R v Gilleece
[2004] VSCA 157
•24 August 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 174 of 2004
| THE QUEEN |
| v. |
| CLIVE EDWARD GILLEECE |
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JUDGES: | WARREN, C.J., WINNEKE, P. and ORMISTON, J.A. | |
WHERE HELD: | HORSHAM | |
DATE OF HEARING: | 24 August 2004 | |
DATE OF JUDGMENT: | 24 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 157 | |
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Sentencing - Burglary, attempted armed robbery and theft - First offender aged 19 suffering from depression - Total effective sentence of 6½ years with minimum term of 4½ years - Unusual circumstances - Manifestly excessive - Total effective sentence of five years, with minimum of 2½ years, substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. with Ms E. Gardner | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr L.C. Carter | Lucas & Marshman |
WARREN, C.J.:
I invite Ormiston, J.A. to state his reasons first.
ORMISTON, J.A.:
The applicant pleaded guilty to one count of burglary (for which a maximum term of ten years' imprisonment is prescribed), two counts of attempted armed robbery (for which a maximum term of 20 years' imprisonment is prescribed), and one count of attempted theft (for which a maximum term of five years' imprisonment is prescribed). After a plea hearing in the County Court at Horsham this year, the applicant was sentenced to 12 months' imprisonment on the count of burglary, to five years' imprisonment on count 2 for attempted armed robbery, four years' imprisonment on count 3 for attempted armed robbery and nine months' imprisonment on the count of attempted theft (count 4). The learned judge ordered that six months of the sentence imposed on count 1, nine months of the sentence imposed on count 3 and three months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 2 and upon each other. The total effective sentence was therefore six years and six months' imprisonment, and his Honour directed that the applicant serve a period of four years six months before becoming eligible for parole.
The applicant has appealed to this Court on a number of grounds. The first ground of complaint is that the sentence was manifestly excessive, the second that the judge erred in giving insufficient weight to his rehabilitation, the third that he gave insufficient weight to reports obtained pursuant to the Sentencing Act, the fourth that the judge erred in finding the reason for the attempted armed robberies was to steal the day's takings from the victims' business, the fifth that he attached too much weight to the principles of general deterrence, and the sixth that the non-parole period was excessive.
I should first give a summary of the circumstances leading to the laying of these charges. The applicant, who has no prior convictions, was aged 19 at the time of the commission of the offences in December 2003. After a normal childhood in Tasmania, he left school at the age of 17, joining the Air Force shortly thereafter, but a motorcycle accident resulted in his discharge from the Air Force in the early part of 2003. This had left him confused and depressed, at least after a time, with the result that he had for some period before these offences led the life of a drifter, hitchhiking around Australia, surviving on a day-to-day basis.
The victims of the offences were Mr and Mrs Scannell, who ran a general store in the small settlement of Speed in the Mallee, living in a house not far away. They had a son, who had informed them that he would be coming home for Christmas, but he had arrived home with a friend, who was in fact the applicant. Mrs Scannell was uncomfortable with her new, unknown guest staying in her house, so that she asked them both to leave home the following morning. However, the applicant shortly afterwards returned to the area and spent a night in a vacant house next door to the victims. On 22 December 2003 Mr and Mrs Scannell left home in the morning to open their general store. When they had left, the applicant, after a precautionary knock on the front door, entered the house through an open door at the back. He helped himself to food and drink and began to search for things to steal. He collected an assortment of property, including jewellery, a camera, clothing, watches, food and numerous other items, packing them all in bags that he had found in the house, so that he could sell them in due course as best he could. He looked under the bed in the master bedroom and found three firearms. Two were dismantled by him and placed in a bag, but he kept a .22 calibre bolt-action rifle with him and shortly afterwards found some ammunition stored in a cupboard, loaded the rifle, and then waited for the Scannells to return home from their shop. While he was waiting he took a roll of green electrical tape from a shed and found a tomahawk, which he hid behind a dresser in the bedroom. Then he entered the kitchen and removed a large carving knife, which he hid behind two cushions on the couch in the sitting room. By way of further preparation he disconnected the two fixed telephones by removing the cords from the wall. After this, the applicant went into the sitting room and sat with the .22 rifle on his knee, and waited for several hours.
At about a quarter to six, the Scannells returned home. Mrs Scannell got out of the car, with their dog and a load of groceries. She went into the house through the back door, but the dog, unusually, started to growl while she walked to the front of the house. As she came up the passage the applicant confronted her and pointed the rifle at her. Mrs Scannell screamed, "Mick, there's a man with a gun." She was forced to back into the master bedroom but grabbed the dog. The applicant said, "I just want all your money." (This was the attempted armed robbery described in count 2.)
Mr Scannell was still outside, having locked the car. Hearing his wife scream, he ran inside and found the applicant standing with the rifle pointed at his wife. The applicant then pointed the rifle at Mr Scannell and said, "Just give us all your money and I will go." (This was the attempted armed robbery described in count 3.) After he repeated the statement, Mr Scannell said, "Put down the gun." Then Mr Scannell bravely moved closer to the applicant, managed to seize the rifle and point it away from the direction of both himself and his wife. He punched the applicant in the jaw, kicked him in the testicles and struck him about the head with the rifle butt, saying, "How dare you, after what my wife did for you?"
Upon suffering these blows, the applicant fled and at the same time was chased by Mr Scannell, who shouted at him, "You'd better stop!" He fired the rifle into the air twice, but the applicant continued to flee, so Mr Scannell jumped into his car and took off after him. Mrs Scannell tried to call the police immediately, but of course the house phones would not work and she had to find a mobile phone before ringing 000. In the meantime, Mr Scannell continued in vain to search for the applicant, eventually returning home. Remarkably, the applicant had also returned to the house and was creeping along the rear fence. After being told this, Mr Scannell armed himself with a wood splitter and ran up to the applicant, who surrendered by saying, "Just call the police." The police attended shortly afterwards, arresting the applicant and thereafter interviewing him. He made full admissions of all relevant matters, except, arguably, as to the extent the rifle had been loaded. Both Mr and Mrs Scannell were greatly affected by this terrifying experience, Mrs Scannell suffering post-traumatic shock. Mrs Scannell has found difficulty in sleeping in the house for fear of other robbers.
As for the applicant, he has had no prior convictions, and it seemed that up to the time of his accident he had a normal upbringing and had reasonable success in his studies, resulting in his completion of his HSC at the age of 17 and in his joining the RAAF as an apprentice communication technician in 2001. It was only the motorcycle accident which brought him to the unhappy state he was in shortly before the invasion of the Scannells' house. It seemed that, although his sister knew of these events and his departure from the Air Force, he was too proud directly to tell his parents of his compulsory release from that service (without any counselling), while at the same time he was unable to receive any unemployment payments, in part because of his father's income. Thus, after some time with his sister and an attempt to obtain employment, he became a drifter, moving around Australia, and suffering to a degree from depression. The worst that could otherwise be said against the applicant was that in this unhappy state he had stolen small items of food in order to survive. Two reports received by the judge pointed, however, to his good prospects for rehabilitation, especially if he were to return home to Tasmania and to resume the occupation in which he had in the past had success.
The learned judge in his sentencing reasons described the crimes as particularly serious, especially as the applicant had chosen as his victims people who had taken him in for the night. Moreover, he saw the planning, and especially the proposed use of the rifle, tomahawk and knife as aggravating factors. On the other hand, he found in the applicant's favour his plea of guilty, his age, lack of record, and his unusual circumstances at the time, including his depressed state. Nevertheless the judge saw it necessary to impose a substantial term of imprisonment, as I have already described, tempered only by the principles of totality in dealing with cumulation. No discussion took place in the sentencing reasons as to the fixing of a minimum term or as to the effect that his youth and lack of prior convictions might have on the sentence imposed.
Of the various grounds argued before the Court, one may deal first with ground 4, which challenges the finding by the learned judge that the applicant's reason for his proposed armed robbery was to obtain the day's takings from the Scannells. It may be that such an admission was not directly obtained, but in my opinion it is of little consequence. The applicant obviously had sat in wait for the Scannells to return and then to demand money from them. As he in fact demanded, he wanted "all their money", and was threatening each of them with a gun to achieve that end. He may have thought, in a small settlement like Speed, that they would bring the takings home, but it matters little, for he wanted money and was prepared to point a rifle at them to get it.
On the other grounds, however, which I may conveniently deal with together, there is much to say in support of the conclusion that the applicant was unfairly sentenced and that as a whole the sentence was manifestly excessive.
One must first consider that this was an unusual case, one where the first charge brought against an offender is one for attempted armed robbery. Ordinarily it is said, with much justification, that armed robbery is one of those offences which is so serious, and has such serious consequences to those affected, that condign punishment is deserved regardless of other extenuating factors. But that is to take generalisations of that kind too far, if it is said, as does the prosecution here, that stringent penalties are called for without proper allowance for the particular personal circumstances of the offender.
Here, those circumstances include the comparative youth of the applicant and, much more significantly, his lack of prior convictions. When one adds the fact that he was genuinely remorseful, that he had given himself up and had pleaded guilty at the first opportunity, and that his prospects for rehabilitation were and are excellent, then one is entitled to ask: how was that reflected in the sentence and the component parts of it? The offences were all one episode, and even if the intended thefts were, perhaps, the first object, the total sentence of six-and-a-half years suggests that little account has been taken of the special factors here relevant. Moreover, even if the total effective sentence was arguably within the range, it is hard to see how four-and-a-half years was thought to be the appropriate minimum term. Not only is that a reasonable first impression in this case, but his Honour failed in any way to explain why such a conventional minimum term was, and is, appropriate to a first offender, and in particular to this first offender.
Of course the offences were both terrible and terrifying and deserving ordinarily of severe punishment. The effect on the victims, Mr and Mrs Scannell, and the planning and deliberation pointed, and would point ordinarily, to the need for general deterrence to be recognised. But it is the issue of special deterrence which has been largely overlooked. Many aspects of the applicant's behaviour were odd, indeed in some respects bizarre, such as his failure to secure his thefts which occurred early in the day, or were intended to occur early in the day, and later by his returning to the premises even though he had escaped. On the other hand it was, to a degree, right for the judge to refer to the need for general deterrence and to the effects which these attempted armed robberies had on their victims, so vividly set out in the victim impact statements. If there were not other factors, then the sentences were well within range.
But there were other factors of the kind I have described. It is highly important that the punishment should fit both the crime and the criminal, but where the person charged is truly a first offender with real prospects for rehabilitation, the court must ensure, as best it can, that the offender is given as good a chance as practicable to be rehabilitated. That is in the interests of the public in general, as has been said on so many occasions, though the offences must still be dealt with in an appropriate manner.
Here the judge, in my opinion, failed sufficiently to recognise those special, almost unique factors in fixing both the head sentence and the minimum term. What otherwise clearly deserved a term of five years at least, here had to be modified because of the lessening, especially, of the need for specific deterrence. In my opinion, therefore, the head sentence for each of the second and third counts, those for attempted armed robbery, should be fixed at four years. That will require, as it happens, only a reduction on the sentence on count 2 from five years to a substituted term of four years, there being no sufficient reason now to distinguish between the sentences on counts 2 and 3. The other terms should not be altered.
The question of totality must also be reconsidered, in particular by reducing the extent of cumulation, to give effect to the need to reduce the total effective sentence for this particular offender, whatever might be said in other cases. I would therefore only cumulate nine months of the sentence on count 3 and three months of the sentence on count 1 (for burglary) on to the sentence to be imposed on count 2 and on all other sentences. The total effective sentence therefore should now be five years.
Finally one must turn to the term to be served before the applicant becomes eligible for parole. In these special circumstances (circumstances unlikely to be repeated), I would fix a lower than usual period of one half of the total effective sentence, in other words, I would direct that a period of two-and-a-half years (or 30 months) be served before the applicant becomes eligible for parole.
I would therefore grant the application, allow the appeal, set aside the sentences (in part) and re-sentence the applicant in the manner I am suggesting.
WARREN, C.J.:
The offences carried out by the applicant were very serious. It is apparent that the victims, especially Mrs Scannell, were very affected by the applicant's conduct. In many respects his conduct was difficult to comprehend. He had a clear record prior to these events.
I agree with the reasons stated by Ormiston, J.A., in particular his Honour's remarks concerning the gravity of the offences committed. I agree with the disposition of the application and the appeal as proposed by his Honour.
WINNEKE, P.:
I also agree with Ormiston, J.A. that the application and the appeal should be allowed and that the sentences which he proposes should be substituted for those imposed by the sentencing judge. I do so for the reasons given by Ormiston, J.A.
This was a difficult sentencing task for the learned sentencing judge, because it raised the usual tensions which on the one hand attend the fixing of a sentence for serious offending which will deter other would-be offenders from engaging in the same or similar conduct, and on the other hand ensuring that the sentencing disposition adequately recognises the prospects of rehabilitation of a young man such as this applicant who has no history whatsoever of previous offending.
The error which I perceive in his Honour's sentencing disposition is that it gives too little weight to the rehabilitation prospects of a young first offender and too much weight to the principles of general deterrence.
WARREN, C.J.:
The order of the Court is that the application is allowed and the appeal is treated as heard instanter, and it too is allowed.
The sentences imposed by the learned sentencing judge are set aside, and in lieu thereof the Court will impose the following:
On count 1 (burglary) - a term of 12 months' imprisonment.
On count 2 (the first attempted armed robbery) - four years' imprisonment.
On count 3 (the second attempted armed robbery) - four years' imprisonment.
On count 4 (the attempted theft) - nine months' imprisonment.
It is ordered that three months of the sentence on count 1 and nine months of the sentence on count 3 be served cumulatively upon each other and upon the sentence imposed on count 2, the total effective sentence therefore being one of five years.
It is directed that the applicant serve a period of two years and six months before becoming eligible for parole.
It is declared that there be a period of pre-sentence detention of 247 days. Pursuant to s.18 of the Sentencing Act 1991 the Court orders that the details be noted on the records of the Court.
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