R v Blennerhasset
[2002] VSCA 218
•19 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 164 of 2002
| THE QUEEN |
| v. |
| EARL ROSS BLENNERHASSET |
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JUDGES: | PHILLIPS, C.J., CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 December 2002 | |
DATE OF JUDGMENT: | 19 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 218 | |
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Criminal Law – Appeal against sentence – Child sexual offences – Further offences committed in breach of Community Based Order – Whether counsel at trial should have been made aware that save for “most exceptional circumstances” a prison term would result – Whether trial counsel deprived of a proper opportunity to shape submissions – No evidence that trial judge acted on basis submitted – Sentence not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Kerri Judd | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. S. Gillespie-Jones | Paul A. Vale, Solicitors |
PHILLIPS, C.J.:
The appellant, who is aged 30, pleaded guilty to two presentments in the County Court at Melbourne on 22 July 1999. The first presentment, numbered M.00740704, contained five counts. Counts 1 to 3 were counts of common assault committed on different children at Kilsyth on 25 February 1998 (count 1); Kilsyth on 26 February 1998 (count 2) and Croydon on 15 March 1998 (count 3). In each case there was no physical touching of the children, who were girls, but they were put in fear by the appellant’s conduct. These offences each carried a maximum penalty of five years’ imprisonment.
Count 4 was a count of attempting to commit an indecent act in the presence of a child, a boy, under 16 years. This was committed at Lilydale between 1 and 26 January 1999. It also carried a maximum penalty of five years’ imprisonment. Count 5 was a count of child stealing of a child under 16. This was committed at Lilydale on 20 March 1999 and involved a girl. This offence also carried a maximum penalty of five years’ imprisonment.
The second presentment was numbered L.2611550 and contained one count of wilful and obscene exposure. This offence was committed at Lilydale on 28 August 1998 and the judge was at large as to penalty.
The appellant also pleaded guilty to a summary offence of harassing a witness. This was committed at Lilydale on 6 November 1998 and carried a maximum penalty of 12 months.
The appellant had no prior convictions and after a plea for leniency and obtaining pre-sentence reports from a Dr Lester, dated 16 August 1999 and a Mrs Ricketson, a Senior Community Corrections Officer, dated 23 August 1999, the appellant was sentenced as follows on 2 September 1999: a Community Based Order was made with conviction on each of the offences committed. This order was to continue in force for two years. Its conditions included – performance of 200 hours of community based work; supervision of a Community Corrections Officer and the undergoing of psychiatric or psychological treatment and participation in the CORE sex offenders programme as directed. The appellant was also to reside with his mother.
On 1 January 2001 and 29 January 2001 the appellant committed two more offences. These were making child pornography and knowingly possessing the same. He was dealt with at Ringwood Magistrates’ Court on 27 April 2001 where he was convicted and sentenced to be imprisoned for 90 days on the first charge and released on a Community Based Order on the second.
On 26 June 2002, the appellant appeared for the sentencing judge on a breach of the Community Based Order of 2 September 1999. After hearing counsel for the Crown and the appellant, the learned judge sentenced the appellant as follows:
1. For breach of the Order he was convicted and fined $250.
2. On each of the counts 1, 2, 3 and 4 he was sentenced to be imprisoned for two months.
3. On count 5 he was sentenced to be imprisoned for four months.
His Honour directed that one month of each of the sentences on counts 1 to 4 be served cumulatively on the sentence on count 5 making for a total effective term of eight months’ imprisonment.
As to count 1 on the second presentment, his Honour imposed a sentence of one months’ imprisonment to be served concurrently with the sentence on the first presentment. He did not, apparently, address a penalty for the summary offence, but a sentence of one months’ imprisonment concurrent with the other sentence appeared on the Return of Prisoners.
The appellant later lodged notice of application for leave to appeal against sentence. After some amendment the grounds presently read:
“1.In all the circumstances the sentence imposed is manifestly excessive.
2.The learned sentencing judge erred in failing to supply a copy of reasons that had been given at the time of the imposition of the Community Based Order to:
(a)counsel for the applicant
(b)the prosecutor
during the proceedings for the breach of the Order.
3.A breach of procedural fairness was occasioned by the failure to supply counsel for the applicant in the proceedings of the Community Based Order a copy of the reasons for its imposition (not being the same counsel as on the imposition).
4.The learned sentencing judge erred in failing to raise his reliance upon statements in the sentencing remarks should the Community Based Order then imposed be breached with
(a) counsel for the applicant
(b) the prosecutor
on the proceedings for the breach.
5.The learned sentencing judge
(a)erred in failing to raise with either the prosecutor or counsel for the applicant on the hearing for the breach of the Community Based Order (neither of whom were present at the imposition of the Community Based Order) the prospect of the imposition of a substantial custodial sentence;
and
(b) a miscarriage of justice was thereby occasioned.”
On 23 August last the applicant was granted leave to appeal. It is now appropriate to give a summary of the facts of his offences. In this exercise I have had resort to the summary of evidence supplied to the Court.
Re Presentment No. M00740704
On 25 February 1998 at approximately 3.50 p.m., the Appellant followed a girl of 12 years, while she was walking along Mount Dandenong Tourist Road, Kilsyth. He then initiated conversation with her, telling her “she was very pretty” and asking her if she “would like to make love this afternoon”. He continued to walk with her until she came to a shop where she went inside and informed the shopkeeper that she was being followed. Some people then approached the Appellant and he left the scene. stated that she was scared and wondered what was going on (count 1).
On 26 February 1998 at approximately 4.00 p.m., he followed a girl of 12 years, on his bicycle while she was walking along Durham Road, Kilsyth after school. He initiated conversation with her, asking her for her name, address and telephone number and whether she would like to go to a party with him that night. She gave him false particulars and ran home to her mother. She stated that she was scared and that he had kept looking at her (count 2).
On 18 March 1998 at approximately 4.00 p.m. the Appellant followed a girl of like age while she was walking home from school along Mount Dandenong Road, Kilsyth. He rode up behind her forcing her to move over to let him pass. He then asked her if she would like to “make love that afternoon”. She told him no. He persisted in asking her, telling her “it only tickles”. She told him to “piss off” and ran home (count 3).
Between 1 January 1999 and 16 January 1999, the Appellant was working at Gumleaf Aeromatics at 128 Beresford Road, Lilydale. He approached a boy aged 12 years, and asked him if he ”had ever cracked a fat over a girl”. The boy was disturbed and confused by this. The Appellant continued to talk about masturbation. On the following day the Appellant again approached the boy, and asked him whether he had tried masturbating. The child said no and the Appellant then told him to get up on the table and he would show him how to do it. The boy was scared and said he didn’t want to do it. He was told not to tell his parents. On 17 March 1999 he told his sisters what had happened (count 4).
On 29 March 1999 the Appellant was present at the Seventh Day Adventist church in Hull Road, Lilydale. He approached M.B., a girl aged 11 years, and asked her to accompany him outside. She followed him, believing that she was going to be told off for talking in church. He told her to “stay there”. He then entered the male toilets and on his return, grabbed her by the hand and instructed her to accompany him into the toilets with him. At this point she screamed and pulled away from the Appellant who released his hold on her. She then ran into the female toilet where she waited for some time. Eventually she returned to church, visibly upset and sat with her mother. The Appellant also resumed his seat next to his girlfriend. The child pointed the Appellant out to her mother and told her what had happened. When confronted outside the church, the Appellant gave a false name and address (count five).
At approximately 5.50 p.m. on 28 August 1998, the Appellant was at home in his bungalow in the rear of 13 Carmen Court, Lilydale. Four young children aged 12 years, aged 10 years, aged 7 years and aged 2 years, were playing in the rear garden next door. There were no adults present. The Appellant opened the front door of his bungalow, approximately 10 metres from where the children were playing. He then unzipped his trousers and began to masturbate in full view of the children. They ran in to their mother bit by the time she came outside he had closed the door. The Appellant later stated that he had deliberately masturbated in front of the children to get their attention and because he got sexual gratification from doing so (count 1).
On 6 November 1998, the mother of a child involved in the previous incident, was mowing her lawn near to where the Appellant lived. When she was about 3 or 4 metres from the fence she noticed the Appellant standing right next to the fence. He was holding a camera to his face and pointing it directly towards her. She felt scared and harassed (summary offence).
The Appellant made full admissions when interviewed by the police.
Mr Gillespie-Jones, for the appellant, began his submissions by stating that it was common ground between the parties that neither counsel at the proceeding from which this appeal arises, had a copy of the reasons for sentence which had been given in September 1999. In the course of those reasons, counsel continued, the learned sentencing judge (who was the same judge dealing with the breach) had said to the appellant “…should you breach any of these conditions you will be brought back before me for further sentencing and that save in the most exceptional circumstances that would mean, in all probability, a term of imprisonment. Do you clearly understand that?” (The appellant had replied “Yes, Your Honour”.)
In the breach proceeding, counsel pointed out the learned judge said the following in his reasons for sentence:
“This Court has re-read its sentencing remarks in this matter and notes the very clear warning that you were given should you re-offend…As I said, you were given a chance and I told you quite clearly that the future was in your own hands. You did not accept the chance that I gave you.”
As to these matters, Mr Gillespie-Jones submitted that the learned judge
(i)Should have told counsel what he had said at the previous hearing and given them a chance to address it, i.e. defence counsel should have been told that his Honour was looking for “most exceptional circumstances” to be shown if prison was to be avoided.
(ii)Had “fettered his discretion” in relation to the sentence to be imposed on the breach. (It was said ground 5 embraced this matter.)
It was further submitted that:
(iii)This Court should infer that the defence counsel on the breach was “blissfully unaware” that his client was in danger of being imprisoned.
Further, it was submitted that counsel on the breach (who were not those who appeared on the plea), had not been informed of the reasons for sentence of 2 September 1999. It was of relevance, it was said, to note their respective attitudes. Counsel for the appellant submitted to the judge, “Your options are to confirm the CBO and impose a monetary fine, or, in my submission, if Your Honour was considering above that, would be to suspend any gaol term that Your Honour did impose.” (4) The Crown Prosecutor responded, “The submissions my friend has made are clearly in line with what the Crown would suggest.” (5) Thus, so the argument went, the proceeding lacked procedural fairness in that counsel, particularly the defence counsel, being ignorant of prior “threats as to imprisonment” and the apparent significance of “most exceptional circumstances” was deprived of a proper opportunity to shape his submissions. Mr Gillespie-Jones referred the Court to five authorities in support of his submissions. They were as follows.
R. v. Palmieri[1]. Counsel cited a portion of the dissenting judgement of Charles, J.A. His Honour said:
“Of course, it is not to be suggested that a judge, conducting a trial or considering sentence, must be silent, making no intervention during the giving of evidence, and without indicating his or her views. Indeed, Kirby, P. put it in Chow v. DPP (1992) 28 N.S.W.L.R. 593 at 606, that ‘a silent judge is nowadays regarded, more often than not, as a menace.’”
[1][1998] 1 V.R. 486
R. v. Li[2]. This was a case of an appeal against sentence for importing heroin. In the course of his reasons for sentence, the sentencing judge had said “Your possession (of heroin) coincided with a period, which unfortunately has continued, of increased supply of heroin to the streets, indeed of an order whereby the long standing street price decreased quite considerably. This has coincided with, and my experience at the Youth Parole Board confirms, an increased usage by youth.” In this setting, Winneke, P. observed, while doubting that the judge was intending to aggravate the sentence he proposed, “…It is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge, (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise…Procedural fairness requires no less”.
[2][1998] 1 V.R. 637
R. v. Duong[3]. This was a case where, in sentencing an offender, the judge departed from the facts agreed between the parties in a number of respects. Ormiston, J.A., cited Kirby, P. in Chow, supra,:
“…The judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing. But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that…agreed between the parties when the plea was taken.”
[3](1998) 4 V.R. 68
Ormiston, J.A. continued:
“Procedural fairness requires that if a judge proposed to depart from an agreed statement of facts which has formed the basis of a guilty plea, and to rely instead upon facts which are not contained in, or to be inferred from, the agreed facts, the judge should inform the parties in order that they may be given a sufficient opportunity to challenge the material on which the judge is proposing to rely…” (77)
His Honour later added:
“…I consider the judge fell into error in failing to alert the applicant and his legal advisers to the fact that, in sentencing the applicant, he had it in mind to rely upon certain of the evidence adduced at the trial (of co-offenders) without first identifying that evidence and the use proposed to be made of it. It is to be borne in mind that neither the applicant nor his legal advisers were present at that trial.” (78)
R. v. Wise[4]. This was a case involving proceedings of breach of a Community Based Order. The re-sentencing judge (not the original sentencer) referred, in his reasons for sentence, to parts of the original sentencing remarks. He was able to do this because he had a copy thereof from a collection of revised rulings. After an application for leave to appeal against sentence was afoot, the learned judge explained that he considered such revised rulings “for the use of judges alone”. In any event, neither counsel at the breach hearing had a copy of the original sentencing remarks and defence counsel had said he knew nothing of the original offences except what he had been told. Ormiston, J.A., with whom the other members of the Court agreed, observed:
“The critical matter here, therefore, is whether in fact procedural fairness was or was not afforded the applicant because the learned re-sentencing judge acted upon, and appeared to act upon, the basis of and in reliance on material not available to counsel for the present applicant (and indeed largely unknown to him). It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel.” (294)
[4][2000] 2 V.R. 287
His Honour later added:
“It is therefore most important that counsel, especially counsel for the offender, should know of the earlier reasoning. That is the more so where counsel is not the same as counsel who made the original plea, for there is no practical way, unless former counsel took detailed notes and had them transcribed into some more permanent form, for new counsel to have the necessary knowledge of the detail of the earlier reasoning and the factual basis for it. Submissions cannot and should not be made on some hypothetical basis, although it may occasionally be agreed between prosecution and defence counsel, with the concurrence of the presiding judge, that the re-sentencing court need not pay regard to anything other than the original order and its breach.” (295)
As to the ground alleging manifest excess of sentence, ground 1, counsel submitted that the offence constituting the breach was not really a similar offence to those in the presentments; the appellant had made disclosure of his conduct to the police. The first three offences did not involve any touching of the children; and, as at re-sentencing, the appellant had kept the terms of two Community Based Orders; the 90 day sentence of imprisonment imposed by the Magistrate had had a salutary effect upon him; he has now served somewhat more than five months of the re-sentence.
Ms Judd for the Crown submitted that no issue of procedural unfairness really arose in the circumstances and that, otherwise, the sentences imposed fell plainly within the range of those reasonably open to his Honour.
I now turn to my conclusions.
In this matter, there has been no suggestion that defence counsel on the breach was refused access to a copy of the original sentencing remarks. Indeed, it is plain that he did not, as he might have done, seek such access either before the hearing or at it. I would reject the submission that during the proceeding he was “blissfully unaware” that his client stood in the shadow of prison. In putting to the judge that a suspended sentence of imprisonment was one of the options open, he must have been aware that pursuant to s.27 (3) of the Sentencing Act 1991, the judge was forbidden to impose a suspended sentence of imprisonment “unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances…” He was, of course, aware of the 90 day sentence of imprisonment imposed by the Magistrate and could not have been ignorant of the very serious circumstances of count 5. Further, in my opinion, the remarks of the learned judge as to what would follow a breach of the Community Based Order, are just the sort of thing one would expect to have been said in the circumstances. I would not uphold the contention that his Honour “fettered his discretion”, for he most certainly did not speak conclusively.
Finally, whatever he said in September 1999, there is no evidence that, in re-sentencing, his Honour acted on the basis that prison would result unless “the most exceptional circumstances” emerged. He never used that expression – or anything like it.
In my opinion, none of the cases cited are of assistance to the appellant. The remarks of Charles, J.A. in Palmeri support the view that judges have a right, and sometimes a duty, to intervene in the adversarial debate in the interests of justice. The case of Li is not this case. The sentence therein involved the utilisation of facts of which defence counsel was ignorant. In the instant case counsel would reasonably assume that the judge in sentencing would address with the offender the likely consequences of a breach. Nor should his Honour’s impugned remarks, conditional and open ended as they were, be considered in the same way as facts. Both Duong and Wise involved factual situations markedly different from that of the instant case. Grounds 2 to 5 depend upon a breach of procedural fairness being established and as I am not satisfied such events occurred, I would not uphold those grounds.
With respect to ground 1, it is for the appellant to show that the sentence imposed fell altogether outside the range of those properly available to the learned
judge in all the circumstances. I am quite unpersuaded that he has done so. Indeed, my assessment of the sentence is that it is a lenient one. I would not uphold this ground.
I observe that this is yet another of the large number of cases in the County Court in which, on a plea, the Crown Prosecutor is prepared to open the facts to the Court but the offer is not taken up by the judge because he or she has read the papers. The plea for leniency for the offender takes up almost the whole of the court’s time. I am compelled to wonder what victims, or those concerned about them and who are present in the Court, think of such proceedings. Would not the relatively short amount of time taken up by an opening do much to improve the appearance of justice?
I would dismiss this appeal.
CHERNOV, J.A.:
In my opinion, the application for leave to appeal against sentence should be dismissed for the reasons given by Phillips, C.J.
EAMES, J.A.:
I agree with the learned Chief Justice.
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