R v Manners
[2002] VSCA 161
•26 September 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 267 of 2001
| THE QUEEN |
| v. |
| DARREN JOHN MANNERS |
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JUDGES: | PHILLIPS, C.J. and PHILLIPS and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 September 2002 | |
DATE OF JUDGMENT: | 26 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 161 | |
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Criminal Law - Sentencing - Theft by tradesman at subject premises - Breach of trust - Sentence of three years' imprisonment with non-parole period of two years’ not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T.P. Burke | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr R.J. Marron | Kerry Clancy |
PHILLIPS, C.J.:
I shall ask my brother Chernov to give the first judgment.
CHERNOV, J.A.:
On 18 October 2001 the appellant, Darren John Manners, who is now aged 35 years, pleaded guilty in the County Court at Wangaratta to a presentment preferring one count each of burglary and attempted burglary contrary to ss.76 and 321M respectively of the Crimes Act 1958. He pleaded not guilty to a second presentment preferring a single count of theft contrary to s.74 of the Crimes Act. The maximum penalty for the offence of theft is ten years' imprisonment. Following a trial relating to the charge of theft, the jury returned a verdict of guilty. The appellant admitted three prior convictions, but as the learned sentencing judge observed in his sentencing remarks, they are not relevant for present purposes. After hearing a plea in mitigation made on his behalf, on 26 October 2001 his Honour sentenced the appellant on the count of theft to be imprisoned for three years and fixed a non-parole period of two years. In respect of the crimes of burglary and attempted burglary, the judge sentenced the appellant to a term of fourteen days and seven days' imprisonment respectively. Thus, the appellant was sentenced to a total effective sentence of three years' imprisonment with a non-parole period of two years.
On 7 November 2001 he filed a notice of application for leave to appeal against sentence. At the hearing of the application for leave to appeal on 1 March 2002, the appellant's counsel informed the judge that the appellant proposed to substitute a number of grounds which he specified in support of his application and, in that context, his Honour granted the appellant leave to appeal against the sentence imposed in relation to theft. On 17 September 2002 the Registrar granted the appellant leave to amend the grounds of appeal as follows:
(a) that the sentence is manifestly excessive in all the circumstances;
(b)that the learned sentencing judge erred in that he placed little or no weight on
the applicant's prospects of rehabilitation;
(c)that the learned sentencing judge erred in that he placed excessive weight on the fact that, and the extent to which, the offence constituted a breach of trust;
(d)that the learned sentencing judge erred in that he found that the offence was not opportunistic in nature;
(e)that the learned sentencing judge erred in that he found that the offence was deserving of condign punishment; and
(f)that the learned sentencing judge placed excessive weight on the need for general deterrence.
Before dealing with the arguments in support of the grounds, it is necessary to set out briefly the background to the appeal. On 5 August 1997 the appellant and another carpet layer were laying a carpet in a number of areas of a house in Wangaratta. During the course of this undertaking, the appellant stole from the house a metal security box which was fixed in a concealed location in one of the bedrooms being used principally as an office. The box was secured near the bottom of the bedroom wardrobe and in ordinary circumstances it would not be visible, but because the carpet was laid into the wardrobe the wardrobe doors had to be opened, and when the appellant was on his hands and knees laying the carpet he sighted the box and then took it. According to his Honour, he probably did so by using a screwdriver or like implement to pry it away from its fixed position. The security box contained numerous items of jewellery and other assets, including heirlooms of historical and sentimental value to their owners. Its contents were valued in excess of $27,000 and most of the stolen goods have not been located. The theft was discovered by the owners on 28 August 1997. In July 2000 the security box, containing some items, was discovered by chance in a creek near the country town in which the appellant was raised. He visited his parents there from time to time. Eventually, the police investigations led them to the appellant and, on 15 November 2000, they attended his home and executed a search warrant. In the kitchen they found a watch and a seed pearl brooch which were subsequently identified by the appellant as being items from the stolen collection. He was interviewed by the police on that day but denied knowledge of the theft and continued to deny it in the course of his trial. His case was that his fellow worker (who had since died) must have taken the box. He said he had been given the watch by the worker and told that it had been obtained in Dandenong. As to the brooch which the police discovered in the appellant's home, the appellant claimed that he had never seen it until he was shown it by the police.
The burglary to which the appellant had pleaded guilty was committed by him on 25 May 1998 when he entered his neighbour's house as a trespasser and stole some bread, sausages and coins (count 1). On 26 May 1998 he again went to the neighbour's house intending to rob it. He sought to enter it through a side window which he broke and, in the process, cut himself. When confronted by the father of the occupier, he left the scene. In the interview of 15 November 2000 with the police, the appellant admitted the burglary, which he said he had committed because he had no food or money. He also admitted that he had attempted to enter the house with intent to steal on 26 May 1998.
I now turn to the grounds of appeal. Mr Marron, who appeared for the appellant, accepted that the complaints in paragraphs (b) to (c) in the grounds were but particulars of the manifest excess ground. He submitted that the sentence was manifestly excessive having regard, inter alia, to the fact that the appellant had a "good record", namely, a good work history as a carpet layer and no relevant convictions prior to the theft charge. He also claimed that the sentence was outside the appropriate range having regard to the range of sentences included in the analysis contained in the second edition of the well known work by Fox & Freiberg, Sentencing[1].
[1]At 966ff.
Counsel then turned to argue the other complaints. First it was said that his Honour's sentence was unduly influenced by his view as to the degree of breach of trust by the appellant. It was accepted by counsel that the offence involved a breach of trust, but it was said that it was of a limited nature only. The gist of the criticism was that, because his Honour used adjectives such as "gross" and "grave" to describe the breach of trust, he placed excessive weight on this aspect of the offending, and that in turn led to an excessive emphasis on general deterrence and the imposition of condign punishment. Counsel submitted in his written outline that a breach committed by a poorly educated carpet layer such as the appellant should be considered differently from that committed by an accountant or a solicitor. He contended that certain breaches of trust by such professionals are properly classified as "gross" or "grave", but such a description of the appellant's crime would not be appropriate. Moreover, it was put that the breach of trust was, as I have said, of a limited nature because there was no active deception of the owner and because the period during which the appellant was in the house was short. Furthermore, said Mr Marron, the owners were in the house at that time.
But whatever may be said about the appropriateness of using the above adjectives to describe the appellant's breach of trust, there is nothing in the sentencing remarks to indicate that his Honour equated it with a breach of trust committed by an accountant or solicitor. As the judge said, he regarded the appellant's crime as a grave breach of trust in the sense that the trust was posited in the tradesmen by the occupier of the house for the purpose of entering the premises and carrying out particular work. In my view, in broad terms, the crime did involve a breach of trust by the appellant, as counsel accepted, and I reject counsel's submission that his Honour's sentencing remarks demonstrate that he placed undue weight on the fact that the appellant committed a breach of trust in the sense of causing the judge to place undue emphasis on general deterrence or the imposition of condign punishment.
It was then said by counsel that his Honour wrongly found that the crime was not opportunistic and that, in the circumstances, his Honour should have treated the offence as a "spur of the moment" action rather than one that involved deliberation and pre-planning.
In my view, this criticism of his Honour's characterisation of the offence is unwarranted. It is plain from the discussions between his Honour and the appellant's counsel during the plea in mitigation that the judge queried counsel's characterisation of the crime as "opportunistic in nature" because, he said, "this security box was secured apparently in a locked position and it's not as though your client saw something and spontaneously picked it up". Later, his Honour said: "All I'm saying is it's not a matter of reaching out a hand and picking it up and putting it in your pocket ... It's a matter of using some instrument ... in order to break the lock to remove the security box."
In my opinion, his Honour was entitled to characterise this aspect of the crime as he did. The judge did not say, as was suggested in the submissions, that the crime involved deliberation and pre-planning, and I also reject counsel's description of the offence as a "spur of the moment" action. But even if it was appropriate to say that the appellant decided to take the box as soon as he saw it, it would nevertheless not detract from the gravity of the offending.
It was next contended that his Honour erred in his reasoning which led him to conclude that condign punishment was appropriate in this case. After describing the crime as a "despicable" one involving a breach of trust, his Honour concluded that in the circumstances this offence deserved condign punishment. The appellant's counsel boldly submitted to us that the crime involved only a "low scale of breach of trust" and that the nature of it was "comparatively unremarkable". Moreover, it was said, at no stage during submissions was it suggested that the offence was a prevalent one. It was put that the overall circumstances were not so unusual or particularly repugnant as to justify the imposition of condign punishment.
I cannot accept any of these submissions, which, in my view, trivialise the gravity of the offending. For reasons I give later, I consider that his Honour was correct in treating this offence as a serious one which deserved appropriate punishment.
It was next said that his Honour failed to give the appellant's prospects of rehabilitation due weight. That the judge considered that the appellant had some prospects of rehabilitation is reflected in the fact that he fixed a non-parole period of two thirds of the head sentence and took account of his personal circumstances, including his admissions as to burglary, for sentencing purposes. The submission that his Honour failed to give due consideration to the rehabilitation prospects of the appellant was based, at least in part, on his Honour's disagreement with counsel's submission that the appellant's prospects of rehabilitation were good and, it was said, his Honour's failure to comment when it was submitted to him that the appellant had such chances of rehabilitation. It was suggested that, consequently, the appellant was entitled to expect that the primary submission would be accepted. In my view, however, it is apparent from the transcript of the hearing that, although his Honour engaged in the usual interchange between Bench and Bar, it would be misstating the position to say that the judge only took issue with submissions with which he tentatively disagreed and was silent as to those which he accepted. Even if he did react as counsel claimed, no unfairness flowed to the appellant with respect to the rehabilitation issue. It is clear that a sentencing judge is not obliged to put to counsel tentative views on submissions that have been put forward in the course of argument. Views expressed by a judge as to various issues before him or her are ordinarily tentative, and that this was so in this case is made plain, in my view, by the transcript which records his Honour's discussions with counsel.
It was then asserted that the learned judge failed properly to balance the need for general deterrence with prospects of rehabilitation and, because of the matters referred to earlier, he placed excessive weight on the number of aggravating factors and little or no weight on mitigating factors. In my view, there is no foundation in the sentencing remarks for these claims.
Turning specifically to the claim that the sentence was manifestly excessive, this Court has often said that the ground of manifest excess does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly excessive or it does not. Moreover, where the complaint is in terms of weight, as is the case here at least in part, the appellate court must be especially cautious not to substitute its own opinion for that of the sentencing judge. Similarly, it is plain that it is of little utility for the appellant to seek to attack a sentence imposed in one case by reference to penalties imposed by courts in different circumstances in other cases and analyses made in the context of quite different cases In sentencing the appellant the judge here had to fix a sentence which properly reflected the gravity of the offence and of the offending, taking into account, inter alia, matters personal to the appellant and other mitigating factors, as well as the applicable sentencing principles. That his Honour did this is, in my opinion, clear from his sentencing remarks.
The offence in question is regarded by Parliament as a very serious one, as is reflected in the maximum penalty fixed for the offence, namely, ten years' imprisonment. The circumstances of the offending were, in my view, also very serious. The appellant gained entry and effective freedom of movement in the house of the victims because he was trusted to do the work for which he was engaged. This situation occurs on innumerable occasions in our community and it should be made plain, in my view, that courts regard an abuse of such a privilege or trust by way of theft of valuable belongings from the home owner as deserving of just punishment. This was not a case of the appellant picking up notes or a box that were lying on the table. He had to undertake a considerable effort to obtain the security box which obviously contained items of significance and value to the home owners. He did all this in order to secure an illicit financial gain at the expense of the persons who, in good faith, allowed him into their home for the purpose of enabling him to carry out his trade. Moreover, when confronted with the situation, not only did he deny having stolen the box, but he sought to shift the blame for the crime on to his deceased work colleague. Furthermore, he continued to maintain that position throughout the trial and provided no assistance to the police in recovering the missing items. He demonstrated no remorse in respect of his crime and, although he is not to be punished for it, or for pleading not guilty or for not assisting the police as
I have said, equally he is not entitled to a sentencing discount to which he otherwise would have been entitled. Moreover, the principle of general deterrence is an important sentencing consideration in this case and specific deterrence is also not unimportant.
In my view, his Honour did not give undue weight to the aggravating factors pertaining to the crime. If those aggravating factors are balanced against the applicable mitigating factors, the sentence imposed by his Honour, although stern, is within the range of sentences that was properly available.
Thus, in my view, the sentence is not manifestly excessive and no specific sentencing error has been made out. Consequently, this Court has no jurisdiction to interfere with the sentence imposed on the appellant, and therefore I would dismiss the appeal.
PHILLIPS, C.J.:
I agree.
PHILLIPS, J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the appeal stands dismissed.
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