R v M S
[2009] VSC 239
•4 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 10500 of 2008
| THE QUEEN | |
| v | |
| MS | Appellant |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 4 March 2009 | |
DATE OF SENTENCE: | 4 March 2009 | |
CASE MAY BE CITED AS: | R v MS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 239 | |
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Catchwords: Appeal against sentence from the Children's Court - child stealing - sexual penetration of a child - aggravated burglary - burglary - theft - sentencing considerations in s.362(1) of the Children Youth & Families Act 2005 - not outweighed by advances in rehabilitation while in custody - sentence of 27 months detention in a Youth Justice Centre.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Castle | Office of Public Prosecutions |
| For the Appellant | Mr A. Munro | Victoria Legal Aid |
HER HONOUR:
MS appeals against the sentence of 27 months detention in a Youth Justice Centre imposed upon him by the President of the Children’s Court on 28 November 2008. The offences committed by MS in respect of which he was sentenced span the period January to June 2008 and were committed when he was 17 years old. He is now aged 18.
In respect of case number 200802511, on 21 May 2008 the appellant was placed on 12 months probation in respect of the following offences: theft (four charges), indecent assault, attempted robbery (two charges), possessing cannabis (two charges), trafficking in cannabis, criminal damage, unlawful assault and attempting to obtain property by deception (two charges).
These offences occurred variously in an eight week period between 9 January 2008 and 3 March 2008. While on probation, the appellant committed further offences between 1 and 14 June and on 29 June 2008, these offences being; burglary, theft, child stealing, aggravated burglary, theft, sexual penetration of a child under the age of 16 (two charges), attempted sexual penetration of a child under the age of 16 and reckless conduct endangering a person.
On 29 June 2008, the appellant was charged in respect of those offences and remanded in custody. On 10 October 2008, sentencing was deferred until 28 November to allow for the completion of a male adolescent program for positive sexuality assessment. The appellant remained on remand until the date of sentence.
I turn now to the summary of the offences. The offence of indecent assault occurred on 11 February 2008, when the appellant touched the buttocks of a female shopper in a supermarket. On the same day, he stole a bottle of alcohol from another supermarket, and two days later purchased cannabis, attempted to sell some of it and attempted to rob two girls in the street.
When he was arrested later on that night he was found to be in possession of cannabis. When interviewed by the police, he made full admissions in respect of these offences. The following day at 11 pm the appellant cycled to the local hotel to purchase beer. The bottle shop was closed. As he cycled home he stopped at a house and knocked on the door and asked the occupant, a woman entirely unknown to him, for money.
She refused and as she started to close the door he told her he had a gun behind his back and that she should ring the police. The woman slammed the door and dialled 000. The appellant punched the flywire screen door, tearing the screen as he did so. This conduct forms the subject of the charges of criminal damage and unlawful assault. The police attended and he was apprehended by them nearby, and again when interviewed by the police made full admissions.
On 3 March, that is little more than a fortnight later, the appellant stole a CD player and remote control from a car parked outside his house and then went to Cash Converters and attempted to exchange those items for cash. This conduct forms the subject of theft and attempted obtaining property by deception. The appellant then went to a supermarket in Moonee Ponds and stole four DVDs, and then went to another supermarket, also in Moonee Ponds, and stole four packets of DVDs. It is this conduct which is the subject of two of the theft charges. The DVDs were valued at $250. The appellant was arrested outside the supermarket and again when interviewed by the police made full admissions.
Case number X01835061. In June 2008 MS was living at Unit 2/781 Point Nepean Road, Rosebud. His grandmother also lived at Rosebud and he was acquainted with the families who lived next door to her, a woman and her three sons. About a fortnight before 29 June 2008, the appellant entered this woman's house at night and stole $50 from her purse. He told her he had done this and made arrangements with her to pay the money back.
On the night of 28 June he went to a party where he drank alcohol and smoked cannabis. He was seen to be behaving strangely and was asked to leave. At 1 am the appellant went to his grandmother's house from which he took a bicycle. He then went next door and entered that house through a rear door which he knew would not be locked.
The mother was asleep on the couch with her nine year old son. The appellant went into an empty bedroom, he urinated on the bed and on a cardigan which lay on the bed and then went into the kitchen and searched the cupboards and stole a purse, cigarettes and a lighter which were usually left in the kitchen bench.
The appellant then entered the bedroom of the youngest boy who was aged five. The boy was awake watching DVDs and recognized the appellant. MS then took the boy from the house on the pretext that they would play computer games. The appellant put him on the bicycle and took him to where he was then living and this conduct gives rise to the charge of child stealing.
MS there performed oral sex on the child and got the child to do the same to him. He also attempted anal penetration and it is this conduct which gives rise to the charges of sexual penetration of a child under the age of 16 and attempted sexual penetration of a child under the age of 16. MS then abandoned the child, who was then dressed in his pyjama pants and a black T shirt, in the vicinity of Point Nepean Road, Rosebud, and it is this conduct which forms the subject of the charge of reckless conduct endangering a person.
The child was seen by the driver of a passing ambulance to be wandering along the Point Nepean Road. The child appeared frightened and distressed, and the driver took him to the Rosebud Hospital where he was met by the police. MS was later arrested at his unit, and the police there found the boy’s pyjama top on the floor covering the bicycle that the appellant had taken from his grandmother’s house.
The appellant, in this interview with the police, admitted entering the house and taking the child away, but he did not disclose committing the sexual offences and was not asked any questions in respect of them because the police at that time were not aware of the allegations. The appellant was further interviewed by the police once the complaints had been made and on that occasion he exercised his right to remain silent.
Victim impact statements, tendered in court as Exhibits A and B, made by the young boy’s parents speak of the impact MS's actions have had on the young boy and on his family. The young boy is now having counseling and the family have moved suburbs in an attempt to make the child feel safe. As stated previously, MS is now aged 18. His previous court appearances have related to offences of theft (seven charges) and burglary (three charges).
These offences were dealt with in the Children’s Court between January and May 2007, and in each instance the appellant was dealt with without conviction and placed on an adjourned undertaking or probation. The offences the subject of case number X01830561, which include the offences of child stealing, aggravated burglary and the sexual offences were therefore committed not only while MS was on probation, but within three weeks of the probation order being imposed by the Children's Court on 21 May 2008.
Various pre-sentencing reports have been obtained including a report from MAPPS. Mr Munro, who appeared on behalf of the appellant, has relied upon the antecedents and domestic circumstances as outlined in those reports, which I accept, and as I understand Mr Munro does not dispute the various conclusions and findings therein.
It is apparent that the appellant has suffered an unsettled and dysfunctional childhood and adolescence. He has developed a strong but volatile relationship with his mother, who suffers from mental illness, and their relationship is described as co-dependent. The appellant has been using alcohol and drugs since the age of 13.
The reports indicate that the child stealing and sexual offences were impulsive and occurred in the context of significant alcohol and drug abuse and occurred also in the context of escalating criminality. The appellant has been assessed as a high to moderate risk of re-offending and in particular in respect of sexual re-offending.
Mr Munro frankly conceded that a period of detention is here appropriate but that advances in the appellant’s rehabilitation since he has been in custody are such that less weight may be given to the sentencing considerations enumerated in s.362(1)(f) and (g) of the Children, Youth and Families Act 2005.
In particular, he submitted that by reason of MS’s abstinence from alcohol and drugs over the last six months and his gaining insight into his motivations for his offending conduct, in particular the offences committed against the young boy, there is now less need to protect the community from him.
Mr Munro has submitted that by reason of MS’s steps towards his rehabilitation, a long period of parole is not appropriate. Mr Castle, on behalf of the respondent, submitted that even accepting counsel’s instructions without supporting material as indicative of the appellant’s acknowledgement of the causes of the offending behavior, these nonetheless remain highly serious offences, and where the legislation does not provide for a predetermined period of actual confinement, the long term supervision of the appellant is consistent with the intention of the legislation and is desirable for the appellant's eventual rehabilitation.
The Crown submitted that in light of the supervision it did not press for reporting conditions pursuant to s.11(2) of the Sex Offenders Registration Act.
The maximum penalties for each of the offences, the subject of the appeal have been detailed in the Crown summary tendered as Exhibit D. I will not restate them but have had regard to them in fixing the appropriate disposition. Further, I have had regard to the maximum period of detention to be imposed for an aggregate of offences is three years.
In sentencing the appellant, I have regard to the matters detailed in s.362(1)(a) to (g) inclusive and s.412 of the Children, Youth and Families Act 2005. In that regard I take into account the following:
(1) The appellant is now aged 18.
(2) He was 17 when he committed these offences.
(3) He was on probation at the time he committed the subject of Case No. X01835061.
(4) That this is his first period of detention.
(5) That he has an unsettled and dysfunctional childhood and adolescence not of his own making.
(6) That he has been exposed to alcohol and drug use from a very early age.
(7) In particular, his drug use was facilitated by his own mother's drug habits.
(8) His mother is now living in New South Wales, and although he previously intended to live with her, he has now resolved to live independently in Victoria.
(9) He has a good work record and in the past has been a hard worker.
(10) He has the prospect of employment at an abattoir at Carrum Downs.
(11) He has previously maintained that he did not remember committing the sexual offences. He now, through his counsel, instructs that his claimed absence of memory is false because he was embarrassed by the nature of the offences.
(12) He instructs his counsel that he now has insight into the reasons for committing the sexual offences.
(13) He has been drug and alcohol free since being taken into custody, and as I understand the submission, has resolved to remain so.
(14) The appellant has pleaded guilty to the offences.
(15) The nature and circumstances of the offences, in particular the offences of child stealing and sexual penetration, and attempted sexual penetration of a person under the age of 16 where the child was five, and the reckless conduct endangering persons where the child was left in the vicinity of a main road in the early hours of the morning, are all serious offences.
Although this appeal is a hearing de novo and I am exercising this Court’s sentencing discretion, taking into account all of the above matters, including the need to protect the community from the wrongful acts of the appellant, and the suitability of the sentence to the appellant, and being satisfied pursuant to s.412(1)(c) of the Children, Youth and Families Act that no other sentence is appropriate, and acting upon the pre-sentence report dated 20 March 2008, I propose to impose the same sentencing orders as that imposed by the learned President of the Children’s Court.
That is, therefore, I declare that in respect of the child stealing the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 18 months. In respect of aggravated burglary, the appellant is to be convicted and ordered to be detained in a Youth Justice Centre for a period of 12 months. In respect of theft, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of six months. In respect of burglary the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of six months. In respect of theft, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of six months. In respect of sexual penetration of a child under the age of 16, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of 18 months. In respect of sexual penetration of a child under the age of 16, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of 18 months, and I order that 12 months of that sentence be served concurrently with the other sentences so imposed.
In respect of attempted sexual penetration of a child under the age of 16, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of 12 months, and I order that nine months of that sentence be served concurrently with the sentences so imposed. If that needs to be expressed otherwise, that the sentence in respect of the sexual penetration of a child under the age of 16 years, that six months of that be served cumulatively with the sentences so imposed and in respect of the attempted sexual penetration, that three months of that sentence so imposed be served cumulatively with the sentences so imposed.
In respect of the reckless conduct endangering a person, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of nine months. In respect of indecent assault, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of four months. In respect of theft from a motor car, the appellant is convicted and ordered to be detained in a Youth Justice Centre for three months. In respect to theft from a shop, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. In respect again of theft from a shop, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
Attempted obtaining property by deception, the appellant is convicted and ordered to be detained in a Youth Justice Centre for three months. Attempted obtaining property by deception, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. Attempting to commit an indictable offence, the appellant is convicted and ordered to be detained in a Youth Justice Centre for three months. Possessing cannabis, the appellant is convicted and ordered to be detained in a Youth Justice Centre for three months. Trafficking cannabis, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of four months. Attempting to commit an indictable offence, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
Criminal damage, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. Unlawful assault, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. Theft from a shop, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. Breach of a probation order. I make no order in respect of that. Likewise in respect of the second breach of the probation order, I find the matter proved but make no order in respect of it.
I declare that were it not for the plea of guilty, I would otherwise have imposed a sentence of 36 months’ detention and I declare that the appellant has served, by way of pre-sentence detention, a period of 246 days. That is a total effective sentence of detention in a Youth Justice Centre of 27 months.
Since sentencing the appellant on 2 March 2009, it has been confirmed consistently with the certified extracts that the appellant was convicted and sentenced in the Children’s Court in respect of kidnapping, an offence with which he was not charged. As this appeal is a hearing de novo, and the orders of the lower court are set aside, and in any event the sentence imposed in respect of the offence of kidnapping must be invalid, I sentence the appellant in respect of the offence of child stealing.
The offence of child stealing carries a maximum penalty of five years’ imprisonment, and the offence of kidnapping carries a maximum of 25 years’ imprisonment. Although I sentenced on the same facts and circumstances as before the President, regard was not had to the applicable maximum penalty. As I have not yet signed the triplicate, the sentence has not yet passed into record and may be varied.[1]
[1]R v Hodgkinson [1954] VLR 140.
Accordingly, I propose to sentence the appellant in respect of the offence of child stealing with regard to the applicable maximum penalty.
The offence of child stealing is a serious offence and this is to be regarded as a serious example of it. The appellant persuaded the young boy, aged five, to leave his bedroom and his home at 1.00 a.m. in the morning and go with him to his unit with the specific purpose, it is now admitted, to engage in sexual activities with him. This must put the commission of this offence at the high end of offences of this kind.
I formally set aside the orders of the learned presiding judge, and in their stead order as follows:
That in respect of the offence of child stealing, the appellant is convicted and sentenced to 12 months’ detention in a Youth Justice Centre. In respect of the offence of aggravated burglary, the appellant is convicted and ordered to be detained in a Youth Justice Centre for 12 months. In respect of theft, the appellant is convicted and ordered to be detained in a Youth Justice Centre for six months.
In respect of the offence of burglary, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of six months. In respect of theft, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of six months.
In respect of the offence of sexual penetration of a child under the age of sixteen, the appellant is convicted and sentenced to 18 months’ detention and this sentence is to serve as the base sentence.
In respect of the further offence of sexual penetration of a child under the age of sixteen years, the appellant is convicted and sentenced to a term of 18 months’ detention and I order that six months of that sentence be served cumulatively with the sentence imposed on the base sentence, that is, 24 months’ detention.
In respect of the offence of attempted sexual penetration of a child under the age of sixteen, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of 12 months, and I order that three months of the sentence so imposed be served cumulatively with the sentences so imposed on the base sentence, that is, 27 months’ detention.
In respect of the offence of reckless conduct endangering a person, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of nine months. In respect of the offence of indecent assault, the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of four months. In respect of the offence of theft from a motor vehicle, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. In respect of the offence of theft from a shop the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. In respect of the offence of theft from a shop, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In the offence of attempting to obtain property by deception, the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In respect of the attempting to obtain property by deception, the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. On the offence of attempting to commit an indictable offence, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In respect of the possession of cannabis, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. For the offence of trafficking in cannabis, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of four months.
In respect of attempting to commit an indictable offence, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In respect of criminal damage, the appellant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months. In respect of unlawful assault, the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In respect of theft from a shop the defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of three months.
In respect of breach of a probation order, that order was revoked and is now revoked, and further in respect of the breach of the probation order, being charge No.17, that breach of the probation order is proved. That is a total effective sentence of 27 months. I state that but for the pleas of guilty, I would have imposed a sentence of 36 months and I declare now the appellant has already served by way of pre-sentence detention a period of 247 days.
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