |
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Criminal law – Sentence – Affray – Intentionally causing serious injury – Intentionally causing injury – Possession of unregistered firearm – Youthful offender, aged 17 years at time of offences – No prior convictions – Total effective sentence of 30 months’ detention in Youth Training Centre – Whether manifestly excessive – Relevance to sentencing in County Court of the Children and Young Persons (Age Jurisdiction) Act 2004 – Jurisdiction of Children’s Court extended from “child” offenders aged 17 years at time of an offence to offenders aged 18 years - Amendments given assent but not in operation at time of sentencing – Appellant re-sentenced to total effective sentence of 18 months’ detention in YTC.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G.T. Cannon | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Patrick W. Dwyer |
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by Eames, J.A. I agree with his Honour that ground 1A should be upheld and in the orders he proposes. For the reasons he gives, it is unlikely that any of the other grounds would have succeeded.
Section 16 of the Children and Young Persons Act 1989 provides, among other things, that, subject to s.134, the Criminal Division of the Children’s Court has jurisdiction to hear and determine summarily all charges against children for indictable offences, other than murder, attempted murder, manslaughter, arson causing death and culpable driving causing death. That jurisdiction is exclusive.[1] The sentencing orders available to the Court are set out in s.137 in ascending order of severity. The most severe disposition is to convict the child and order that he or she be detained in a youth training centre.[2] Section 189 provides, among other things, that the period of detention in respect of an offence must not exceed two years and that, if a child is convicted on the same day, or in the same proceeding, of more than one offence, the aggregate term of detention must not exceed three years. As Eames, J.A. explains, s.139 lists matters that the Court must, as far as practicable, take into account in determining which sentence to impose on a child. I agree with his Honour that it is inappropriate, in this case, to decide whether general deterrence may be relevant even though it is not mentioned.
[1]Section 17. A case may nevertheless be transferred to the Magistrates’ Court under s.16(6) or proceed to the Supreme Court or the County Court via s.134(3).
[2]Section 137(1)(j).
The word “child” was previously defined, in s.3, to mean, in the case of a person alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 17 but of or above the age of ten, but not to include any person of or above the age of 18 at the time of being brought before the Court. The Children and Young Persons (Age Jurisdiction) Act 2004 amended that definition by substituting 18 for 17 and 19 for 18. The Children and Young Persons (Miscellaneous Amendments) Act 2005 further amended the definition by substituting
“when a proceeding for the offence is commenced in the Court” for “at the time of being brought before the Court”. Both amendments came into force on 1st July 2005.
The appellant was born on 3rd July 1986 and the offences were committed on 5th June 2004, when he was aged 17 years and 11 months. The Children and Young Persons (Age Jurisdiction) Act received the Royal Assent on 9th November 2004, prior to the plea that was heard on 8th February and 1st April 2005 and the sentence that was passed on the latter date. At the time of sentence the appellant was aged 18 years and nine months. The amendments came into force two days before his 19th birthday. If the proceeding for these offences had been commenced on that day, the Children’s Court would have had exclusive jurisdiction to deal with them. The sentencing regime would have been different, the relevant factors would have been differently weighted and the sentence passed on count 2 (30 months’ detention for intentionally causing serious injury) could not have been imposed.
In those circumstances I agree that the learned judge should have given weight to the judgment by Parliament that a 17-year-old who commits offences of this kind, and who is still under 19 when a proceeding for those offences is commenced, should be dealt with as a child.[3] As Eames, J.A. points out, his Honour did not have the benefit of detailed argument on that aspect of the case and certainly not the helpful submissions that we have received from Mr Carter and Ms Cannon.
BUCHANAN, J.A.:
[3]I am simplifying slightly: the Children and Young Persons (Miscellaneous Amendments) Act, which substituted “when a proceeding for the offence is commenced in the Court” for “at the time of being brought before the Court” was not introduced into Parliament until 21st April 2005 and did not receive the Royal Assent until 31st May 2005.
I agree with Eames, J.A.
EAMES, J.A.:
This is an appeal against sentence imposed by a judge of the County Court on 1 April 2005. The appeal is brought pursuant to a grant of leave by a judge of appeal.
The appellant pleaded guilty to five indictable offences and one summary offence. The offences and the penalties imposed were as follows.
On Count 1, affray, an offence which carried a maximum penalty of five years’ imprisonment, he was sentenced to 12 months’ detention in a youth training centre. On count 2, intentionally causing serious injury, which carried a maximum sentence of 20 years’ imprisonment, he was sentenced to 30 months’ detention in a youth training centre. On count 3, intentionally causing injury, which carried a maximum of 10 years’ imprisonment, he was sentenced to 21 months’ detention in a youth training centre. On count 4, a count of possession of an unregistered firearm, which carried a maximum of seven years’ imprisonment, he was sentenced to three months’ detention in a youth training centre. On count 5, an offence of being the unlicensed owner of a firearm, which carried a maximum sentence of four years’ imprisonment, he was sentenced to two months’ detention in a youth training centre and on a summary offence of possessing a prohibited weapon, namely a slingshot, which carried a maximum of six months’ imprisonment, he was sentenced to one month’s detention in a youth training centre. Each of the last three offences carried alternative or additional penalties by way of a fine.
The total effective sentence was 30 months’ (that, is, two years six months) detention in a youth training centre.
The offences occurred on the evening of 4 June 2004. The appellant had been at a party held at premises known as “The Pavilion” in Doncaster. The party was in honour of Bryce Barker and his friend Courtney Ralph, who were planning to go on an overseas trip. The appellant, who was four weeks short of his 18th birthday at the time, was one of the youthful guests. During the evening the appellant, who appeared to be drunk, threw a glass over a balcony into a car park in front of the establishment. Bryce Barker remonstrated with him and told him that he did not want any trouble. The appellant invited Barker to hit him, but Barker walked away.
In the early hours of the next morning, as the function was coming to an end, the appellant and members of his group were yelling out in the car park and Bryce Barker approached them, in the company of his younger brother Myles Barker, who was aged 16, and with Dylan Ralph. An argument arose between Bryce Barker and the appellant which involved pushing and shoving and verbal abuse, and then Bryce Barker punched the appellant to the face. The two were separated and staff of The Pavilion arrived on the scene whereupon the appellant and his friends departed, travelling in two motor vehicles. Bryce Barker, Myles Barker, Dylan Ralph and a fourth person left The Pavilion and walked up Doncaster Road.
The appellant told the occupants of the car in which he was travelling that he had been injured by Barker. The learned sentencing judge found that the appellant was angry and wanted retribution for the earlier incident. His friends tried to dissuade him from doing anything, but the driver agreed to return him to The Pavilion. As they were driving to The Pavilion they came upon Barker and his two companions in Doncaster Road. The appellant used a mobile phone and requested friends to attend the area to provide assistance to him. In response to his request, a vehicle with a number of young men did join the appellant and the occupants of his car at the scene. In all, some eight young men were present as companions of the appellant.
At some point the appellant asked to get his jacket from the boot of the car in which he was travelling. In the boot was a bag of sports gear owned by the driver. Among the equipment was an aluminium baseball bat. The appellant took the bat, hid it under his jacket and re-entered the car. The sentencing judge did not find that the appellant went to the boot knowing that the baseball bat was present, and for the purpose of obtaining it as a weapon. Nonetheless, having seen it he took it for that purpose.
At the scene of the attack the two motor vehicles containing the supporters of the appellant stopped near Bryce Barker, Myles Barker and Dylan Ralph. Bryce Barker went to the first car and was speaking to the driver, who was known to him. Whilst he was doing that the appellant got out of the other car, and ran in the direction of the three men, none of whom saw him approaching. The appellant firstly struck Dylan Ralph then Myles Barker, to the head, with the baseball bat. Dylan was struck from behind and fell to the ground. Whilst Bryce Barker was standing at the window of the other car the appellant struck him to the head and then repeatedly and forcefully hit him with the bat to his head and body.
The blows to all victims were of such force as to make a distinct sound, heard by witnesses. One described a sound of metal on bone heard from some metres away, and one occupant of the cars said of the attack on Bryce Barker that Barker did not stand a chance to do anything, as the appellant kept hitting him with the bat.
A witness said that after the second or third blow Bryce Barker fell to the ground, whereupon the appellant kept hitting him whilst he was on the ground. Myles Barker said that his brother had been hit probably 12 to 15 times with the baseball bat. Whilst Bryce Barker was lying motionless on his back on the road the appellant, according to Myles Barker, stood over him, raising the bat to head height and then forcibly striking Barker to the head as he remained motionless on the ground. Myles Barker tried to assist his brother and was subjected to blows from some of the other men who were present at the scene. He threw himself on top of his brother to shield him from more blows. Myles Barker said the appellant when hitting his brother whilst Bryce was on the ground was using a lot of force, as though he was chopping wood. He thought his brother was dead.
Given the ferocity of the attack, as found by his Honour to have taken place, the injuries sustained by Bryce Barker were surprisingly moderate. However, the fact that he suffered serious injury was admitted by the appellant’s plea to that count. The serious injury was constituted by bruising and swelling to the right eye, a broken left thumb, bruising and swelling to his back and legs and a large cut to the back of his head, which required stitches. Bryce Barker was aged 23 at the time.
Dylan Ralph, who was aged 25 years, sustained a cut to the right side of his head requiring stitches, and several days after the attack was still experiencing dizziness and headaches together with a blocked left ear and tenderness to the right shoulder.
Bryce Barker and Dylan Ralph were taken to hospital by ambulance, but were not admitted.
There was no charge of assault directly identifying Myles Barker as a victim but it was accepted on the plea that the injuries suffered by him were relevant to the charge of affray. Myles Barker was also taken to hospital, having sustained bruising to his left thigh and a corked muscle, together with bruising to the back of his head and above his left eye and soreness to his chest and abdomen.
Police arrested the appellant on 11 June 2004 and when searching his room found a PVC pipe gun, which led to him being charged on counts 4 and 5. They also found the slingshot, out of which arose the summary offence. When interviewed by police the appellant gave a ‘no-comment’ record of interview.
There were three original grounds of appeal, as follows:
“1.The learned sentencing judge erred in the application of the principles governing the sentencing of young, first offenders by:-
(a)finding that ‘[t]he nature of your conduct means that any sentence less than one in which you are deprived of your liberty would not properly recognise the severe nature of your crimes’;
(b)failing to consider, or give due weight, to the potential counter-productivity (to the appellant and the community) of a YTC sentence;
(c)not considering the availability and nature of community based sanctions; and
(d)failing to find that the appellant’s level of moral culpability was mitigated, to an extent, by:-
(i)provocation; and
(ii)intoxication.
2.The learned sentencing judge erred by giving undue weight to the potential consequences of the offences.
3.The individual and total effective sentences are manifestly excessive and manifestly inappropriate.”
In the course of the hearing of the application an issue arose which led counsel to apply to amend the grounds of appeal by the addition of a new ground, 1A. The Court granted leave and the new ground reads as follows:
“1A.The learned sentencing judge erred in failing to have any regard to the implications of the passing of the Children and Young Persons (Age Jurisdiction) Act 2004 (Vic) (’AJA’), including the purposes that govern the sentencing of children that are contained in section 139(1) of the Children and Young Persons Act 1989 (Vic) (’CYPA’).”
Ground 2
I commence with ground 2, although it overlaps with matters raised by grounds 1(a) and 3.
On submissions on the plea counsel who then appeared for the appellant told the judge that the appellant had said to his friends that he had been assaulted and was not happy about it, and wanted to “sort it out”. Counsel said that the more the appellant thought about what had occurred with Bryce Barker the angrier he had got, but he had not gone to the boot specifically to get the baseball bat and it was merely fortuitous that it was there when he opened the boot to get his jacket.
Counsel submitted to his Honour that the assault was attributable to a lot of alcohol being consumed, which had fuelled the appellant’s rage. Counsel submitted that the explanation for his conduct lay with both alcohol and what he called the “slight provocation” from Bryce Barker. He accepted that it was the appellant who initiated the assault, and that he kept it up until he thought that there was no chance that he would be punished by his victim. Counsel said to the sentencing judge that it was not contended that the appellant committed the assault believing that he was under any threat from the victim. The following exchange then occurred, which gives rise to the complaint to be found in ground 2.
“HIS HONOUR: I wonder if he realises how lucky he is that he’s not sitting in the dock in the Supreme Court on a murder charge.
COUNSEL:That’s something I’ve discussed with [him] and his mother and father.
HIS HONOUR: I hope that that’s penetrated his mind.
COUNSEL:Indeed. Because as has been indicated in the opening by my learned friend, given what the prisoner did or attempted to do in particular [to] the older brother it is amazing that only a six inch laceration and various bruising has been the result of it.”
His Honour observed that the offences were very serious and he said, “You could easily have been before the Court on even more serious charges.”
Mr Carter submitted that these remarks suggested that his Honour had sentenced the appellant for what might have been, rather than what were the consequences. I do not accept that. In my view, his Honour’s remarks were not only perfectly understandable but his Honour merely stated a proposition which had been accepted by counsel in the course of submissions.
A sentencing judge is of course obliged to assess the seriousness of the consequences of an attack upon the victim but the seriousness of the offending is not to be judged solely by the consequences to the victim which were actually suffered. A sentencer might quite appropriately have regard to the potential for even greater consequences to have arisen out of the conduct. Indeed, for victims the thought of what might have been would often be a particular cause of anxiety.
The sentencing judge was entitled to have regard to the totality of the criminality of the conduct in which the appellant engaged. The actual severity of the injuries suffered is one important consideration, and the fact that injuries were not of great severity might well be a mitigating factor in some instances, but the appellant was admitting that in the one incident he intentionally caused serious injury to one victim, intentionally caused injury to another and also admitted to affray, another serious offence. The observations made by his Honour were not only entirely understandable they were relevant to sentencing.
The impact of the offences on each of the victims was by no means as serious as it might have been, but in each case the impact was not trivial, either. Victim impact statements were filed and considered by the judge. In his sentencing remarks his Honour noted that Bryce Barker had been unable to work for two months after the assault and continued to suffer constant head pains. Dylan Ralph had a scar to the side of his head and occasional headaches and had lost work for a week and Myles Barker had lost his job as a chef because his employer would not give him time off to recover from his injuries. He also said that he was apprehensive when going out socially, as a result of witnessing the attack on his older brother.
I see no error in what his Honour said in the passages highlighted under this ground.
Ground 1(d)
His Honour noted that the consumption of alcohol and cannabis prior to the offences did not prevent the appellant from having his wits about him sufficiently to make arrangements for a number of other people to come to his support, nor did it impair his ability to plan what he intended to do, or to hide the baseball bat under his jacket. All of that conduct suggested that he had given thought to revenging himself on his victims. His Honour noted that the assaults were sustained and cowardly, and he added: “It is of real concern that you could act with the viciousness you displayed.” His Honour concluded that the only possible explanation for what occurred was that the consumption of alcohol had dis-inhibited him, but his Honour said, “That is not any excuse for your conduct.” His Honour accepted, however, that the appellant’s behaviour was out of keeping with his character before and after the assault and accepted that it “may be that alcohol and drug use reduced your usual discipline, allowing you to act as you did”.
It was submitted that his Honour rejected, altogether, factors of mitigation by reference to provocation or intoxication. Counsel accepted that there is no rule that intoxication was necessarily a mitigating factor but submitted that it nonetheless could be, in certain circumstances, in particular where a youthful first offender was involved: see R. v. Walker[4] and R. v. Groom[5]. As Hayne, J.A. noted in Walker the fact that an offence occurred whilst the offender was drunk may offer an explanation, in that the offence might not have occurred had he been sober. The fact that an offender was under the influence of liquor at the time of the offence might also have relevance in explaining why a person of otherwise blameless character did something out of character, thereby constituting both an explanation for the offending and a factor relevant to mitigation[6].
[4]Unreported, 31 May 1996.
[5][1999] 2 V.R. 159 at 164 [22]-[24] per Batt, J.A.
[6]See R. v. Sewell (1981) 29 S.A.S.R. 12.
The judge said, “Whether you thought you were evening the score for what happened earlier does not excuse, explain or justify what you did, in any way”. Mr Carter submitted that the judge thereby did not give any weight at all to the provocation suffered by the appellant. That factor bore on the moral culpability of the appellant, he submitted, particularly when regard was had to his youth and to his intoxication.
In my opinion, however, his Honour did not unduly dismiss the factors of intoxication or provocation. He accepted that the offences occurred when the appellant was extremely drunk. His Honour acknowledged that the appellant had told psychologist Mr Joblin that he had ceased the use of alcohol and drugs since these offences. The judge said he accepted that since the offences the appellant had behaved appropriately. Given the concession made by his counsel in the court below that there was only “slight provocation” it is understandable that his Honour gave little weight to that factor. Furthermore any provocation ought to have dissipated long before the offences occurred. As to intoxication, the offences disclosed a degree of planning and clear, if angry, thought. The judge was entitled to conclude that this was not an instance where moral culpability was reduced because of intoxication.
I am not persuaded that his Honour’s approach to these issues disclosed sentencing error.
Grounds 1 (a)(b)(c)
The primary complaint under ground 1 was that the judge failed to give adequate weight to the principles concerning the sentencing of a youthful offender. Counsel submitted that the sentencing judge although stating that rehabilitation would be given precedence, failed to do so when imposing sentence. Whilst accepting that the offences were serious, Mr Carter correctly submitted that that had to be balanced against other factors. He had no previous convictions, had pleaded guilty, showed remorse, had previous good character (supported by witness statements) and, as his Honour found, had reasonable prospects of rehabilitation. Added to those mitigating factors, the events occurred whilst he was intoxicated, and when he was suffering anxiety about a critical illness of a close relative. He had been provoked by being punched by Bryce Barker, counsel submitted, and the injuries inflicted by the appellant were not as serious as they might have been. All of those factors dictated that the appellant deserved a chance, by not being incarcerated at all, Mr Carter submitted. Counsel submitted that this Honour, in effect, put to one side all other options for sentencing save for incarceration. His Honour therefore fell into error by not giving appropriate consideration to a community based sentence.
Mr Carter emphasised the youth of the appellant and submitted that his Honour attached far too little weight to that factor, and rejected out of hand any alternative sentencing dispositions save for detention. This, Mr Carter submitted, constituted error in principle.
In the course of a discussion with the sentencing judge as to the appropriate disposition of the case, counsel who then appeared for the appellant noted that the appellant was physically not a large person and that he was not a forceful personality. He submitted that it would be totally inappropriate for the appellant to be sentenced to a period in an adult prison[7] but submitted that in order that an immediate custodial sentence be avoided he had no option but to ask that a suspended sentence of imprisonment be imposed, notwithstanding the fact that one outcome of that would be that should the suspended sentence be breached he would serve the sentence in an adult prison. Counsel asked for that option, however, together with a community based order.
[7]Counsel did not address the power of the Adult Parole Board, under s.244 of the Children and Young Persons Act 1989, to transfer a prisoner aged under 21 years from prison to a Youth Training Centre.
Although complaint is made under this ground that his Honour failed to consider the counter-productivity of detention in a youth training centre, when regard was had to prospects of rehabilitation, the judge was clearly alert to those considerations. His Honour ordered a report concerning the appellant’s appropriateness for detention in a youth training centre, and upon resumption of the plea, when the report was before the court, counsel acknowledged “these are extremely serious matters and it’s more by luck than anything that we’re not dealing with a deceased person or persons”. Counsel continued: “So it is appropriate that some form of incarceration be imposed by Your Honour”, but then repeated his contention that it should be a wholly suspended sentence of imprisonment, together with a community based order. His Honour expressed concern at the submission that a sentence of imprisonment be imposed on a person who was then only 18 years of age.
His Honour had regard to the pleas of guilty, to the youth and good character of the appellant, to his recent employment and to his remorse. He accepted the opinion of the Court Advice Officer that the appellant had shown insight into the effect of his conduct on his victims and was both ashamed and remorseful. The Court Advice Officer assessed him as suitable for a youth training centre order in the event that the court deemed incarceration appropriate.
His Honour accepted, in accordance with the principle stated in R. v. Mills[8], that the main aim of the sentence was the rehabilitation of the appellant. His Honour said however that that did not mean that other sentencing factors, in particular general deterrence and specific deterrence, were to be ignored, but rather that his rehabilitation would take precedence over those considerations. His Honour described the attack as frenzied, cowardly and vicious.
[8][1998] 4 V.R. 235.
His Honour said:
“The nature of your conduct means that any sentence less than one in which you are deprived of your liberty would not properly recognise the severe nature of your crimes. I accept the observations made by Mr Bell in the pre-sentence report about your potential for rehabilitation. I am also satisfied that you are young and impressionable and that adult prison would subject you to undesirable influences. I accept that you have reasonable prospects of rehabilitation. It is for these reasons that I intend to sentence you to youth training centre detention.”
In adopting the approach he did towards general deterrence his Honour was applying well recognised principle when sentencing youthful offenders convicted of serious crimes of violence. In DPP v. Lawrence[9] Batt, J.A. when dealing with a contention by the Director of Public Prosecutions that the youth of an appellant had been given undue weight as opposed to factors of general and specific deterrence, and upon reviewing relevant authority, said this:
“Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence.”
[9](2004) 10 V.R. 125 at 132 [22].
The circumstances of both the offender and the offences in Lawrence were much more grave than in this case. Nonetheless, save for the matters which I will address under ground 1A, the principles there stated would have been entirely applicable to the present case and the complaints raised in grounds 1(a)(b)(c) could not have been upheld.
I turn, then to consider the matters raised under ground 1A.
Ground 1A: The Children and Young Persons (Age Jurisdiction) Act 2004
In the course of submissions on penalty which were made on 8 February 2005 counsel then appearing drew to the attention of the judge that on 9 November 2004 the Children and Young Persons (Age Jurisdiction) Act 2004 (“the AJA”) had received assent. He advised the judge that its purpose was to raise the jurisdictional age limit for offenders appearing in the Children’s Court from those aged under 17 years at the date of committing an offence to those aged under 18 years. The legislation, he submitted, made it clear that it was Parliament’s intention that a person aged under 18 years at the time of offending ought be dealt with in the Children’s Court. Counsel submitted that in the Children’s Court heavier emphasis was placed on rehabilitation than in adult courts.
His Honour responded that by virtue of the factors identified in s.5 of the Sentencing Act 1991 rehabilitation was to be given a great deal of weight, in any event, for young offenders and that the approach in an adult court was not going to be greatly different from that in the Children’s Court. Counsel did not press the matter after that response from his Honour and the judge did not receive the benefit of the detailed argument made before us by Mr Carter as to the significance of the new legislation and its relevance for the sentencing of the applicant. Having considered that argument, and the helpful submissions made on behalf of the respondent, I am persuaded that his Honour inadvertently fell into error in the approach he adopted to the legislation.
The AJA did not commence operation until 1 July 2005[10], two days before the 19th birthday of the applicant. By virtue of the amendments it made to the definition of “child” in s.3, the Children and Young Persons Act 1989 thereafter applied to an offender who was aged under 18 years at the time of the offence. Mr Carter did not contend that the amended provision directly applied to the applicant; that was not the case[11]. The passage of the legislation did, however, signal the intention of Parliament that an offender who was aged 18 years at the time of the offence be dealt with in the Children’s Court and by reference to the sentencing principles applicable in that court. Indeed, in his Second Reading Speech[12] the Attorney-General expressly asserted that there was a difference between the emphasis given to welfare and rehabilitation of offenders in the Children’s Court and that given in an adult court, and that it was intended that youthful offenders up to 18 years would benefit thereby and by the wider range of dispositions which were available to the Children’s Court and were targeted to young offenders.
[10]S.2(2).
[11]The effect of transitional provisions was that the amended definition of “child” in s.3 of the Children and Young Persons Act applied to proceedings for an offence commenced on or after the commencement of the amended provision.
[12]Hansard, Legislative Assembly, Second Reading Speech, 16 September 2004, 566-7.
As Mr Carter emphasised, the Children’s Court was directed by s.138 of the Children and Young Persons Act not to impose a sentence of detention unless it had excluded all other options as being appropriate. He submitted that the factors which the Court was obliged by s.139(1) to take into account when sentencing an offender did not include general deterrence. Mr Carter submitted that general deterrence was therefore not a relevant sentencing factor for an offender appearing in the Children’s Court, that being a consideration that ought to have led the judge to reduce the weight which he might otherwise have given, and did give, to that factor when sentencing the appellant as an adult.
In contending that general deterrence had no relevance in sentencing an offender in the Children’s Court Mr Carter placed weight on decisions in South Australia relating to similar legislation: see R. v. S and R. v. Wilson[13]. In those cases that conclusion is said to derive from the terms of s.7 of the Children’s Protection and Young Offenders Act 1979 (S.A), a provision which was in similar, but not identical terms to s.139(1). One significant difference was that the opening words of the South Australian provision, in elaborate language directed to securing, inter alia, the “care, correction, control or guidance” of the child, focussed attention of the sentencer on the development of the individual child. Equivalent opening words do not appear in s.139(1), but the individual paragraphs of s.7 which then specified the factors to be taken into account in sentence were in very similar language to those in s.139(1). In both provisions one factor was “where appropriate[14], the need to protect the community, or any person, from the violent or other wrongful acts of the child”. That phrase, repeated in s.139(1)(g) was held by King, C.J. and Zelling, J. in R. v. S and by Wells, J., White, J. and Bollen, J. in R. v. Wilson to manifest an express intention of Parliament to exclude general deterrence. Matheson, J. disagreed[15], observing that the words of s.7 required only that the sentencer “shall consider the following factors” which were then listed, but did not confine the sentencer to those factors. Similarly, in s.139(1) the Court is directed that it “must, as far as practicable, have regard to”, the factors then listed, but the Court is not expressly confined to consideration of those factors.
[13]See R. v. S (1982) 31 S.A.S.R. 263, at 265-6, per King, C.J., at 268, per Zelling, J., Matheson, J. disagreeing at 269-270; R. v. Wilson (1984) 35 S.A.S.R. 200, at 203-4, per Wells, J., at 205, per White, J., at 207, per Bollen, J.
[14]S.139(1)(g) reads “if appropriate”.
[15]R. v. S, at 269.
In R. v. PP[16] Callaway, J.A., with whom Winneke, P. and Buchanan J.A. agreed, considered the case of a person who had been sentenced for manslaughter after a trial in the Supreme Court. The offender had been 15 years old when the offence occurred and had been sentenced to imprisonment rather than detained in a youth training centre. Callaway, J.A. rejected a submission that general deterrence had no place in sentencing a juvenile and concluded that any or all of the sentencing purposes stated in s.5(1) of the Sentencing Act 1991 were relevant, although much more emphasis would be given to rehabilitation when sentencing a juvenile than other factors, including general deterrence[17]. In acknowledging the weight to be given to rehabilitation when sentencing a juvenile the approach adopted by Callaway, J.A. was broadly consistent with that stated by Vincent J.A. in R. v. Evans[18] a decision to which Mr Carter referred the Court. In that case the Court was concerned with an adult offender who complained about the disparity of his sentence with that of an offender sentenced in the Children’s Court to detention in a youth training centre. Vincent, J.A., without expressly discussing whether general deterrence was a relevant factor, discussed the “elaborate system” developed for dealing with juvenile offenders. In a passage in which he footnoted s.139 as the section to which he was directing attention, Vincent, J.A. held that:
“Whilst, broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. In addition the Children and Young Persons Act 1989 (Vic) sets out a number of matters to which a sentence in the Children’s Court must have regard and which differ in kind and emphasis from roughly similar provisions in the Sentencing Act 1991 (Vic).”[19]
[16](2003) 142 A. Crim. R. 369, at 374-6.
[17]At [9] and [13].
[18][2003] VSCA 223, at [44]. Ormiston, J.A agreed generally with the observations of Vincent, J.A. concerning juvenile offenders, but concluded that the parity complaint was not made out. He observed, at [5] that “One of the virtues, however, of the Children’s Court system is that the court can make special allowance for factors which would otherwise be irrelevant under the Sentencing Act”, and, at [6], that the different responsibilities and powers of the Children’s Court enabled it to provide “special benefits” to a juvenile offender. Batt, J.A agreed with Vincent, J.A and concluded that although a parity complaint could not strictly be maintained it was appropriate to give some, but not great regard to the sentence imposed on the juvenile when deciding the appropriate sentence for the adult who was only a few months older.
[19]R. v. Evans, at [44],
Vincent J.A. further observed that the system in the Children’s Court recognised the need to divert children from anti-social conduct at an early age and in doing so dispositions would be adopted at times that would be entirely inappropriate to more mature individuals.
Having regard to the acceptance of Mr Carter that the Children and Young Persons Act did not apply to the appellant it is unnecessary to elaborate on the place of general deterrence in the sentencing of a juvenile offender. It is sufficient to conclude, as I do, that sentencing error, albeit unintended, is disclosed by virtue of the judge wrongly concluding that the sentencing approach which would have applied in the Children’s Court under the amended legislation would not have been greatly different to that which an adult court would adopt to a young offender. In my view, the learned sentencing judge ought to have had regard, in a general way, to the fact that but for the amending legislation not having come into effect the appellant would have been sentenced in the Children’s Court and in that event general deterrence would have been given much less weight than his Honour accorded that factor when sentencing the appellant.
That conclusion would be sufficient to re-open the sentencing discretion but it is convenient to also address the complaint of manifest excess, which was raised under ground 3.
Ground 3: Whether manifestly excessive sentences.
Counsel submitted that although the legislative change to the jurisdiction of the Children’s Court did not directly apply, regard ought be had to what disposition would have been likely had he been sentenced in the Children’s Court. Counsel submitted that a total effective sentence of two-and-a-half years’ detention in a youth training centre was manifestly excessive in itself and would not have been imposed had he been sentenced in the Children’s Court.
The appellant was born on 3 July 1986 and was 17 years of age, nearly 18, at the time of the attacks. His Honour accepted the evidence of forensic psychologist Ian Joblin that the appellant did not have a chronic anti-social problem. The appellant came from a good home, no members of his family ever being in trouble with the police. He had no prior convictions and had completed Year 11 at a TAFE and then assisted his parents in their business as a canteen operator. As a result of that he did not complete his Year 12 in 2004.
On the plea before the judge counsel called the parents of the appellant, who gave evidence that he was remorseful, that he had obtained a job since these events, had stopped his practice of staying out late at night, and had ceased his association with his friends. At the time of the plea the appellant had been employed with a tradesman for approximately a week. There were other factors, too, which operated to mitigate sentence in this case: the pleas of guilty were entered at the earliest available opportunity and the judge accepted that there was evidence of remorse.
Having acknowledged that there were many mitigating factors, it remains that this was a particularly savage series of assaults and a very serious affray. Notwithstanding the apparent effect of alcohol (and, possibly, also cannabis) on the conduct of the appellant, there was a degree of deliberation and planning involved, which meant that the offence was much more than an instinctive reaction of a drunken youth.
Although no challenge was made to the length of the individual sentences Mr Carter did contend that the overall sentence had been unduly influenced by the judge’s concern about the offences in counts 4 and 5. As counsel pointed out, there was no allegation that the PVC pipe gun and slingshot had been taken from his home by the appellant, nor was there any evidence as to whether they had been used at all, nor as to the appellant’s purpose in possessing them. Had those counts stood in isolation then the sentences imposed thereon would, in my view, have been manifestly excessive. However, they did not stand on their own.
His Honour had to consider the weapons offences in the context of a person who had used a weapon and who had been assessed by Mr Joblin on the basis that “it appears that during the period leading up to the time of the offences there was a high probability that he was deteriorating in his functioning and part of that was related to alcohol abuse.” The appellant told Mr Bell (the Court Advice Officer, who prepared a report as to YTC) that “when I am angry I get really angry, but not that often” and he said that on the night of the offence he had experienced a loss of face in the company of his peers and he was embarrassed and became angry.
He was not to be sentenced on the weapons charges on the basis that he used or intended to use them at all, let alone in a hostile manner. Nonetheless, the fact that he chose to possess such weapons could not be accorded an entirely innocent character; he was not to be treated as a hobby collector, for example, but, rather, he possessed them as a person capable of extreme violence.
It is often the case that a youthful first offender would be given a chance before a sentence of actual imprisonment would be imposed. However, had the appellant been sentenced to adult imprisonment for these offences he might have expected at least as heavy a sentence to be imposed as was imposed by way of detention. In making an order for youth training centre detention the judge was not ignoring youth and prospects of rehabilitation; he was guided by those considerations.
This was a stern sentence for a first offender, but the circumstances of the offending were particularly serious and the judge was right to emphasise that fact. Had it not been for the factor raised under ground 1A, and notwithstanding the good prospects for rehabilitation of the applicant, I would not have been inclined to intervene on sentence. I am, however, persuaded that there ought be some amelioration in sentence. The judge gave emphasis to general deterrence and whilst that remains a relevant consideration, because the applicant falls to be sentenced in an adult court, it is appropriate that less weight be given to it as a sentencing factor, having regard to the matters I have discussed.
In assessing the appellant’s prospects of rehabilitation for the purpose of re-sentencing I have also had regard to the contents of a custodial progress report dated 9 June 2005, which was tendered on behalf of the appellant for the purpose of re-sentencing, if appropriate. Counsel for the respondent did not oppose the Court making use of that report in the event that we did re-sentence the appellant. The author of that report Ms Kerrie Penny, Case Manager of Coliban Unit, whose opinion was endorsed by Ms Tania Morton, Unit Manager, reported that the appellant had demonstrated remorse and had engaged in a range of educational and training programs. He had generally displayed excellent behaviour and attitude towards his sentence and was benefiting from the support of his parents and stable friendships. That report confirms that his prospects for rehabilitation are, indeed, good.
I would affirm the sentences imposed on all counts save for the sentences on counts 2 and 3. On count 2, I would set aside the sentence of 30 months’ detention and substitute a sentence of 18 months’ detention in a youth training centre. On count 3, I would set aside the sentence of 21 months’ detention and substitute a sentence of 15 months’ detention. That would produce a total effective sentence of 18 months’ detention in a youth training centre. I would affirm all other orders made by the judge.
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CERTIFICATE
I certify that this and the preceding 20 pages are a true copy of the reasons for judgment of Callaway, Buchanan and Eames, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 10 November 2005.
DATED the day of 2005.
Associate
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