R v Lynch
[2004] VSCA 173
•23 September 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 96 of 2004
| THE QUEEN |
| v. |
| COLIN LEE LYNCH |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 September 2004 | |
DATE OF JUDGMENT: | 23 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 173 | |
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Criminal law – Sentence – Breach of community based order and order suspending sentence – Suspended sentence restored – Rehabilitation – Effect of incarceration – Sentences imposed for breach of community based order wholly suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr T. Kassimatis | Victoria Legal Aid |
CALLAWAY, J.A.:
I shall invite Buchanan, J.A. to deliver the first judgment in this case.
BUCHANAN, J.A.:
On 5 March 2002 the appellant pleaded guilty to a presentment containing two counts of burglary (counts 1 and 3), three counts of theft (counts 2, 4 and 5) and one count of arson (count 6). The appellant was convicted and released on a community-based order for two years in respect of counts 1 to 5. A sentence of six months' imprisonment was imposed in respect of count 6 but was wholly suspended for a period of two years.
The appellant, who is now 22 years old, was born to teenage parents who were unable to care for him. The appellant was adopted and brought up by David and Linda Parsons. Mrs Parsons is the appellant's great-aunt.
The Parsons conducted a business packaging and warehousing confectionery at premises in Melton. For a time the appellant worked in the business. On 5 May 2001 the appellant took a key to the factory premises from his adoptive parents' house and stole a small quantity of lollipops from the warehouse. The appellant gave out the lollipops at a party that night.
In the evening of 24 May 2001 the appellant broke into the factory, loaded 14 pallets of confectionery valued at $38,716 on to a truck and drove to premises in Altona where, with the help of another person, he unloaded the confectionery. The co-offenders intended to sell the confectionery and share the profits. The appellant drove the truck away and set it alight. The truck was valued at $25,000. Insurers paid the value of the confectionery to the Parsons and the value of the truck to its owner. The theft was motivated by greed and the appellant's resentment of David Parsons, with whom he had long been in conflict.
The appellant left school after Year 11 and embarked upon a number of jobs, including working for his adoptive parents. In November 2000 the appellant commenced an apprenticeship as a baker, but was sacked a month before the commission of the theft on 24 May 2001. There were suggestions that he was using drugs at this time. As a result of the commission of the offences the appellant fell out with his adoptive parents.
The appellant had prior convictions on two counts of handling stolen goods and two counts of obtaining property by deception, arising out of one court appearance. He was fined in all $400.
On 27 April 2004 the appellant came before the sentencing judge to be dealt with for breaching the terms of the community-based order and committing offences during the period of the suspended sentence. The appellant had failed to attend for supervision on a number of occasions, completed only five of the 350 hours of the community work which he was assigned and failed to attend for psychological assessment. The suspended sentence was breached by convictions in the Magistrates' Court on charges of burglary, theft, failing to answer bail, trafficking in a drug of dependence and possession of amphetamine. On 29 October 2003 the appellant was sentenced in the Magistrates' Court to a total effective sentence of 12 months' imprisonment with a non-parole period of six months.
As a result of the breaches of the community-based order the appellant was to be re-sentenced for the original crimes. He was re-sentenced to imprisonment for a term of one month on each of counts 1 and 2, six months on count 3, 12 months on count 4 and nine months on count 5. Three months of the sentence on count 5 were cumulated on the other sentences, creating a total effective sentence of 15 months' imprisonment. The suspended sentence was restored and the appellant was ordered to serve the sentence. The restored sentence was ordered to be cumulated on the sentences imposed in respect of counts 1 to 5. A total effective sentence of 21 months' imprisonment was ordered to be served concurrently with the sentence imposed by the Magistrates' Court. His Honour fixed a non-parole period of 12 months from 27 April 2004.
On 18 March 2004 the appellant was released on parole. He returned to live with his adoptive parents and was employed by them in their confectionery packing business. David Parsons gave evidence in the course of the plea that imprisonment had had a salutary effect upon the appellant. He said:
"He has just grown up. He got his life together. He gets up every morning, before he wouldn't get out of bed, he would lay there till 10 or 11, he'd come to work, I'd argue with him all day. But now he's just completely different. … His whole attitude's changed to what it was. Before he was just completely different. … "
Mr Parsons was asked whether he would know if the appellant turned up at work affected by drugs or alcohol and said that he would "know straight away" and confirmed that there were "no signs of that". Linda Parsons corroborated her husband's evidence. She said that the appellant was getting on well with his fellow workers, was punctual, was paying his bills and board and that she was "very happy with him".
There are five existing grounds of appeal and counsel for the appellant has sought to add two grounds with several sub-grounds. I consider that the appeal may be determined on the basis of part of only one ground, namely, that the sentencing judge erred "in failing to have regard or sufficient regard to the appellant's age, his prospects of rehabilitation … "
In his sentencing remarks the sentencing judge referred in passing to the fact that Mr and Mrs Parsons "believe you have now rehabilitated yourself", but did not in terms rely upon that as a mitigating factor or otherwise appear to take it into account in fixing the sentences which he imposed upon the appellant. In my opinion the evidence of the Parsons, who were, after all, victims of the original offences, was striking. I am mindful that considerable praise was bestowed upon the appellant by his adoptive father, and there had previously been ill-will between them. It does appear that experience of prison brought home to the appellant the folly of his earlier ways and engendered in him a determination to reform his way of life. The value of such a transformation in such a young offender is obvious, and in my view every effort should be made to preserve and encourage it.
I should say that in my view the sentencing judge properly restored the suspended sentence. The appellant had been warned of the consequences of committing offences during the term of the suspended sentence. He and those who are minded not to heed like warnings should be made to realise that they are not mere platitudes. Further, the offences committed by the appellant during the term of the suspended sentence were themselves significant.
I would also affirm the sentences imposed upon the appellant as a consequence of his breaches of the community-based order. I would, however, wholly suspend those sentences for a period of two years. I think it is desirable to do so in order to further the rehabilitation which I have described and ensure that it is not derailed by enuring the appellant to prison life and the company of convicted offenders. The position is that the appellant will be released shortly, for he has served the bulk of the restored sentence.
CALLAWAY, J.A.:
I agree.
EAMES, J.A.:
I also agree.
CALLAWAY, J.A.:
Mr Kassimatis, we now strike a problem. Section 27(4) of the Sentencing Act says that before making an order suspending a sentence the court must explain the purpose and effect and consequences of the order or cause it to be explained. The requirement that that be done before the sentence is pronounced is, in our opinion, directory. We understand your client is at present in Beechworth and we see that he is not here today. Would you be in a position to undertake to explain to him again the nature and consequences of a suspended sentence?
MR KASSIMATIS: Certainly, your Honour.
CALLAWAY, J.A.:
I would ask you to make clear to him how easy it is to commit an offence punishable by imprisonment. Common assault is, for example, such an offence. If he commits another offence punishable by imprisonment he will be brought back before the County Court and he may expect, with near certainty, to serve the whole 15 months' imprisonment. I should be obliged if you would explain to him that we are extending this leniency to him because of the efforts that he has made to rehabilitate himself and to give him what will be literally one last chance.
MR KASSIMATIS: If your Honour pleases.
CALLAWAY, J.A.:
On counsel's undertaking, the Court makes the following orders:
The appeal is allowed in part.
The appellant's conviction of the breach of the community-based order made on 5th March 2002, the fine imposed for that breach and the cancellation of the community-based order are affirmed.
The sentences imposed on counts 1, 2, 3, 4 and 5 are affirmed, that is to say:
Count 1 - one month's imprisonment
Count 2 - one month's imprisonment
Count 3 - six months' imprisonment
Count 4 - 12 months' imprisonment
Count 5 - nine months' imprisonment.
The direction that three months of the sentence imposed on count 5 be served cumulatively upon the previously imposed sentences is set aside. In lieu thereof, the Court directs that three months of the sentence imposed on count 5 be served cumulatively upon the sentence imposed on count 4.
That results in a total effective sentence on counts 1, 2, 3, 4 and 5 of 15 months' imprisonment. The Court orders that that sentence be suspended for an operational period of two years beginning on 27th April 2004.
The restoration of the whole of the sentence of six months' imprisonment imposed on count 6 and previously suspended is affirmed.
The direction that that sentence be served cumulatively upon previously imposed sentences is set aside, leaving s.31(6)(b) of the Sentencing Act 1991 to have effect in accordance with its terms.
It is declared that the period of 160 days is to be reckoned as already served under the restored sentence of six months' imprisonment on count 6 and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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