R v Brickell
[2001] VSCA 133
•16 August 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 251 of 2000
| THE QUEEN |
| v. |
| JOHN CAMERON BRICKELL |
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JUDGES: | PHILLIPS, CHARLES and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 August 2001 | |
DATE OF JUDGMENT: | 16 August 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 133 | |
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Criminal law – Sentencing – Theft and conspiracy to commit armed robbery – No previous convictions – Three years’ imprisonment not manifestly excessive as matters stood on the plea – Crown concedes admissibility of fresh evidence to avoid miscarriage – Sentences reduced as a result and suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | Solicitor for Public Prosecutions |
| For the Applicant | Mr M. Rochford | Brendan Wilkinson |
PHILLIPS, J.A. (delivering the judgment of the Court):
The applicant, who is now aged 37, pleaded guilty in the County Court at Melbourne to a presentment alleging one count of conspiracy - conspiracy, that is, to commit an armed robbery - and one count of theft, being the theft of a motor car to be used in the armed robbery. A co-offender, Terrence Leigh Blewitt, pleaded not guilty and was convicted after a trial. Blewitt admitted 16 previous convictions including that on 13 February 1987 at the Central Criminal Court, New South Wales, he was convicted of serious offences of violence leading to a total effective sentence of 18 years, of which he was ordered to serve 13 before he became eligible for parole.
The applicant had no prior convictions. However, in 1994 he was charged with the crime of murder and held in remand in gaol in New South Wales for approximately two years and ten months pending the trial, at which he was acquitted. After the commission of the offences the subject of this application and which occurred in March 1999, he was convicted in the Magistrates' Court at Frankston of possessing a firearm without a licence contrary to the Firearms Act 1966 and fined $5,000. That was on 10 September 1999.
As to the circumstances of the offending in March 1999, suffice it for present purposes to say that the armed robbery, although put in train, was never carried through. During a lengthy plea in mitigation on his behalf by counsel, evidence was given for the applicant by his father, his former wife and mother of his three children, Dr Stacey Rope, his medical practitioner, Mr Leslie Thornton, a psychologist, and Mr Richard Smith, an alcohol and drug clinician. The evidence made a strong case in mitigation. The applicant's father spoke of his son's exceptional ability, and the drainage business he was then building. His former wife spoke of the applicant's condition when he was released from custody and how the symptoms he then exhibited had a dramatic effect on their relationship, ultimately leading to their separation. Dr Rope gave evidence of the extreme anxiety and depression the applicant had suffered, linked to his experience of incarceration and solitary confinement. Mr Thornton diagnosed the applicant as suffering from post-traumatic stress disorder, related to his incarceration in New South Wales. Mr Thornton said that in consequence of both medication and counselling, the applicant was then managing his symptoms and he expected that the applicant would, provided he remained stable, be able to come off his medication in the future, having the intellectual resources and support to do so. Mr Thornton also stated that there was a risk of the applicant's depression worsening with incarceration. Mr Richard Smith spoke of the applicant's personal history of excessive alcohol and other drug use. However, after counselling, the applicant was no longer then using drugs or alcohol and was responding well to treatment.
The judge sentenced Blewitt to a total effective term of six years and fixed three-and-a-half years as a minimum term. Her Honour then sentenced the applicant to three years on the count of conspiracy and six months on the count of theft. The total effective sentence was three years' imprisonment and 12 months was fixed as the period to be served by the applicant before becoming eligible for parole. There were 10 days of pre-sentence detention. The applicant's driver licence was cancelled and he was disqualified "from driving" [sic] for 12 months. The applicant, who was granted bail on 19 October 2000, now seeks leave to appeal against sentence.
In more ways than one this is a most unusual case. First, the applicant had, on the evidence, suffered severely while remanded in custody for a very lengthy period for an offence of which he was later acquitted and of which he must therefore be treated as innocent. His period in custody had dramatic consequences for him in terms of the post-traumatic stress disorder and depression he suffered and it has apparently had long-lasting and continuing consequences. Nevertheless, on the evidence, he has built up a considerable business and is plainly an excellent prospect for rehabilitation. Further, the circumstances in which he came to offend for the first time - and to offend so seriously - are unusual, stemming directly, it seems, from his time in gaol and in themselves suggesting that he might not have been a willing participant in the plan worked out with Blewitt. On the plea Blewitt's counsel told the judge that Blewitt took full responsibility for the applicant's participation.
Of most note are the grounds on which appeal is sought and the response of the Crown. As the respondent put it in submission, in substance the only ground of appeal is that the learned sentencing judge was not made aware of certain matters at the time of sentence and that such matters, had they been known to the learned sentencing judge, would have led to a disposition more favourable to the appellant. As to that the Crown submission is as follows:
“2.The material relied upon by the Appellant in support of this application was of such a nature that the failure to lead it before the learned sentencing Judge could not be the subject of criticism.
3.The material sought to be relied upon in so far as it is limited to matters which were in existence as of the date of sentence may be properly received by this Court consistent with the principles enunciated in R. v. Babic[1], R. v. Rostom[2] and [other cases].
4.It is accepted that such material would have been properly put to the learned sentencing judge. Whilst the individual sentences passed in this matter, which led to a total effective sentence of three years' imprisonment, could not be described as manifestly excessive, the extent to which any of it ought be immediately served is properly reconsidered.”
[1][1998] 2 V.R. 79.
[2][1996] 2 V.R. 82.
We agree with this and we have no doubt but that leave to appeal should be granted. We are quite satisfied on the affidavit before us that the previous absence of the material now relied upon is sufficiently explained and that that further material should now be received on appeal in order to prevent a miscarriage. We agree too that there was no error in the sentences passed below on the material then before the sentencing judge but that with the admission of the further material the applicant falls now to be re-sentenced. So much is conceded by the Crown and we think the concession properly made.
Having now considered all that has been put before us on this application relative to re-sentencing, we have reached the conclusion that in the special circumstances of the case the applicant should be re-sentenced as follows: that is, that on count 1, he be imprisoned for three months and on count 2 he be imprisoned for one year. The total effective sentence is therefore of one year's imprisonment. The applicant was sentenced on 1 September 2000 and granted bail on 19 October 2000 and if, as we assume, he was released on bail on 19 October, he has so far served 59 days, when pre-sentence detention is included, and a declaration to that effect will be made. But in the very unusual circumstances - and we stress that they are exceptional - we think that justice requires that the balance of the term which has yet to be served be wholly suspended, and be wholly suspended for a period of two years (those two years to be reckoned from this day, 16 August 2001). The orders for cancellation and disqualification have been in place since the date of sentencing in the County Court (1 September 2000) and we will simply confirm those orders, save to correct the obvious slip made in the order for disqualification under s.89(4) of the Sentencing Act 1991.
The orders of the Court are therefore as follows:
(1) That leave to appeal against sentence be granted.
(2) That the appeal be treated as instituted and heard instanter and be allowed.
(3)That the sentences imposed in the County Court on 1 September 2000 be set aside and that the applicant be sentenced as follows, that is to say -
On count 1 that he be imprisoned for 3 months and on count 2 that he be imprisoned for 1 year. The total effective sentence is therefore of 1 year's imprisonment.
It is declared that the period of 59 days be reckoned as already served under these sentences and the fact that that declaration was made and its details are to be noted in the records of the Court.
It is ordered that the balance of these sentences which has yet to be served (that is the period of one year less 59 days) be wholly suspended for a period of two years (reckoned from this day, 16 August 2001).
It is further ordered that the orders made in the County Court under s.89(4) of the Sentencing Act 1991 for cancellation and disqualification be confirmed, save that the order for disqualification is varied to this extent: instead of ordering that the applicant be "disqualified from driving for 12 months" it is ordered that the applicant be "disqualified from obtaining a driver licence for 12 months", but with effect still from 1 September 2000.
PHILLIPS, J.A.: Mr Brickell, you will understand from what I have said that the Court is sentencing you again and your total effective sentence is now of one year's imprisonment, but because you have served 59 days you only have the balance of that one year still to be served, and it is that balance which is now being suspended, and suspended for a period of two years. I must warn you that if during the period of suspension, that is, during the period of two years from this date, you commit any other offence, either in Victoria or elsewhere, which is punishable by imprisonment, then the suspension may be revoked and you may be required to serve that part of the term which is now being suspended, which is one year minus 59 days. Do you understand that?
APPLICANT: Yes, Your Honour.
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