R v Marinus
[2000] VSCA 205
•16 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 123 of 2000
| THE QUEEN |
| v. |
| PETER ALAN MARINUS |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 October 2000 | |
DATE OF JUDGMENT: | 16 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 205 | |
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Criminal law – Sentencing – Prevalence – Executive action – Plea of guilty – Youth and prospects of reformation – Sentencing Act 1991, s.5(2AA)(a).
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. C.B. Boyce | G.R. Bryant & Associates |
WINNEKE, P.:
I will invite Callaway, J.A. to give the first judgment in this appeal.
CALLAWAY, J.A.:
The appellant, who was born on 19th October 1982, pleaded guilty in the County Court at Ballarat to one count of aggravated burglary, one count of intentionally causing injury and one count of theft. The appellant's brother, David Marinus, born on 25th November 1979, also pleaded guilty to the same three offences. A third co-offender, Robert Morrison, born on 11th January 1985, was dealt with in the Ballarat Children's Court a fortnight later.
After hearing pleas for leniency on behalf of the appellant and his brother, the learned judge imposed the following sentences. The appellant was sentenced to 15 months' detention in a youth training centre on each of the counts of aggravated burglary and intentionally causing injury and to three months' detention in a youth training centre on the count of theft. It was directed that six months of the sentence imposed on the count of intentionally causing injury be served cumulatively upon the sentence imposed on the count of aggravated burglary, making a total effective sentence of 21 months' detention in a youth training centre. David Marinus was sentenced to nine months' imprisonment on each of the counts of aggravated burglary and intentionally causing injury and to three months' imprisonment on the count of theft. It was directed that six months of the sentence imposed on the count of intentionally causing injury be served cumulatively upon the sentence imposed on the count of aggravated burglary, making a total effective sentence of 15 months' imprisonment, in respect of which his Honour fixed a non-parole period of eight months. In the case of both offenders an order was made pursuant to s.464ZF(2) of the Crimes Act 1958. A forfeiture order was made in respect of the baseball bat that the appellant had used as a weapon.
Leave to appeal was granted on 22nd September 2000 in the expectation that the grounds of appeal would be amended. They were amended by order of the Registrar made on 11th October 2000, which substituted the following for the original grounds of appeal:
"1. The learned sentencing judge erred in considering that the common occurrence in the Ballarat area of offences similar to those committed by the appellant was relevant to the issue of specific deterrence.
2. The learned sentencing judge erred in failing to place any or sufficient weight upon the appellant's plea of guilty.
3. The learned sentencing judge erred in failing to place sufficient weight upon the rehabilitation of the appellant.
4. The learned sentencing judge erred in failing to place sufficient weight upon the youth and relative lack of prior convictions of the appellant.
5. The learned sentencing judge erred in giving insufficient weight to principles of parity in sentencing the appellant and the co-offender David Marinus.
6. The learned sentencing judge erred by having regard to the possibility or likelihood that the length of time actually spent in custody by the appellant would be affected by executive action.
7. The sentence is manifestly excessive."
The summary of evidence prepared by the Crown in this case is of a very high standard. Instead of summarising the circumstances of the offences in my own words I shall incorporate the first twelve paragraphs of the summary as the next four paragraphs of this judgment.
The victim, James Blake, was aged 17. He lived by himself in a flat in Ballarat. On 12th January 2000 at about 2.30-3.00 a.m. he was woken by knocking at the door. A male introduced himself as "Rob". Blake opened the door. Two other males appeared. One was holding a baseball bat. The three males forced their way into the flat. The baseball bat was not full-sized. It was approximately 50 centimetres long. "Rob" was Robert Morrison, then aged 15. His companion with the baseball bat was the appellant, Peter Marinus, aged 17. The third male was the appellant's brother, David Marinus, then aged 20. The appellant believed he had a grievance against the victim arising out of contact between the victim and young female friends of the appellant and Morrison, whom he had met socially over the previous couple of weeks.
Blake said that as the males came into his flat one of them said that Blake "had been trying to hit on their girlfriends". When Blake replied, "I don't know what you are talking about" the appellant hit him with the bat to the right side of his head. Blake said, "The blow wasn't that hard, I think he was trying to intimidate me." The appellant pushed the bat into the victim's face and then hit him twice to the side of the head with the bat. Blake largely blocked the blows with his arm. The bat hit his arm and head. Blake described the force of the blow as "very hard". After a brief conversation the appellant again raised the baseball bat and Blake believed he was going to be struck again. While the appellant and his brother briefly went upstairs, Robert Morrison kicked Blake twice to the side of the neck. The appellant returned and handed Blake his pocket knife with the pig-stabber extended and asked Blake "to show me how sharp it is". The appellant indicated he wanted Blake to stab himself. At this stage one of the others intervened to prevent this.
Whilst in the flat the intruders interfered with the victim's property. One took food from the refrigerator. The appellant and David Marinus apparently searched through the appellant's clothes. David Marinus took a balaclava. He also took the victim's mobile phone and requested the security PIN number. The appellant cut open the victim's moneybox using a knife and took the money. He also took the victim's stereo system, Adidas jacket and Nike sneakers. As the intruders left they warned the victim not to complain to police. The appellant punched the victim in the face and said, "You better not lag or we'll come back and break in and trash the house." The appellant also told Blake that he would return that evening and that "it would be just him, no baseball bats and that I should not have any friends here or he'll go and get his mates".
Blake's mother lived opposite and he went outside intending to visit her. He met two of the males, Robert Morrison and David Marinus. They said they believed he was going to the police and took him back to the flat. David Marinus said, "We want all the stuff that you've got for the mobile." Blake complied and as they were leaving David Marinus punched Blake in the nose, causing it to bleed. Later that morning Blake was taken to hospital. His arm was "extremely swollen and very sore". An x-ray revealed the arm was not broken. Blake was not able to use his arm for several days and had tenderness in the face where he was punched. The items taken from Blake's flat were recovered except for some compact discs, cash and the mobile phone, the total value of which was $528.
The appellant was interviewed by police later the same day and made admissions substantially in accordance with the matters put to him from the statement made by the victim, to whom he said he would like to apologise.
Ground 1 has its genesis in the following exchange on the plea:
"HIS HONOUR: I don't know whether prevalent is the word but let me say I've come across it a few times in the last 12 months in Ballarat of people doing things to sort other people out; it's got to be stopped.
MR CARMODY: Yes, I know what those words mean, Your Honour, in terms of general deterrence.
HIS HONOUR: And specific.
MR CARMODY: Yes, and to him - specific to him.
HIS HONOUR: Yes." (Emphasis added.)
Mr Carmody was counsel for the appellant below.
No complaint was made of his Honour's view that offences of this kind were prevalent or of prevalence being factored into the sentence and no suggestion was made that the appellant was denied procedural fairness. It was conceded that prevalence could have a legitimate bearing on general deterrence, but, Mr Boyce submitted, his Honour had erroneously taken it into account in connection with specific deterrence as well. There are, or may be, a number of answers to this contention. One is that the observations impugned in the transcript of the plea have no counterpart in the sentencing remarks, where reference was made to prevalence but it was not linked to specific deterrence. Another is that counsel for the appellant below expressly accepted the suggestion put to him by the judge. But I do not rely on either of those considerations or decide that they would have been sufficient in themselves, because I think the submission misapprehends what his Honour was saying. The key to understanding it is to be found in the words I have italicised: this kind of conduct was common and it had to be stopped. One way it would be stopped was by deterring others. Another way it would be stopped was by deterring the appellant from committing another offence of that kind.
Ground 6, which counsel argued next, also had its genesis in an exchange in the course of the plea, this time between the learned judge and counsel for David Marinus. The pre-sentence report was to the effect that David Marinus was unsuitable for a youth training centre disposition, but counsel nevertheless pressed that disposition on the court. It was in that context that his Honour said to counsel that that could cause practical injustice. The length of a sentence of detention would be commensurate with its nature, but, for the very reasons on account of which David Marinus had been assessed as unsuitable, he might find himself transferred into the adult prison system for the same period of confinement without a non-parole period having been fixed. Mr Boyce submitted that we should infer from those observations that the judge considered it appropriate to lengthen a period of detention by comparison with a period of imprisonment because of the prospect of early release and that he had taken that course in the case of the appellant in contravention of s.5(2AA)(a) of the Sentencing Act 1991, which, as Ormiston, J.A. pointed out in R. v. Ngo[1], reflects a common law principle. See also R. v. Cooper[2] and the cases there cited.
[1][1999] 3 V.R. 265 at 283.
[2](1998) 103 A.Crim.R. 51 at 58-59.
The short answer to this submission is that I would not draw that inference from what his Honour said or from the sentences subsequently imposed. The gravamen of what the judge said to counsel for David Marinus was that his client risked transfer to the adult prison system for a lengthy period of confinement without a non-parole period having been fixed. It is true that his Honour recognised that a period of youth training might be longer than a period of imprisonment, a point which counsel for David Marinus expressly accepted at another stage of the plea, but that does not mean that it would be longer because of the prospect of early release.
It is convenient to deal next, out of the order of counsel's argument, with ground 5. It was, quite rightly, not pressed except as a footnote to ground 6. The footnote was to the effect that David Marinus would be eligible for parole after serving eight months of his sentence and the appellant would in practice be likely to be released after either seven months or nine-and-a-half months, depending on the source of information on which one relied. There is more than one answer to this contention too. The essential answer is that, when all the differences between the appellant and his brother are taken into account, there is simply no appellable disparity in their sentences. Particular caution is to be observed in upholding parity arguments directed to different kinds of disposition. I very much doubt that it would be right for this Court to have regard to the appellant's likely release date even if some way could be found of reconciling that with the language of s.5(2AA)(a). The courts do not predict what the executive will do. The proper comparison, if any, would be between eligibility for parole, which is of course in the appellant's favour.
It will be recalled that ground 2 complained that his Honour erred in failing to place any or sufficient weight upon the appellant's plea of guilty. That plea was not mentioned except in the opening words of the sentencing remarks, but I have no doubt that it was given adequate weight by a very experienced judge. There is nothing, to my mind, on the face of the sentence to suggest the contrary. If the appellant is in any doubt whether he received a discount for pleading guilty to these very serious offences, he should not be. A measure of leniency was plainly extended on that ground.
Counsel argued grounds 3, 4 and 7 together, reminding us, among other things, of the appellant's limited criminal history. Unlike his brother, who had a multitude of previous convictions, he had only one previous appearance in the Children's Court, when he was charged with recklessly causing injury and assault by kicking and a fine was imposed without conviction. He had, since the commission of the present offences, been placed on a community-based order with which there had been imperfect compliance, although it is fair to say that the writer of a report that was before the County Court did say that the appellant was a young man who appeared to be attempting to make the most of his opportunities while subject to that order. Counsel reminded us of other factors bearing on rehabilitation. It was not, I think, contended that they had been overlooked but rather that they had been given insufficient weight, particularly as, when summarising the purposes of punishment relevant to the case, his Honour had said only that rehabilitation "cannot be ignored". I would accept that that was an understatement if it applied to the appellant alone, but the relevant parts of the sentencing remarks show that it was addressed to both brothers. In any event, understatement does not necessarily betoken error. At the end of the day the question is whether we can see from his Honour's remarks, the evidence or the face of the sentence that insufficient weight was given to youth, antecedents and rehabilitation. In my view it is not open to us to take that view or to conclude that the sentence is manifestly excessive.
For these reasons, notwithstanding Mr Boyce's very attractive argument, I would dismiss the appeal.
WINNEKE, P.:
I agree.
BUCHANAN, J.A.:
Having heard the appeal argued fully by able counsel, I have come to the conclusion that the sentence was not affected by specific error, nor was it manifestly excessive. I agree with the reasons expressed by Callaway, J.A.
The sentencing judge's remark in the course of the plea as to specific deterrence was, I think, no more than a reference to the likely effect which punishment would have on the appellant. As to the exchange between the sentencing judge and counsel for the co-offender with respect to distinctions between youth training centre detention and adult prison, I do not consider his Honour's comments are to be transferred to the appellant and construed as disclosing an intention to increase the sentence beyond that which was appropriate because it was to be served in a youth training centre.
I too would dismiss the appeal.
WINNEKE, P.:
The formal order of the Court will be that the appeal is dismissed.
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