R v Glenn
[2005] VSCA 31
•10 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 52 of 2004
| THE QUEEN |
| v. |
| RYAN MATTHEW GLENN |
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JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 February 2005 | |
DATE OF JUDGMENT: | 10 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 31 | |
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Criminal law – Sentencing – Recklessly causing injury and aggravated burglary – Young offender – 15 month suspended sentence – Whether manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.F. Meredith | Dowling McGregor Thomas |
VINCENT, J.A.:
I will invite Nettle, J.A. to deliver the first judgment.
NETTLE, J.A.:
On 28 January 2004 the appellant and two co-accused were presented before her Honour Judge Pannam in the County Court at Melbourne on charges arising out of offences committed in January 2003. The appellant pleaded guilty to one count of recklessly causing injury (count 3) and one count of aggravated burglary (count 4). One of the co-accused, Trent Matthew James, pleaded guilty to one count of arson (count 5) and the other, Belinda Joan Harold, pleaded guilty to two counts of theft (counts 1 and 2); one count of recklessly causing injury (count 3); one count of arson (count 5); and one count of possessing a drug of dependence (count 6).
On 12 March 2004, after hearing pleas in mitigation of penalty, the judge sentenced the appellant and his co-offenders as follows:
· The appellant: on the count of recklessly causing serious injury (count 3): 8 months’ imprisonment, and on the count of aggravated burglary (count 4), 15 months’ imprisonment, making for a total effective sentence of 15 months’ imprisonment, which her Honour wholly suspended for a period of two years.
· Trent Matthew James: on the count of arson (count 5): 15 months’ imprisonment, wholly suspended for a period of two years.
· Belinda Joan Harold: on each of the counts of theft (counts 1 and 2): 6 months’ imprisonment; on the count of recklessly causing serious injury (count 3); 15 months’ imprisonment on the count of aggravated burglary (count 4); eight months’ imprisonment; on the count of arson (count 5); 18 months’ imprisonment; and on the count of possessing a drug of dependence (count 6): a fine of $200, thus making for a total effective sentence of 18 months’ imprisonment, which her Honour wholly
suspended for a period of two years and six months.
On 10 September 2004 Callaway, J.A. granted the appellant leave to appeal against the sentence imposed.
The facts
The offences arose out of the termination of relatively relationship between Belinda Harold and one of the victims, Jarrod Griffin. It had been of short duration, lasting only from November 2001 until 10 December 2002, but it would appear that Harold became very angry when it came to an end and she recruited the appellant and James to assist her to visit vengeance on Jarrod Griffin and other members of his family. At that time, Harold was about 30 years old but the appellant was only 17 and James was only 18.
On 3 January 2004 the three of them drove to the Griffin home in Nepean Highway, Seaford. Harold alone entered the house and stole items belonging to Jarrod Griffin and his brother. That conduct constituted one of the counts of theft (count 1). From there the three of them drove to the Griffin family business in Mentone where Jarrod Griffin’s brother, Jordan Griffin, was working alone. Harold there stole some CD’s and other small items, and that was the conduct which comprised the other count of theft (count 2). Jordan Griffin saw the three of them outside the factory and went out to them, and Harold then threatened him and punched him to the head. Griffin retreated into the factory and the Harold and the appellant followed him in. Harold then told the appellant to assault Griffin and he did so by slapping Griffin twice with his open hand. That was the conduct that constituted the counts of recklessly causing injury (count 3) and aggravated burglary (count 4). Griffin picked up a steel pole to protect himself and the three offenders left the factory.
At about 2a.m. on the following morning the three offenders drove again to the Griffin household in Seaford. Harold and James then approached the house and threw a Molotov cocktail into the house, setting it alight. That was the conduct that constituted the count of arson (count 5). The appellant wished not to be involved in that offence and walked away before it was committed. Fortunately, the occupants of the house awoke quickly and the fire was extinguished before causing extensive damage.
Grounds of appeal
The grounds of appeal (as amended pursuant to the order of the Registrar made on 11 October 2004) are:
· Ground 1: That the sentence is manifestly excessive in that it fails to take into account the appellant’s youth and his prospects for rehabilitation.
· Ground 2: That the judge erred in sentencing the appellant by taking into account conduct which was not the subject of any charge, by finding that the offending of the appellant the subject of count 3 or count 4 was aggravated by the victim “being justifiably frightened by being confronted by the three of you ”.
Manifest excessiveness
Two arguments have been advanced in support of the first ground of appeal: first, that when all matters are considered together it is clear that the sentence is beyond the appropriate range; and, secondly, that the imposition of the same total effective sentence on the appellant as upon James is enough of itself to show the excessive nature of the sentence imposed on the appellant.
In support of the first of those arguments it is said that the circumstances of the appellant’s offences put the offences towards the lower end of the range of seriousness and that when one also takes into account the matters which were put in mitigation on behalf of the appellant, a suspended sentence of 15 months is plainly beyond the range of penalties that might properly have been imposed. Particular reliance is placed upon the contentions advanced before the sentencing judge that the appellant was a follower rather than a leader in the offending, that he was only 17 years of age at the time of the offending, that he had only met Harold on the night before the offending (and seemed to be very much in her sway), that he had co-operated with police and pleaded guilty at an early stage, that he had no prior convictions and had been gainfully employed for some of the time since leaving school at the end of year 10, that the offending was out of character (in that he was generally regarded as a young man of good character and sound judgment), and that he had a loving and supportive family who were there to guide him.
Counsel for the appellant contends that in as much as rehabilitation is the paramount sentencing consideration when dealing with young first offenders, and that a sentence of imprisonment is to be avoided if some other disposition is apt to achieve rehabilitation, it would not have been not open in this case to impose an immediate term of imprisonment. It is then said that, because it is not open to impose a suspended term of imprisonment unless the court is of the view that it would be appropriate to impose an immediate term of imprisonment, it must follow that the sentencing judge erred in concluding that it was in order to impose a suspended term of imprisonment.
Despite the ingenuity of that argument I do not find it persuasive. To begin with, it inverts the order in which the Sentencing Act requires a sentencing judge to consider matters.[1] The judge approached the task in the correct order. In the second place, the judge did refer in her Honour’s sentencing remarks to all of the mitigating factors mentioned, and it is plain that she took them into account in formulating the sentence imposed. Her Honour stated that she was satisfied that the appellant’s prospects of rehabilitation were reasonably good and that she regarded herself as bound to impose a sentence which maximised those chances. But she also observed, as I think with respect she should have, that she regarded deterrence and particularly general deterrence as important sentencing considerations in cases of this kind. The judge considered the submission that it would be appropriate to adjourn the charges on an undertaking without entering a conviction. But her Honour rejected it. She concluded that the offences in this case were just too serious to warrant that sort of approach.
[1]Dinsdale v The Queen (2000) 202 C.L.R. 321 at 327 [12] – [15], per Gleeson, C.J. and Hayne, J.
I see no error in any of that. The judge approached the matter by reference to the applicable principles of sentencing and reached a particular view. It may not be the same as the view that some other judges would reach. But I think nevertheless that it was one to which she was entitled to come. It is after all the sentencing judge’s intuitive synthesis that is supposed to be determinative of the sentence imposed and where as here it has been formulated in accordance with principle it should be allowed to stand. The sentencing judge took a more serious view of the appellant’s offending than some others might have, and it is reflected in her Honour’s conclusion that the nature of the offending rendered general deterrence and denunciation important sentencing considerations. But I find no error in the process of reasoning which led her Honour to that conclusion or indeed anything startling or otherwise unacceptable about the conclusion itself. Property invasion and assault occasioning injury are serious offences, even when they are committed by a youth of only 17 years of age, and it cannot be gainsaid that there is need for general deterrence of them. I am unable to accept that a suspended sentence of imprisonment of 15 months was manifestly excessive, even if it were stern.
So to say is not to deny that rehabilitation is ordinarily the paramount consideration in the sentencing of young offenders, or that the incarceration of them in adult prison is to be avoided wherever possible. So much is well established by authority and it makes obvious sense.[2] But where despite those considerations a judge is of the view that a sentence if imprisonment is necessary, then it must be imposed. For as Batt, J.A. recently observed in D.P.P. v Lawrence[3]:
“…the general propositions in R v Mills were just that, general propositions, not of usual or automatic application. Each case depended on its own circumstances, including the circumstances of the offence as well as of the offender: R v Bell[4] and R v Hennen[5]…”
[2]R v Mills [1998] 4 V.R. 235 at 241, per Batt, J.A.; cf. R v Diss [2002] VSCA 14 at [13] and [14], per Brooking, J.A.
[3]D.P.P. v Lawrence [2004] VSCA 154 at [16].
[4][1999] VSCA 223 at [14].
[5][2004] VSCA 42 at [24].
To that may be added that the mitigating considerations which were urged in favour of the appellant did indeed provide the judge with a sound basis for the imposition of a suspended sentence. In point of principle the personal mitigating circumstances of an offender may be just as relevant to the question of whether a suspended sentence ought be imposed as to whether it is appropriate to impose a term of imprisonment.[6] In point of fact the absence of prior convictions and the applicant’s youth, steady employment and prospects of rehabilitation pointed away from a sentence of immediate imprisonment. The imposition of a suspended sentence provided an appropriate means of avoiding an immediate term of imprisonment, while at the same time giving effect to the principal objective of rehabilitation and satisfying the perceived need for deterrence and denunciation.[7]
[6]R v Wacyk (1996) 66 S.A.S.R. 530 at 534; Dindsdale v The Queen (2000) 202 C.L.R. at 349 [86] – [87], per Kirby, J.; Fox & Frieberg, Sentencing 2nd Ed at [9.404].
[7]Dinsdale v The Queen, ibid. at 347 [81].
Counsel for the applicant submitted that it was significant that the Crown had not sought a custodial term and, as I understood the submission, it went as far as that it really was not open to the judge to impose a custodial sentence where the Crown does not seek one. Plainly however that is not right. While of course a judge would ordinarily listen intently to all that the Crown may say on the subject of penalty, just as he or she would listen to counsel for the prisoner, it is in the end the responsibility of the judge to formulate the sentence and with regard to a broader range of considerations than to the Crown may sometimes seem important.
The argument based on the sentence of fifteen months imposed on James for the offence of arson seems to me also to be misplaced. The seriousness with which the offence of aggravated burglary is regarded is reflected in the fact that the maximum penalty for the offence is twenty five years imprisonment. That may be contrasted with the maximum penalty for arson of only fifteen years. Aggravated burglary is regarded as being of itself a serious offence and so it does not necessarily follow from the fact that arson may be more destructive than aggravated burglary that the arsonist should receive a greater sentence than the burglar. Of course the difference between maximum sentences does not mean that every count of aggravated burglary is more serious than every count of arson. There will be instances of arson that will be much graver crimes than most types of aggravated burglary. But it does mean that comparisons of sentences are likely to be of limited utility.
Notions of parity in the strict sense imply that offenders should receive comparable sentences for comparable offences, and notions of parity in the broad sense, or more accurately notions of fairness, imply that offenders ought receive comparable sentences for offences of comparable criminality. So in each case there must be brought into account the particular circumstances of each offence and of each offender. In this case the differences between the offences of aggravated burglary and arson, the circumstances in which each offence was committed, and the personal circumstances of each offender make comparisons difficult. Despite therefore that James’ actions in throwing a Molotov cocktail may in some sense appear more serious than the actions of the appellant in entering the factory as a trespasser with intent to assault, I see no such disproportion between sentences and criminality as to mean that the appellant’s sentence was manifestly excessive.
Aggravating circumstances
I turn to the second ground of appeal and so to the contention that the judge erred in finding, and treating as an aggravating circumstance of the applicant’s offences, that Jordan Griffin was “justifiably frightened” by being confronted by the three offenders. The argument advanced in support of that contention is that there was insufficient material before the judge to sustain such a finding beyond reasonable doubt and therefore that that it was not open for the judge either to make the finding or to act on it.[8] The argument is not persuasive.
[8]R v Storey [1998] 1 V.R. 359 at 370 at 371; Cheung v The Queen (2001) 209 C.L.R. 1 at 12 [14].
In the passage of the judge’s sentencing remarks which is the subject of complaint, her Honour said:
“7.The behaviour of each of you was outrageous, and you each must have understood the gravity and probable consequences of your actions. Jordan was justifiably frightened by being confronted by the three of you, and you, Ryan, were aware at the time you entered those premises that a person may have been inside…”[9]
[9]Emphasis added.
But in order to understand the significance of what her Honour there said, it is necessary to go back to a point a little earlier in the sentencing remarks where her Honour stated:
“5.It is not necessary for me to recount in any greater detail the facts of these matters, as they are on transcript, and the matter having been opened in some detail by the learned prosecutor, and that opening accepted by your respective counsel.
6.I proceed to sentence each of you on the basis of the facts so summarised by the prosecutor, and discussed during the course of the plea hearing.”[10]
[10]Emphasis added.
The facts so summarised by the prosecutor included the following:
“Shortly after the incident, Harold, James and Glenn attended the premises at Palm Springs Spas situated at 219 Nepean Highway, Mentone, which is the Griffin’s family business. Jordan Griffin was working alone at that time. Jordan Griffin heard knocking at the door and he observed Harold and James, together with Glenn in the car-park.
As Harold as leaving she gestured as though she was holding a gun and said ‘you’re dead, your whole family’s dead, it’s been arranged. I spoke to the boys at Lygon Street.
Griffin took that threat seriously. After they left the premises Jordan went outside to check upon his van. A few minutes later, all three accused returned to the premises and Harold and Glenn assaulted Jordan Griffin inside the factory. Further, Harold threatened to kill Jordan and his family and then punched him [in] the head. She then told Glenn to assault him, which he did by slapping him twice.
Jordan Griffin picked up a steel pole, found within the factory, to protect himself. In response Harold, James and Glenn left the factory.”
As it appears to me from those passages, her Honour’s intention was to base the sentence upon the facts summarised by the prosecutor, and agreed in by counsel for the offenders, and her Honour’s observation as to Jordan being terrified was therefore really no more than a sort of condensed summary or highlight of part of those facts.
It may be open to question what the judge was referring to. Her Honour may have been directing herself to the prosecutors’ statement that Jordan had taken Harold’s threat seriously. Equally, her Honour may have been referring to the statement that Jordan was sufficiently concerned by the assaults launched upon him at the factory to pick up a metal bar to fend off his attackers. As a matter of semasiology, it would not be inappropriate to describe either condition in terms of being frightened, albeit that other possibilities present themselves. But be all that as it may, I would not take her Honour’s observation as going beyond the facts summarised by the prosecutor. As has been seen the judge was at pains to make clear that she was basing the sentence on the facts summarised by the prosecutor and to point out that they were recorded in the transcript. In those circumstance it can hardly be thought that a passing reference to Jordan being frightened by being confronted by the three offenders was meant to convey something different. If it had been taken to mean something different it is almost certain that counsel would have commented upon it at the time that sentence was imposed. Needless to say, they did not.
Conclusion
In my judgment no error has been shown in the learned sentencing judge’s sentencing remarks and it has not been demonstrated that the sentence is otherwise manifestly excessive. I would dismiss the appeal.
VINCENT, J.A.:
I agree that this appeal must be dismissed, and I do so for the reasons given by Nettle, J.A. I would make only one further comment. It is important to keep clearly in mind the proper function of this Court when considering an appeal against sentence. Intervention is only justifiable, as a matter of law, when some error in the sentencing process can be detected. In the present case, it would be necessary to conclude that it was not open to the sentencing judge to impose the sentences handed down upon the appellant. In other words, we would need to find that the sentence was simply outside the range of those available to a sentencing judge properly exercising his or her discretion in the circumstances.
Whilst other judges may well have arrived at a different result, I do not consider that it could be said that the exercise of discretion in her Honour's case has miscarried in the fashion that I have described
CUMMINS, A.J.A.:
I am unable to agree, I regret to say, with the learned presiding judge and with Nettle, J.A.
As can sometimes happen in matters of sentencing, the judge below was faced with two polarities. The first was the nasty, frightening behaviour, both which the appellant engaged in himself, and in the company in which he was. The second is the demonstrable fact that the appellant is a decent young man who made one brief lapse, who was 17 and a half years of age at the time and who has his life before him.
The polarities are to be resolved, first, by reference to fact and, second, by reference to principle.
As to fact, it is undoubted, as Nettle, J.A. has graphically surveyed, that the offences were nasty and frightening, and they were in company. However, three things also stand out. The first is, although in company which is critical, the
appellant's own personal conduct, the two slaps with an open hand (at the direction of the older accused), was of a significantly limited character. Second, he desisted voluntarily from the far more serious bomb-throwing in a home which occurred by the others later. I agree with Mr Meredith that the impressive victim impact statement is largely (although not wholly) reflective of the home behaviour as to which the appellant played no part. And, thirdly, he was plainly under the influence of an older woman and of others. I agree entirely with Mr Meredith that this was an immature folly, and I regard it as one brief lapse in an otherwise commendable young life with a worthwhile future ahead.
I note that one of the references says of the appellant:
"Ryan has confided in me since regarding his arrest in January 2003. He has clearly shown to me that he will not be involved in any similar behaviour again. Ryan has since learnt a lot about himself and his responsibilities to others, especially his family."
Then the referee, having commented upon Ryan's excellent character and commitment, stated:
"I am proud to be a character reference for Ryan. He is a well regarded and well respected young man around Langwarrin, both in sporting circles and the general community. Many a parent should be grateful to Ryan for his first-hand role in the character building development of their children."
This appellant, in my view, is a decent young man with a worthwhile future. The question is whether it should be burdened, if not afflicted, for the rest of his life by one brief error of serious, but limited, physical character.
Looking to principle, punishment is the first principle, and I consider the appellant has been punished already by his experience through the courts. The third principle is specific deterrence. I consider he needs no deterrence; he will deter himself. The fourth principle is rehabilitation. He will rehabilitate himself. It seems to me the only justification for imposing a sentence of imprisonment upon this young man is general deterrence, and the question arises whether his future should be sacrificed on that principle.
In my view, unequivocally, it should not be. The necessary principle involved in imposing a sentence of suspended imprisonment is, as s.21(3) states, that:
"a court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act."
I do not consider a sentence of imprisonment was appropriate. Further, bearing in mind what the learned presiding judge has very rightly said about this Court's function, I consider it was not open to the judge below to impose a sentence of imprisonment upon a decent young man for one limited lapse in his life.
I would grant the appeal. I consider the proper sentence below would have been no conviction being recorded.
VINCENT, J.A.:
The order of the Court is that this appeal is dismissed.
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