R v Hillman
[2000] VSCA 139
•27 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 299 of 1999
| THE QUEEN |
| v |
| CHRISTOPHER ROBERT HILLMAN |
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JUDGES: | ORMISTON, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 July 2000 | |
DATE OF JUDGMENT: | 27 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 139 | |
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CRIMINAL LAW – Sentencing – Burglary and theft offences committed while applicant on parole – Whether sentencing judge gave sufficient weight to applicant's age and rehabilitation prospects – Sentence imposed not manifestly excessive – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr D. Wraith | Victoria Legal Aid |
ORMISTON, J.A.:
I will ask Mr Justice Chernov to deliver the first judgment.
CHERNOV, J.A.:
On 16 November 1999 the applicant, who is now 22 years of age, pleaded guilty in the County Court at Melbourne to 29 counts of burglary, 28 counts of theft, one count of criminal damage, one count of handling stolen goods and one count of attempted burglary.
The offences of burglary and theft were committed by the applicant on 26 separate occasions during the period 4 November 1998 to 3 February 1999 while he was on parole. The applicant stole from various premises personal items such as jewellery, watches, electrical goods, golf clubs and the like. The value of the stolen property in question was over $80,000 and very few of the stolen items have been recovered.
His Honour noted that the applicant usually took the stolen goods to Springvale and either sold them there or traded them in for drugs which he then used. The maximum penalty that was applicable in relation to most of the offences was ten years' imprisonment.
The applicant admitted a very large number of prior convictions which began in December 1993 when he appeared in the Children's Court at the age of fifteen. More particularly, his Honour noted that the applicant admitted 36 convictions from five Children's Court appearances which resulted in his serving two terms in youth training centres. The applicant also admitted, said his Honour, 164 prior convictions from eight court appearances, which resulted in four terms in youth training centres and two terms of imprisonment. The offences included a very large number of burglaries and thefts, three occasions when the applicant failed to answer bail, and two occasions when the applicant escaped from custody.
In November 1998 the applicant was released on parole. At that time, as I understand it, he had not completed a period of detention in a youth training centre imposed on him in April 1997. On 4 February 1999 the applicant was arrested and was required to complete that sentence and it was common ground before his Honour that he would complete it on 16 February 2000 and that any term of imprisonment that his Honour might impose would commence on that day.
His Honour imposed two-year terms of imprisonment in respect of each of the counts of burglary and theft, twelve months in respect of the count of criminal damage, two years on the count of handling stolen goods, and twelve months' imprisonment on the count of attempted burglary. By ordering cumulation in relation to certain counts, his Honour sentenced the applicant to a total effective term of five years' imprisonment and fixed a non-parole period of four years.
On 25 November 1999 the applicant filed a notice of application for leave to appeal against sentence on four grounds. This application was rejected by the President on 20 March 2000 and by notice dated 8 April 2000 the applicant elected to have his application for leave to appeal against sentence determined by a Court of Appeal pursuant to s.582 of the Crimes Act 1958.
It is clear from the material that was before his Honour that the applicant's personal circumstances were, to say the least, tragic. He had, as his Honour observed, a most deprived childhood, his parents were not married and he apparently had no great knowledge of his father. His mother found it difficult it raise him and his younger brother and they were both placed in institutions from an early age. From time to time his mother took him back, but only for the purpose, as it seems, of enabling her to obtain Social Service payments and other payments by reason of his presence at the home. His mother has had a succession of partners and he has a total of seven half-siblings and step-siblings. He has not had any contact with his father for approximately six years and none with his mother since November 1998.
At school the applicant had great difficulties with his studies and generally did not get on with his fellow students or his teachers. He attended only to mid-primary school.
According to the report of the psychologist, Mr Ives, the applicant had a violent nature and from an early age became involved in drugs, including heroin. In 1996 he was sexually assaulted by inmates at Pentridge and, as he understands it, has been diagnosed as suffering symptoms of post-traumatic stress. According to the report of Mr Ives, the applicant participated whilst he was in prison in programs in anger management, stress management and anxiety management and attended assertiveness to violence programs. He also attended other programs and has undertaken a chef's course.
The report of Ms Hooker, who is a Youth Development Officer at Port Phillip Prison, speaks of the active and positive contribution of the applicant to the programs and activities conducted at the Youth Unit at the prison. She speaks of his positive role and his participation in many of the activities at that unit. She further speaks of the applicant's current genuine desire to resolve what she calls "the issues that had led to his offences and to address his criminal behaviour". I will come back later to say something more about those two reports and their contents.
The only grounds that were argued before us were that the sentence that was imposed on the applicant was manifestly excessive and in that context it was contended that his Honour did not give any or any sufficient weight to the applicant's youth or his rehabilitation prospects.
That his Honour knew and took into account the applicant's youth in his sentencing considerations is, in my opinion, made clear from his sentencing remarks in which he specifically refers to the applicant's youth in the context of his analysis of the submission made on his behalf that his Honour should make an order under s.18Q of the Sentencing Act 1981. The mere fact that his Honour concluded that he could not exercise his discretion under that provision in the circumstances of the case (because he proposed to impose a term of imprisonment longer than one year) does not mean that thereafter he put the applicant's age out of his mind for sentencing purposes. It is clear enough that it was a factor to which his Honour must have had regard in the sentencing consideration and, in my view, there is no basis for contending that his discretion miscarried because he gave insufficient weight to it.
As to the applicant's prospect of rehabilitation, his Honour was, as is apparent from his sentencing remarks, well aware of the deprived childhood that the applicant experienced and of the material that was put forward going to the applicant's rehabilitation. The reports to which I have referred produce little evidence that the applicant has sound prospects of rehabilitation in the future. It is true that both reports have recognized that the rehabilitation of the applicant has been positive to this point in time, while he was within the prison system. But, as Mr Ives has observed, the applicant lacks personal and educational resources and is handicapped by the psychological conditions resulting from his past experience. He also opined that, if the applicant were released, in order to enable him to cope without re-offending, he would require sufficient personal support and assistance "to successfully cope with the complexities, decisions and stress of normal living".
One of the positive aspects of Mr Ives's report for relevant purposes was that in his opinion the applicant is at least aware of the difficulties that await him upon release from prison. He also considered that the psychological, social and vocational programs that the applicant pursued in prison would stand him in good stead.
In my view his Honour was clearly aware of the contents of both reports and it must be assumed, I think, that he took them into account in exercising his sentencing discretion.
In my opinion there is no basis for the submission that his Honour's sentencing discretion miscarried because he failed to take into account sufficiently and give due weight to the age of the applicant or to his rehabilitation prospects.
On the issue of manifest excess, Mr Wraith, who appeared for the applicant, contended first that the head sentence of five years was manifestly excessive. This is a claim, of course, that does not admit of much argument and it also does not raise the question of what sentence this court would have imposed had it been exercising the judge's sentencing discretion. The only question is whether the sentence is within the range of sentences properly available to him.
In my opinion the total effective sentence could not be reasonably said to be outside that range given the serious anti-social acts that were committed by the applicant over a lengthy period which resulted in victims losing possession of personal possessions, at least some of which probably had as much sentimental as material value to their owners, the seriousness with which Parliament regards these offences as is reflected in the maximum terms of imprisonment prescribed for them in the legislation, the extraordinary number of prior convictions that have been accumulated by this young offender, his failure to honour bail or parole conditions and the relevance in this case of the principles of general and specific deterrence. I am conscious that in his sentencing remarks, his Honour said that these principles far outweigh any and indeed all of the matters submitted on behalf of the prisoner. Nevertheless, when the factors which I have just recounted are balanced against the mitigating circumstances which were put before his Honour, the total effective sentence is not outside the relevant range.
Mr Wraith next argued that the non-parole period was disproportionately high and did not sufficiently reflect the applicant's prospects of rehabilitation. The principal purpose of a non-parole period is to provide for mitigation of punishment in favour of rehabilitation through conditional freedom. Hence, due weight must be given to the rehabilitation that the applicant has achieved and the prospects of it being accomplished in the future.
Both Mr Ives and Ms Hooker have provided evidence, as I have said before, that the applicant has achieved a degree of rehabilitation within the prison system. However, as I have also mentioned, Mr Ives expressed concern about the applicant's ability to cope outside the prison system and being able to progress the rehabilitation process.
Mr Kayser, who appeared for the respondent, submitted that, since on the evidence the applicant is more likely to progress his rehabilitation within the prison system, a longer non-parole period is of advantage to him and that, in the circumstances, it was open to his Honour to impose a four year term. Mr Wraith, on the other hand, argued that these questions should be left to the Parole Board.
There is probably much to be said for Mr Wraith's contention, but in my view the question really is whether, in all the circumstances of this case, the non-parole period fixed by his Honour was within the range that was open to him. Even if it could be properly said that it was high, given the applicant's past disregard of bail and parole conditions, the evidence on the question of rehabilitation and the other factors to which I have referred, the non-parole period that was fixed by his Honour was, in my opinion, within the range that was open to him. Consequently, in my view this application should be dismissed.
ORMISTON, J.A.:
I agree.
BUCHANAN, J.A.
I also agree.
ORMISTON, J.A.:
The order of the court, therefore, is that the application be dismissed.
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