R v Brain

[2000] VSCA 246

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 230 of 2000

THE QUEEN

v

MEGAN ANNE BRAIN

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JUDGES:	WINNEKE, P., BROOKING and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2000
DATE OF JUDGMENT:	12 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 246

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Criminal Law – Sentence – Armed robbery by young drug addict – Community based order – Breach – Order cancelled and replaced by youth training centre detention – No error.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C. J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. M.G. O’Connell	Melasecca Zayler

BROOKING, J.A.: 

1. The appellant was given leave to appeal on a s.582 application last Friday.  She is now 19.  On 17 and 18 July 1998, at the age of 17 and two months, she committed one armed robbery and two attempted armed robberies in company with two other young women or, in the case of one offence, one other young woman.

1. The second offence was committed very soon after the first.  In all three offences one offender was armed with a syringe and the women demanded, and in one case obtained, money from a person using an automatic teller machine in the City on a Friday or Saturday evening.

1. The appellant pleaded guilty in the County Court and on 14 May 1999 the judge convicted her of the three offences and placed her on a community-based order for two years, with conditions providing for treatment for alcohol and drug addiction and testing for alcohol or drug use.

1. On 31 July last, the appellant was dealt with by the same judge in consequence of an admitted breach of the community-based order.  His Honour cancelled it and sentenced her to twelve months' Youth Training Centre detention on the count of armed robbery and to six months' detention on each of the counts of attempted armed robbery, and made a cumulation order resulting in a total effective sentence of 15 months' detention.

1. There are four grounds of appeal, it being said that the sentence was manifestly excessive, that the judge failed to take into account the appellant's rehabilitation, that he failed to take into account her compliance with the community-based order and that he failed to take into account the effluxion of time between the offence and the commencement of the sentence.

1. The breaches alleged were failures to attend for supervision as directed on six occasions between June 1999 and March 2000, failure to attend for treatment as directed in January 2000, and failure to attend for drug testing as directed in June 1999.

1. Her counsel told the judge that she had, in addition, breached the order by committing a shoplifting offence in about June 1999, and so only about a month after she was placed on the order, that she had not yet been dealt with for that offence, but that she would be pleading guilty in due course.  His Honour observed that the admitted commission of this offence bore on the extent to which the appellant had complied with the order.  It is accepted by the appellant's counsel that it did have this bearing.

1. The present case is one of the many sad cases of young drug addicted offenders which come before the courts.  She committed the armed robbery and the attempted armed robberies to get money to buy heroin and cigarettes.  She began running away from home at the age of about 15 or perhaps earlier and began using heroin at about the age of 15.  By the time of the original plea, in May 1999, she had undergone attempts at detoxification on more than one occasion.  She was living in a "supported house" run by a voluntary organisation for the support of young drug abusers, had enrolled at a TAFE institution and was undergoing VCE studies.

1. The breach report from CORE disclosed that testing during the second half of 1999 showed that her illegal drug use had continued throughout the period of the order.  It was said in the report that continued drug use and difficulties with accommodation, combined with her age, had severely hampered her efforts to meet her commitments and that she might need a detoxification programme and then long-term residential rehabilitation to get her life back on track.

1. At the time of the plea on the breach proceedings, 31 July last, the judge was told that the appellant was about four months pregnant.  She was then aged 19 years, two months.  She was, and had for some considerable time been, on a methadone programme.  Her counsel put two reports in evidence, one to prove her current participation in the methadone programme, and the other from a youth worker, Ms Nain Philp, of the Youth Substance Abuse Service, who was her counsellor, dealing in some detail with the support given to the appellant, including her admission to a residential unit for heroin withdrawal and respite on four occasions between February 1999 and July 1999, and for methadone stabilization in June 2000.

1. Shortly after the breach proceedings were disposed of, the appellant was, on 1 September last, sentenced in the Magistrates' Court to a total effective term of two months' Youth Training Centre detention for the offence of shoplifting earlier mentioned and a number of other offences committed between May and July 1999.  On 25 October last she was sentenced to seven days' detention on a charge of possession of a regulated weapon, a knife, the offence having been committed in March 2000.  These sentences are concurrent by operation of law with the 15 month total effective sentence passed by his Honour on 31 July.

1. The appellant's co-offenders had previously been dealt with by the judge for breach of the community-based order.  The sentences passed on them and that passed on the appellant seem to reflect appropriately the differences between the three offenders and their offences.

1. I have already paraphrased the grounds of appeal.  The appeal really is, as Mr O'Connell accepts, based on the contention that the sentence passed was manifestly excessive.  Although Grounds 2 and 3 allege a failure to take the appellant's rehabilitation and the extent of her compliance with the order into account, the reasons for sentence show that these matters were taken into account, so there can be no suggestion of specific error.  Ground 4 alleges that the judge failed to take into account the substantial period of time that had elapsed between the original offences and the passing of the sentence of Youth Training Centre detention, a period of two years.  But his Honour was well aware of the relevant dates, and the elapsing of a total period of two years was due in part to the normal and virtually inevitable delays and in part to the leniency extended to the appellant in May 1999, when the judge placed her on the two year community-based order.  It was, of course, necessary to consider the extent to which that order had been complied with, but that is another matter.

1. Mr O'Connell relied principally on the appellant's youth at the time of the original offences and at the time of the breach proceedings, the fact that the breach was not constituted by re-offending, the extent to which the order had been complied with, the applicant's pregnancy and her steps towards, and prospects of, rehabilitation.  He relied especially on the length of time she had been on the methadone programme and the pregnancy.  His submission is, not that a sentence of Youth Training Centre detention was inappropriate, but that the period fixed upon was manifestly too long.  This is a very difficult contention in the circumstances of this case.

1. I find myself unable to say that the sentence was manifestly excessive.  A very young offender, without any prior convictions, had committed three serious offences.  She was shown appropriate leniency by the grant of the community-based order.  She was in breach of that order in respects that were by no means insignificant.  Tests showed that her illegal drug use continued unabated throughout the period of the order and, so far as the extent of her compliance with it is concerned, she committed an offence punishable by imprisonment within a few weeks of the making of the order and, indeed, other offences.

1. I am unable to say that in all the circumstances it was not within the judge's discretion to pass the sentences which he did, and so I would dismiss this appeal.

WINNEKE, P.: 

1. I agree.

PHILLIPS, J.A.:

1. I agree.

WINNEKE, P.: 

1. The formal order of the court is that the appeal is dismissed.