R v Brumby
[2000] VSCA 241
•7 December 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 120 of 2000
| THE QUEEN |
| v. |
| JASON JOHN BRUMBY |
---
JUDGES: | TADGELL, CALLAWAY AND BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 December 2000 | |
DATE OF JUDGMENT: | 7 December 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 241 | |
---
CRIMINAL LAW – Sentence – Community based order – Repeated breaches – Order cancelled and imprisonment imposed – No error of principle.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle QC | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr N. Papas | Victoria Legal Aid |
TADGELL, J.A.:
This is an application for leave to appeal against sentence that was passed upon the applicant in the County Court on 25 January this year.
The offences alleged had been committed at Eaglehawk on 4 May 1995 when the applicant was 17 years of age, having been born on 16 August 1977. On the day in question, having consumed beer and bourbon, he went at about 11 o'clock at night to the Eaglehawk Secondary College, shattered a glass door to gain entry and smashed a glass-panelled display cabinet. He then kicked in the door of the Principal's office and forced the door jamb away from the wall frame. Once inside the office, he set fire to a memorandum rack on the desk containing papers and computer disks, which were wholly destroyed, and wrought consequent damage to the desk. He then entered the general office area, opened a filing cabinet and set alight the contents, which were totally destroyed. He left that area, went along a corridor and shattered four other glass doors. By that time he had been observed by police officers who had been brought in response to a silent alarm that had been activated by the applicant's entry and activity. The fire brigade was also brought. A police officer saw the applicant kick out and completely shatter a glass panel with his right foot. He was then apprehended and taken to the Bendigo police station where, in the course of an interview, he made full admissions. The cost of repairing the damage that he caused was about $1,700.
So it was that on 19 September 1995 the applicant was committed for trial in the County Court at Bendigo on charges of burglary, damaging property and arson. The trial was listed for hearing in the County Court at Bendigo on 5 June 1996. On that day, however, the applicant failed to appear and a warrant for his apprehension was later issued. About eleven months later, on 4 March 1997, he was arraigned on a presentment alleging one count of burglary, one of damaging property and one of arson, to which he pleaded not guilty. The trial was adjourned to the next sittings at Bendigo, on 2 April 1997, where the applicant was presented before Judge Duggan on two counts - one of burglary pursuant to s.76(1) of the Crimes Act, the maximum penalty for which offence was relevantly imprisonment for 12½ years, and the other for damaging property contrary to s.197(1) of the Crimes Act, the maximum penalty for which was relevantly imprisonment for 7½ years. The applicant pleaded guilty. He also admitted nine previous convictions from three court appearances between 19 November 1990, when he was about 13 years old, and 17 December 1993, when he was 16. These included three charges of burglary, one of attempted burglary and three of theft.
Having heard a plea for leniency, the learned judge ordered that the applicant be placed on a community-based order for a period of two years. In addition to the core conditions the order required that he perform 250 hours of unpaid community work over twelve months, that he undergo assessment and treatment for alcohol and drug addiction and that he undergo testing for alcohol or drug abuse as directed. The applicant evidently performed some of the work and complied with some of the conditions imposed by the community-based order, but on 20 January 1998 the Bendigo Community Correctional Services, to whom he was responsible pursuant to the order, issued a charge and summons requiring him to appear before the County Court at Melbourne on 17 March 1998 on account of his failure to comply with certain of the conditions. The allegations were of failure to perform unpaid community work as directed on specified dates in September, October and November 1997 and thereafter, failure to attend for supervision as directed on specified dates in January 1998 and failure to attend for assessment and treatment as directed on two dates specified in April 1997.
It was on account of that summons that the applicant came again before Judge Duggan to be dealt with for breach of the community-based order of 2 April 1997. The applicant was represented, as he had been upon his original plea, and admitted breaches as specified. Instead of cancelling the order then and there, his Honour varied it pursuant to sub-s.(3A)(a) of s.47 of the Sentencing Act 1991 by extending it for two years commencing on 17 March 1998. By that date the applicant had, it seems, performed 148.5 hours of unpaid community work out of the 250 that he had been ordered to perform. The judge, instead of increasing the number of hours, ordered that the applicant complete the balance of the 250 hours, namely, 101.5 hours, over twelve months, and that he should undergo assessment and treatment for alcohol or drug addiction and undergo testing for alcohol or drug use as directed.
It would appear that the applicant complied with no part of the community-based order in so far as it was varied on 17 March 1998, and on 18 May 1998 Bendigo Community Correctional Services issued a further charge and summons requiring him to appear before the County Court at Melbourne on 9 June 1998 for failure to comply. The particulars of non-compliance alleged failure to perform unpaid community work as directed on specified dates in March, April and May 1998 and thereafter, and failure to attend for supervision as directed on specified dates in March, April and May 1998. The applicant failed to appear in obedience to that summons and, on 14 September 1999, he was arrested and remanded in custody to appear before Judge Duggan on 17 September 1999. He was apparently arrested following his involvement in further infringements of the law. In August 1998 he had been found guilty of a street offence (being drunk in a public place) and was ordered, without conviction, to pay a fine of $100.
The applicant was brought before Judge Duggan on 17 September 1999. He was represented then by counsel and applied for an adjournment, which the judge allowed, admitting him to bail conditioned on his appearance in the County Court at Melbourne on 22 October 1999. He failed to answer to his bail and a warrant of apprehension was issued on 25 October 1999. In the meantime, on 24 September 1999, the applicant had appeared in the Magistrates' Court at Bendigo and had pleaded guilty to charges of being in possession of and using cannabis in May 1998. He was released without conviction upon entering into an undertaking to be of good behaviour until 22 September 2000, that is to say, the best part of a year later.
On 14 January 2000 the applicant was re-arrested and on 25 January was brought again before Judge Duggan. By reason of differing effects of s.114 of the Sentencing Act 1991 the applicable maximum penalties were then imprisonment for 10 years for burglary and for 7½ years for damaging property. He had no legal representation on that occasion but made submissions on his own behalf and called his mother as a witness. Counsel for the Crown opened the matter to the learned judge, not entirely accurately in reciting the history of the matter. There were two errors made by the prosecutor. He indicated that when on 17 March 1998 the applicant had been brought before the judge for breach of the community-based order, the breaches consisted of non-compliance with it and re-offending. The reference to re-offending was wrong. Further, the prosecutor referred to charges following the applicant's arrest in Bendigo of possession and use of heroin. As I have indicated, those charges were not referable to heroin but to cannabis. Unfortunately, the judge in his sentencing remarks, having been misled by counsel with reference to the nature of the breaches for which the applicant had been before him on 17 March 1998, said that they had included the commission of other offences. His Honour, however, made no reference to counsel's error which had it that the applicant was possessing and using heroin.
His Honour in the course of his remarks denounced the applicant for his breaches of the community-based order and re-sentenced him. That exercise was evidently undertaken pursuant to the terms of sub-s.(3A) of s.47 of the Sentencing Act, although the judge in terms did not recite that he was cancelling the community-based order on account of breaches. That, plainly enough, however, was what the judge did. He had three options under the sub-section: to vary the order, to confirm it and to cancel it. If he took the third of them, as plainly one is to infer his Honour did, he was entitled to deal with the applicant for the offences with respect to which the order was made. His Honour was entitled to do that, and did so, as if he had just found the applicant guilty of the offences to which he had pleaded guilty in April 1997. His Honour re-sentenced the applicant on count 1 (the count of burglary) to be imprisoned for eight months and on count 2 (the count of damaging property) to be imprisoned for ten months. Four months of the sentence on count 1 were ordered to be cumulative upon the sentence on count 2, making a total effective sentence of 14 months' imprisonment. His Honour declared that eleven days' pre-sentence detention be reckoned as time already served.
By notice of application for leave to appeal dated 2 February of this year, the applicant specified: "I feel that with the right paper work and a solicitor I have a chance at a lesser sentence, as I had neither last time." That really is no ground at all and, unsurprisingly, application was made to the Registrar on 6 December to amend the notice by adding to it two grounds, namely, that the sentence imposed by the learned sentencing judge was manifestly excessive and, secondly, that the learned sentencing judge erred in finding that the applicant was returned on 17 March for breach of the community-based order by the commission of other offences.
Dealing with that second added ground, it might be said that the judge did find, because he said so, that the applicant was returned on 17 March for breach of the community-based order by the commission of other offences. If that is the way in which his Honour's remarks are to be read, as a finding rather than simply accepting what the prosecutor told him inaccurately, I am not at all satisfied that that amounted to a finding which betokened sentencing error. The judge on 25 January of this year was not dealing with - or, at all events, not dealing primarily with - the breaches which were referred to on 17 March 1998. He was dealing with the breaches which had been complained of in the second of the two charges brought before him by the authority. In any event, on 17 March 1998 the judge had shown a good deal of leniency to the applicant for the breaches that he had committed at that stage because he varied the community-based order rather than cancelling it. In dealing with the applicant on 25 January, it seems to me that the judge should not be regarded as having taken into account, in fixing the penalty, the statement which he made by way of rehearsing the history. So that second added ground is in my opinion of no avail.
The burden of what was put to us this morning by Mr Papas, who appeared for the applicant, was that in all the circumstances the sentences imposed by the judge on 25 January had been beyond the range and were, on the face of them, excessive. Reference was made to certain mitigating circumstances to which it was said that manifestly the judge had not given proper weight. The principal one of those was that the applicant had in fact completed 148.5 hours of work pursuant to the community-based order. Sub-s.(4) of s.47 requires the court, in determining how to deal with an offender following the cancellation by it of a community-based order, to take into account the extent to which the offender had complied with the order before its cancellation. The judge said in terms that he had taken into account, or reminded himself that he should take into account, what is required by sub-s.(4), so Mr Papas was saying that, in taking into account the hours that had been worked, the judge must have given insufficient consideration to what had been achieved. The exercise, as he submitted, was to discover what sentence the applicant would have received had he not done the hours that he did work, and to reason from there.
Sub-s.(4), however, requires the judge to take into account not only what the prisoner had done pursuant to the order but also what he had not done, and he must balance what he had done against what he had not. It is true enough that he had worked some 60 percent of all of the hours that he was required to work, but that was only part of the kind of obligation that was cast upon him. He had done nothing at all pursuant to the order as it was varied by the judge on 17 March 1998. When the applicant came before the judge on 25 January this year he had worked no more hours pursuant to the order than he had on 17 March, nearly two years earlier. No explanation was given for the failure that the judge thought worth accepting. Moreover, there were other breaches of the order, apart from the failure to work, that the applicant had committed.
Mr Papas pointed also to various other matters personal to the applicant which, along with the hours that he had worked in compliance with the order, the applicant was entitled to have taken into account in his favour in an assessment of the appropriate penalty to be awarded to him upon a re-sentencing for the original offences of burglary and damaging property. These included the value, which was not particularly large, of $1,700-odd of damage; the plea of guilty; the tender age (17 years and some months) of the applicant at the time he committed the offences; that
there had been no prior incarceration suffered by him; and the delay between the time of commission of the offences and his ultimate sentence of imprisonment in respect of them - a delay of four-and-a-half years.
Referring to the delay, it might be noted that a good deal of it - in fact most of it - was referable to the applicant's own conduct and his varying responses to his obligations to appear for trial when it was first fixed, and his other conduct. Not much, in my view, can be made of the delay.
Mr Papas went so far this morning as to suggest some figures as to a term of imprisonment which might have been appropriate. In my opinion, however, there is not a jot of justification for the conclusion that this sentence of 14 months passed upon the applicant was not within the range available to the learned judge.
Despite all of the submissions that have been made to us, I am quite unsatisfied that the ground of manifest excess has been made out and I would reject this application.
CALLAWAY, J.A.:
The learned presiding judge has described the circumstances in which this matter comes before the Court. Even if the erroneous information that the prosecutor placed before his Honour on 25th January 2000 calls upon us to reconsider the case, which I do not decide, I think no different sentence should be passed. The applicant is no longer entitled to substantial leniency.
Accordingly I, too, would dismiss the application.
BATT, J.A.:
The error as to the initial breaches of the community-based order, which I think his Honour did make was not, I consider, a material error. It occurred merely in his Honour's historical recitation.
As to the only other proper ground, even allowing for the requirement of s.47(4) of the Sentencing Act 1991, I do not consider that the sentence was manifestly excessive.
For these reasons and those given by Tadgell, J.A., I would dismiss the application.
(Discussion ensued.)
TADGELL, J.A.:
The judgment of the Court is that the application for leave to appeal against sentence is dismissed.
- - -
0
0
0