R v Frost
[2007] VSCA 98
•11 May 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 183 of 2006
| THE QUEEN |
| v |
| CARL JEROME FROST |
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JUDGES: | VINCENT, EAMES and NETTLE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 May 2007 | |
DATE OF JUDGMENT: | 11 May 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 98 | |
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Criminal law – Sentence – Burglary – Theft – Handling stolen goods – Obtaining property by deception – Possessing the proceeds of crime – Totality – Manifest excess – Youth – Substantial prior convictions – Rehabilitation – Appellant had not undergone any period of incarceration at time of sentencing – Whether sentence imposed "crushing" – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms F L Dalziel | Ann Valos Criminal Law |
VINCENT JA:
The appellant pleaded guilty in the County Court at Melbourne, on 29 May 2006, to two counts of burglary (counts 7 and 12), two counts of theft (counts 8 and 13) two counts of handling stolen goods (counts 1 and 15), four counts of obtaining property by deception (counts 2, 6, 14 and 18) and three counts of possessing the proceeds of crime (counts 5, 16 and 17).
He admitted 62 findings of guilt and ten prior convictions arising from six court appearances in the Children's and Magistrates' Courts between 29 October 2001 and 20 May 2005. They related, for the most part, to offences of burglary, theft, possession of property being the proceeds of crime, handling stolen goods and various drug related activities.
After hearing a plea in mitigation of penalty the learned sentencing judge, on 14 June 2006, imposed the following sentences:
On each of
counts 1, 6
and 17 - six months’ imprisonment;On each of
counts 2
and 18 - four months’ imprisonment;On count 5 - eight months’ imprisonment;
On each ofcounts 7, 8,
12 and 13 - 18 months’ imprisonment;On count 14 - 12 months’ imprisonment;
On count 15 - two years’ imprisonment;
On count 16 - 15 months’ imprisonment;Her Honour directed that one month of the sentence imposed on each of counts 1, 5, 7, 14, 16 and 17 and two months of that imposed on count 12 be served cumulatively upon each other and upon the sentence imposed on count 15. These orders created an effective sentence of two years and eight months' imprisonment of which the judge ordered that eight months be served concurrently with sentences that the appellant was undergoing at the time. It was further ordered that he serve a minimum period of 20 months' imprisonment before becoming eligible for parole.[1] The effect of her Honour's sentence was, accordingly, to extend the total effective period of incarceration to which the appellant was subject by 24 months, of which he would be required to serve a minimum of 20 months.
[1]The sentencing judge also made compensation orders pursuant to s 86 of the Sentencing Act (1991) and a forfeiture and disposal order pursuant to s 33 of the Confiscation Act (1997).
The present appeal is based upon the single ground that the discretion of the learned sentencing judge miscarried in that she failed to give effect to the principle of totality.
The Background
There is no need to set out in detail the circumstances of the offences and sufficient to state that between 25 July 2005 and 12 August 2005, when the appellant and a co-offender, Adam Hogarth, were living in crisis accommodation that had been secured for them by the Salvation Army, in Kensington, they committed a series of burglaries and thefts at residential properties. The crimes were committed to fund their heroin usage. They generally dealt with the proceeds gained by selling them at various “Cash Converter” outlets in circumstances that surprisingly, seemed to attract absolutely no suspicion. When arrested, they were in possession of a large amount of property suspected of having been stolen.
The Ground of Appeal
The contention that the sentencing judge failed to give effect to the principle of totality arises against the following background. The appellant was sentenced on 26 August 2005 to detention for 15 months in a Youth Training Centre. Whilst in custody he was, on 16 January 2006, sentenced to a further term of 12 months' detention, six months of which was to be served concurrently. By the time of sentencing for the offences presently under consideration, the appellant had been transferred to an adult prison. He had already been determined by the Youth Parole Board to be eligible for release on parole on 5 June 2006 with a sentence expiry date at around the end of April 2007.
The effect of the judge's orders made on 14 June 2006 was that his total effective period of incarceration would expire on 16 April 2009; with parole eligibility arising on 30 January 2008. In other words, the appellant has had imposed upon him as a consequence of these dispositions, and measured from the time that he initially went into custody prior to sentencing in August 2005, a total effective period of incarceration of approximately 45 months of which he would be required to serve 31 months before becoming eligible for parole.
Although the ground of appeal refers only to an asserted breach of the principle of totality, the argument that has been advanced in support by Ms Dalziel was directed more broadly to a claim of manifest excess. In support of this claim, counsel placed emphasis upon the appellant's youth. He was, at the time of the commission of the offences and sentencing, still only 19 years of age and, although he had amassed a substantial number of convictions and findings of guilt in the previous five years, he had not to that time undergone any period of incarceration. With respect to the latter consideration, it would seem to be incontrovertible from the dispositions ordered that the various magistrates before whom he appeared were all concerned to facilitate his rehabilitation and specifically to avoid removing him from the community. I have little doubt that this concern arose from an appreciation of the appellant's unfortunate background and the factors that had contributed to his offending behaviour.[2] However, it was inevitable that, if he continued to offend, eventually he would be imprisoned. The real question, to my mind, that arises in this appeal is whether, when it did occur, the effective response was simply too severe.
[2]He had been, at different times, released on Youth Supervision Orders, Community Based Orders, and probation, and usually with special conditions designed to aid in his re-integration.
The task confronting the sentencing judge presented difficulties. As I have indicated, the appellant was a young person with an extremely unfortunate background. Her Honour addressing the appellant accepted that he had had –
"… a traumatic childhood and adolescence, caused by the instability of your family. The details are set out in the reports and by Mr Holden as to your history. … I accept that this instability is the underlying cause for your abuse of alcohol which is linked to your early offending and to the use of heroin which is the cause for the commission of the offences for which I am to sentence you … today.
Your mother and your father are from a Maori and Pacific Islander background. Your parents migrated from New Zealand when you were nine years of age. You have three brothers and you are the third eldest. Unfortunately your upbringing both in New Zealand and Australia was adversely affected by the fact that your parents abused drugs and alcohol which caused violent behaviour directed to each other and to you and your brothers. At various times you and your brothers were placed in foster care because of the level of violence.
Unfortunately your education was interrupted and that you attended a number of schools both in New Zealand and here which caused you to have difficulties with your school work and not surprisingly you left school half way through Year 9 in Year 2000. Ms Lechner reports that you worked at your father’s place of employment on a casual basis and in early March 2002 you worked as a car detailer. At times you had lived with your family and in particular your father with whom you have a reasonably good relationship in latter years.
However, at times there were arguments and more recently one argument led you to leave and to resort to what Ms Lechner described as heavy drug use. You commenced using cannabis daily from when you were 14 years of age and throughout your life have abused alcohol which is reflected in the prior convictions for violence and street offences. …"[3]
The sentencing judge was well aware of the proper approach to be adopted when dealing with young offenders and stated:
"… There is a responsibility on judges dealing with youthful offenders who have committed criminal offences to impose sentences which take into account youth and the need to give more emphasis to the need for rehabilitation than with adult offenders."[4]
She continued –
"A sentencing judge must accord a deal of weight, as I have stated, to rehabilitation for a person of your age. However, as a sentencing judge I must also be realistic and take into account that any rehabilitation must depend upon your completing successfully a drug and alcohol rehabilitation course. Your rehabilitation depends upon you learning through a drug treatment course the strategies to use to prevent any relapse into drug use, as well as engaging in psychological treatment or counselling to deal with the underlying issues which Mr Watson Munro referred to. Consequently I consider it critical that you complete a comprehensive drug course in the prison system before you are released on parole."[5]
[3]Sentence T94-95.
[4]Sentence T96.
[5]Sentence T97.
As I have mentioned, her Honour was conscious of the appellant's unfortunate background and the extent to which it contributed to his abuse of alcohol and drugs and to his offending. Further, she accepted that the appellant's –
"… lack of ability to articulate, given [his] lack of education and [his] age has caused [him] to be stood over in the adult prison system."[6]
and it came as no surprise to her to find that he was "fearful in [that] system."[7]
[6]Sentence T95
[7]Sentence T96.
It is evident that the sentencing judge was conscious of the absence of any history of incarceration and took into account the substantial period of time that the appellant had already been in custody, specifically pointing out that the order for partial concurrency was made for this reason and to avoid subjecting him to what she described as a "crushing" sentence. Taken in this context, it would appear clear that her Honour, when employing this term, was directing attention to both the principle of totality and her concerns that the sentence she was handing down would not render the appellant even more alienated from society than he had been to that time, on the one hand, and the need to reflect the seriousness of his repeated criminal conduct, on the other.
It is evident that a great deal of care was taken by the sentencing judge in this matter. However, I have reached the conclusion that nevertheless her Honour's orders created an overall period of incarceration which was manifestly excessive in the circumstances. As I have mentioned, the appellant was being imprisoned for the
first time and he was only 19 years of age at the time of sentencing. The factors that contributed to his offending in the first place were relatively clear, and it was evident that very considerable attention needed to be given to his prospects of rehabilitation.
Accordingly, I would allow this appeal re-impose the individual sentences handed down in the court below and the orders for cumulation and thereby create the same total effective sentence of two years and eight months. However, I would direct that 15 months of the sentence imposed on count 15 be served concurrently with the sentences that he was then undergoing and I would fix a new non-parole period of 12 months. This would have the effect of reducing the overall period of incarceration from 45 months to 38 months and the minimum period that he would be required to serve, from 31 months to 23 months.
EAMES JA:
I agree with the orders proposed by Vincent JA and with his Honour's reasons.
NETTLE JA:
I also agree.
VINCENT JA:
The orders of the Court are:
1. The appeal is allowed.
2. The sentences imposed below are set aside and re-imposed as are the orders for cumulation, namely –
On each of
counts 1, 6 and 17 - six months’ imprisonment;
On each of counts
2 and 18 - four months’ imprisonment;
On count 5 - eight months’ imprisonment;
On each of counts
7, 8, 12 and 13 - 18 months’ imprisonment;
On count 14 - 12 months’ imprisonment;
On count 15 - two years’ imprisonment; and
On count 16 - 15 months’ imprisonment.
3. The Court directs that one month of the sentence imposed on each of counts 1, 5, 7, 14, 16 and 17 and two months of that imposed on count 12 be served cumulatively upon each other and upon the sentence imposed on count 15, creating a total effective sentence of two years and eight months’ imprisonment.
4. The Court orders that 15 months of the sentence imposed on count 15 be served concurrently with the sentences that he was then undergoing.
5. A non-parole period of 12 months be fixed.
6. It is declared that the period of 345 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
7. The Court otherwise confirms the compensation orders made pursuant to s 86 of the Sentencing Act 1991 and the forfeiture and disposal order made pursuant to s 33(1) of the Confiscation Act 1997 on 14 June 2006.
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