R v Doherty
[2001] VSCA 20
•7 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 92 of 2000
| THE QUEEN |
| v. |
| RODNEY GRANT DOHERTY |
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JUDGES: | WINNEKE, P., TADGELL, J.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 March 2001 | |
DATE OF JUDGMENT: | 7 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 20 | |
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Criminal law – Sentence – Multiple counts of theft and burglary – 21-year-old man with over 130 prior offences – Whether Attention Deficit Disorder as a child shown to be relevant to sentencing process - 5½ years’ imprisonment with non-parole period of 3 years not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. W.H. Morgan-Payler, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. P.J. Morrissey | Victoria Legal Aid |
WINNEKE, P.:
I invite Tadgell, J.A. to give the first judgment in this appeal.
TADGELL, J.A.:
This is an appeal against sentence, leave having been given by Brooking, J.A. on 8 September last to bring it. The appellant, Rodney Grant Doherty, who was born on 11 February 1978 and who is therefore now aged 23 years, pleaded guilty in the County Court on 19 April last year to 34 counts. There were 14 counts of theft, eight of burglary, one of attempted burglary, seven of causing damage to property intentionally, two of aggravated burglary, one of attempted aggravated burglary and one count of resisting a police officer in the course of his duty.
The appellant admitted over 130 prior offences from 15 court appearances extending from 1992, when he was aged 14, to January 1999, when he was verging on 21 years of age. These prior offences included 50 of theft, 18 of burglary, five of going equipped to steal, an offence of handling stolen goods and six drug offences ranging from possession and using cannabis in 1992, when he was aged about 14, and extending later, when he was about 19 or 20 years of age, to possessing and using heroin. There were also previous offences of assault, escaping from lawful custody, failing to answer bail and some traffic offences. Now, most of the prior offences resulted in convictions but some were dealt with in the Children's Court without the recording of a conviction, no doubt with a view to giving the offender some incentive to mend his young ways. Indeed it is notable that it was not until he had committed 40 offences in all that he was first convicted on any of them, and then at the age of 15, when he was sentenced to detention in a Youth Training Centre. There followed in his succeeding teenage years the imposition of four such terms of detention, that is to say in a Youth Training Centre, and he was also
during his youthful years dealt with by way of Youth Attendance Order, Community-Based Order, Youth Correction Order and an Intensive Youth Correction Order. He was not sent to an adult prison until 1997, at the age of 19, when he was sentenced to imprisonment for four months for a large number of offences. Later in that same year he was imprisoned for one month but it was suspended for twelve months, and in respect of that he fell into breach, the breach being the commission of further offences. In 1998 the appellant was sentenced to imprisonment for another four months to be served by way of Intensive Youth Correction Order, and in January 1999, when he was within a month of being 21 years of age, he was sentenced to twelve months' imprisonment to be served by way of a Combined Custody and Treatment Order.
It is thus evident that most of the available sentencing dispositions had been utilised in the case of this man before he came before the County Court last year. The first of the offences for which he stood to be sentenced in the County Court was committed within a few days of his release from prison, and all of the offences were committed while he was at large pursuant to the Combined Custody and Treatment Order. Moreover, eleven of them were committed while he was on bail.
It is perfectly evident, therefore, that the County Court judge faced an exceedingly difficult sentencing task. The maximum penalty for most of the offences for which a sentence was required was 10 years' imprisonment, but for the aggravated burglary it was 25 years and for the attempted aggravated burglary it was 20 years' imprisonment. In the result, the order that his Honour made covered a wide spectrum. There was a conviction and discharge in respect of five of the offences of damaging property; in the case of one offence a sentence of one month; in the case of another a sentence of three months; in the case of two a sentence of six months; in the case of four offences a sentence of 12 months; in the case of nine of the offences a sentence of 10 months; in the case of eight of them a sentence of two years; in the case of two, a sentence of two-and-a-half years; and in the case of the remaining two a sentence of three years' imprisonment. Thus his Honour can be seen to have gone to a good deal of trouble to tailor the sentences individually so that there was not an obviously crushing total effective sentence. His Honour made orders for limited cumulation and very substantial concurrency, resulting in a total effective sentence of five-and-a-half years' imprisonment, with a minimum of three years before the appellant should become eligible for release on parole. There was a declaration of 155 days' pre-sentence detention.
In his original ground of application for leave to appeal the appellant complained simply of "severity". After he had obtained leave to appeal he obtained leave also to amend the original ground to say that "the sentence is manifestly excessive" and added two other grounds. The first of the added grounds was: "His Honour failed to give any weight or sufficient weight to the Attention Deficit Disorder of the applicant". The next added ground was an allegation of failure by the judge to give any or sufficient weight to the plea of guilty or the appellant's youth. That last was abandoned this morning by Mr Morrissey and not argued.
The appellant's general method of operation in committing the most serious of his most recent offences, to which he pleaded guilty in the County Court, was to steal a car and then to use it, with the assistance of a companion, and go to commercial premises, often in the country and typically a supermarket, and there to perform a depredation upon the premises. It must be said that he appears to have displayed very considerable expertise in the course of his criminal affairs. He was accomplished in identifying and disabling alarm systems and used to wait for some time after doing so in order to see whether he had inadvertently triggered one before entering the subject premises. He usually forced entry by jemmying doors or cutting his way through a roof, taking care not to leave fingerprints and usually wearing, on his hands, his socks. He used to sell the stolen property, bringing it back to Melbourne, for cash on which to live, and he also exchanged large quantities of cigarettes for heroin for his own use. In general terms, the goods stolen (excluding motor cars) which were the subject of the present offences were worth in all about $68,000.
It would be a work of supererogation now to detail the facts of all the current offences, but, in order to convey something of the appellant's mind and method and his attitude to the task at hand, I shall refer to the first and the second in the series. The first three counts on the presentment dealt with activity of the appellant on 23 June 1999. On that day he was released from Beechworth Prison after serving the six-months custodial period of the Combined Custody and Treatment Order. He took a train from Wangaratta to Melbourne. Passing through Euroa, he observed from the train the Riteway supermarket which was near the Euroa railway station, and decided that it would be a suitable target for a burglary to steal cigarettes. Arriving in Melbourne, he stole a motor car and the following day drove it to Euroa. That night or in the early hours of the following morning he smashed the glass of the front door of the supermarket to gain entry. Once inside he removed loose packets of cigarettes to the value of $3,200.
Counts 4 to 7 on the presentment arose out of the following circumstances. At about 3.40 p.m. on 10 July 1999 the appellant attended the car park of the Laverton railway station where he stole a motor car. On the following night he and at least one other unidentified co-offender drove the vehicle to Myrtleford for the purpose of committing another burglary. He parked the vehicle in a quiet area of a caravan park some distance to the rear of a supermarket at Myrtleford, and at 12.37 a.m. went to the front of the store. There he removed the alarm siren and cut the wires in the concrete Telecom pit. He and his associate or associates then waited for some two hours to confirm that their tampering had gone unremarked, before climbing on to the roof at the rear of the premises. They there cut a hole a metre square in the centre of the roof, using tools from the stolen vehicle. Wearing socks on their hands they then climbed down the shelving into the supermarket. There they sought out rubber gloves and plastic garbage bags. They entered the front of the store about half-past four, activating the sensors. The sensor records showed that the intruders remained there until just after five o'clock in the morning. In that time, causing further damage, they removed cigarettes with a wholesale value of nearly $30,000. These proceeds were removed through the hole in the roof and taken back to Melbourne in the stolen car. Damage to the security installation, roof and storage cases was repaired at a cost of some $1,900.
The last of the offences for which the appellant stood to be sentenced occurred at Gisborne where, after committing a burglary and damaging property, the appellant was apprehended. He then gave a false name to police and refused to provide his correct name until extensive enquiries at the police station confirmed his identity. Before that he had wrestled with police until he was finally overpowered and handcuffed.
The learned County Court judge in his sentencing remarks described the appellant as a "professional burglar". If one is chary about using that adjective in the context, it can at least be said with justification that the man is an accomplished criminal and a practised social nuisance who has apparently never obtained an honest living. Nor, it seems, is he in the habit of applying for unemployment benefits or other social security; he prefers, it seems, to keep himself by the results of criminal activity. Much of this was for the purpose, it seems, in later years at all events, of obtaining heroin with the proceeds of his burglaries. In the course of his interview he was asked - and this is typical - what he did with some cigarettes he had stolen, and he said: "I just swapped, like, that'd give me a cap of heroin or - I've given them, you know, 15-20 packets, they'd give me $50 worth of heroin ..." He also explained that in the course of a burglary "I put my socks on that I've got on my feet on to my hands then just steal cigarettes then put the socks back on to my feet." Asked whether it was true to say that he had been living off burglaries since he got out of gaol he said he had; and when asked, "When you're short of money you go and do a burglary, do you?" he said, "Yeah. I don't always do a burglary as soon as I'm short of money. Sometimes I even go around for three or four days without no money before I steal because I don't have no one to do it with. Could be I already have somewhere to stay. If I've got like nowhere to stay and I'm on the street and it's freezing cold, then I'll usually, you know, when I've got nowhere to go, I might just - ", and then he trailed off.
The reason for the appellant's appalling lifestyle is not very hard to find. There were before the judge some psychological reports which canvassed his disturbed history at length and expressed a professional opinion, also at length and in varying degrees of depth. An equally revealing and, for sentencing purposes, perhaps, a more telling biographical snapshot comes in the form of a sad handwritten letter from the appellant's mother, addressed from Perth, apparently to his counsel who appeared on the plea. She described her difficulty as a single mother in controlling the appellant from the age of about eleven, when he was said to be diagnosed with what is called Attention Deficit Disorder. She described how she soon lost the ability to communicate with him and said that his rebellious nature drove them apart. In desperation, and with profound regret, she had him made a ward of the State when he was about, I think, 15 years old. She and three other sons then went to New Zealand for four years. Although she kept in touch with the authorities, and in that sense with the appellant, she did not see him at all until January last year when she came across to Melbourne from Perth, where she had gone to live, and found him in custody on remand. The appellant's mother told somewhat movingly that she found no longer "a horrible little boy" but a young man who, she said, was "quite gentle and realising what he hadn't had for such a long time". She said that she and his brothers looked forward to welcoming him back into the fold when he had served the inevitable sentence that he must face. That letter, if nothing else, perhaps, as well as the psychological reports, suggests that, notwithstanding the chequered history of this man's life so far, there is a prospect of rehabilitation. Though the past is imperfect and the future uncertain, there is some prospect of improvement to which he might properly look forward.
In giving a sentence of five-and-a-half years with a minimum of three, the judge was said this morning on behalf of the appellant to have neglected the duty to enquire into the circumstances and the causes of the appellant's failure to be deterred by punishment from his criminal pursuits. The judge recognised that the appellant had not been deterred in the past and told him that the sentence that he was about to pass was intended to deter him in the future, but at the same time to afford him an opportunity to mend his ways and so to avoid serving all of it. That, under cover of ground 2, was said to fail to recognise that the appellant had a particular problem which was the result of the so-called Attention Deficit Disorder. It was submitted that the judge had an obligation to investigate into the consequences of the appellant's psychological disturbance and did not do so, and was remiss in having failed to make a sensible moderation of the doctrine of specific deterrence because of the supposed Attention Deficit Disorder.
Now, it is true that there is a mention in one of the psychologists' reports, that of Mr Joblin, in January last year, of the Attention Deficit Disorder with which, as the appellant apparently told him, he had been diagnosed as a boy. There is, however, nothing in the report, so far as I can see, to suggest that the appellant still suffered from that condition or, if he did, what the results of it were, and in particular whether it had been something that contributed to his failure to be deterred by his being dealt with for criminal offences in the past or whether it had any impact on the commission of the criminal offences for which he was being sentenced. Furthermore, the Attention Deficit Disorder, so called, was not the subject of any comment at all upon the plea. Counsel did not refer to it but it was said this morning that the judge should have considered it notwithstanding counsel's failure to mention it. I think I do Mr Morrissey no disservice in saying that he really submitted that Attention Deficit Disorder can be said to speak for itself. This, I think, was by no means a case of res ipsa loquitur. If this was something the judge should have considered, counsel on the plea should have drawn it to his attention. In any event it is not clear that his Honour did not take into account the suggestion - perhaps it was an allegation, perhaps it was a fact - that the man had had Attention Deficit Disorder as a child, for his Honour said that he took into account all of the psychological reports. It was suggested that the case of Tsiaras[1] contained some principles that the judge should have applied, and this Court should apply, in considering what effect should be given to the Attention Deficit Disorder. Counsel before us did not address an argument that the appellant was suffering a mental illness but said it was a psychological condition which results in behavioural consequences. Thus it was said that, in the words of Tsiaras, this was a case in which "specific deterrence may be more difficult to achieve and is ... not worth pursuing as such". Whether that statement in Tsiaras was an obiter dictum or not might be the subject of some debate. Even if it were to be regarded as a principle to be applied, there is, in my opinion, no basis for its application here. There is, in other words, no justification for the conclusion that, for the reasons advanced under cover of ground 2, specific deterrence might in this case be difficult to achieve or not worth pursuing.
[1][1996] 1 V.R. 398 at 400.
His Honour's approach to his very difficult task was to take the trouble to award sentences with minimal cumulation and a very substantial period of parole in arriving at the sentence he awarded. It seems to me that nothing at all can be made of ground 2.
The other ground argued was that the sentence was manifestly excessive, and that for two broad reasons: first, that the judge did not take account of the nature of the burglaries, they being among the most serious offences for which he had to pass the sentence. Counsel put it, in effect, that there are burglaries and burglaries, and that these were burglaries simply of commercial premises; there were no victim impact statements and no one was hurt as a result. As was pointed out in the course of argument, it is not very difficult to see that the selection was made of commercial premises here because the takings, the pickings, would be more substantial than if private dwellings were selected and the risks possibly much less. Then it was said that the appellant himself exhibited a number of characteristics which should have moderated the sentences for these offences. Included amongst these were his youth (21 years old at the time of the offences), that he was a somewhat pathetic individual of modest intellect, miserable background and lifestyle and, if not a heroin addict, a substantial heroin user with all the unfortunate consequences that heroin use produces. It was then said that he had long suffered Attention Deficit Disorder. From what I have already said it will appear that I am not satisfied that Attention Deficit Disorder had any particular effect on his commission of these offences. Certainly the appellant had little or no family support and no vocational skills or assets, and the judge, I think, took those deficits into account. All of the other matters which were relied upon under this heading were the subject of consideration by the judge.
It does not appear to me that his Honour left out of consideration any of the matters relied on. For my part, I think there is nothing in the submission that this sentence was manifestly excessive.
I would disallow the appeal.
WINNEKE, P.:
I agree that the appeal should be disallowed, for the reasons given by Tadgell, J.A.
COLDREY, A.J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal against sentence is dismissed.
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