R v Maschoe
[2000] VSCA 193
•11 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 7 of 2000
| THE QUEEN |
| v. |
| RODNEY DOUGLAS MASCHOE |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 October 2000 | |
DATE OF JUDGMENT: | 11 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 193 | |
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Criminal law – Sentence – Appellant pleading guilty to one count of armed robbery, four counts of theft, three counts of handling and one charge of breaching a suspended sentence order – Errors in judge’s sentencing remarks – Total effective sentence of six years and seven days with minimum term of five years held to be manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. J.P. Dickinson | Wallington Brand Gattus |
WINNEKE, P.:
I will invite Buchanan, J.A. to deliver the first judgment in this appeal.
BUCHANAN, J.A.:
On 17 January 2000 the appellant was arraigned and pleaded guilty to a presentment containing one count of armed robbery, four counts of theft and three counts of handling stolen goods. He also pleaded guilty to a charge of breach of a suspended sentence order. After a plea in mitigation was made, the appellant was sentenced to be imprisoned for one month on one count of handling stolen goods, to one month on one count of theft, to two months' imprisonment on another count of theft, to seven days' imprisonment on yet another count of theft and to six months' imprisonment on the remaining count of theft, to one month's imprisonment on the other count of handling stolen goods, to 48 months' imprisonment for armed robbery and the suspended sentence of 12 months was restored. All of the sentences were to be served cumulatively, producing a total effective sentence of six years' and seven days' imprisonment. The sentencing judge directed that the appellant serve a minimum term of five years before he was to be eligible for parole.
The appellant was granted leave to appeal by a single judge of this Court. The sole original ground of appeal was that the sentence was manifestly excessive. As a result of a recent order the grounds of appeal were amended to read:
"1.The learned sentencing judge erred in ordering that all the sentences imposed be served cumulatively.
2.The learned sentencing judge erred in fixing a minimum term before which the applicant was ineligible for parole, which was too proximate to the head sentence.
3.The learned sentencing judge failed to give sufficient weight to the matters put in mitigation.
4. The sentence is manifestly excessive."
The appellant has led a life of deprivation. From an early stage the only support and structure in his life has been that provided by the social welfare services of the government and the prison system. The appellant's parents separated when he was young, and his father died when the appellant was aged 11 years. The appellant lived with his mother, but she was an alcoholic and could not look after him. The Department of Social Welfare removed the appellant from his mother and placed him in a boys' home at about the age of 10 or 11 years. He had little education in the normal school system, receiving most of his education in institutions. To his credit he completed the equivalent of year 10 in institutions. He is fully literate. He was first sentenced to be detained in a youth training centre in 1981. Since then he has accumulated 197 prior convictions from 27 court appearances, and has spent most of the time since his first conviction in prison. The majority of the early convictions related to attempts to obtain money either for survival or for drugs. The seriousness of the appellant's offending escalated during the 1980s to include armed robberies. The appellant was never a successful criminal. Since December 1986, apart from very short periods of liberty measured in days, the appellant has been incarcerated in prisons.
The appellant was assessed by Mr Joblin, a forensic psychologist, who has expressed the opinion that when at liberty the appellant simply does not know how to cope with day-to-day activities and stress, and his offending represents a wish to return to the security of an institution. Mr Joblin said:
"... [I]nstitutions, the criminal justice system, anti-social behaviour and drugs have become an integral part of his overall lifestyle. He is unable to leave the values, attitudes and mores of institutions behind when he leaves gaol. Thus he transfers those values to his life at liberty. ... It is extremely difficult to know how to provide an optimistic prognosis. ... What he needs ideally is a structured therapeutic environment following any sentence of this court. ..."
The offences were committed in the following circumstances. On 4 April 1999 the appellant and an accomplice stole a car containing numerous belongings. The car and only some of the property were later recovered. On the following day the appellant drove in the car to a mixed business in Dandenong North and confronted the owner of the business with a kitchen knife. The appellant demanded money. He said that he was not going to hurt the owner, but the latter was nevertheless very scared. The appellant took the contents of the till, some $280, and a packet of cigarettes. He said to the trader as he left that he was sorry but he needed the money. The appellant was arrested that night. During a search of his premises the police found a CD player which the appellant admitted handling knowing that it had been stolen, and during his subsequent record of interview he admitted the offences the subject matter of the other counts.
The suspended sentence was imposed upon the appellant on 6 June 1997 for some 42 offences of burglary, theft and handling stolen property. The appellant was sentenced to be imprisoned for a term of 12 months, and that term was wholly suspended for a period of two years. Apart from the current offences, during the period of suspension the appellant was convicted in the Dandenong Magistrates' Court on 5 May 1998 and a sentence of six months' imprisonment was imposed upon him and in the same court on 9 February 1999 he was convicted of a number of offences and received a 12-month community-based order.
Two specific errors emerge from the sentencing remarks. The first is that the sentencing judge assumed that the breach of the suspended sentence was to be approached on the basis that the law was that which applied before the 1997 amendments to the Sentencing Act effected by Act No.48 of 1997. Sec.31 of the Sentencing Act as it stood before Act No.48 commenced on 20 November 1997 provided that if a court ordered an offender to serve a term of imprisonment that had been held in suspense, the term must, unless the court otherwise ordered, be served concurrently with any other term of imprisonment previously imposed on the offender. In fact s.118(3) of the Sentencing Act provides that the amendment made by the 1997 Act to s.31 was to apply to a failure to comply with a sentencing order that was alleged to have occurred after the commencement of that provision, irrespective of when the sentencing order was made. The amending Act replaced the word "concurrently" with the word "cumulatively". The error had no practical effect. In my view the cumulation was appropriate having regard to the large number of offences in respect of which the suspended term had been imposed and the manifold breaches of the order.
The other error concerns the non-parole period. The sentencing judge said:
"Unfortunately, your past breaches of parole and other breaches of non-custodial dispositions probably mean that your chances of further parole are limited and I will take this into account in sentencing you."
Such an approach was in breach of the provisions of s.5(2AA)(a) of the Sentencing Act, which provides that a court must not have regard to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind. It appears the sentencing judge accepted the submission of counsel made during the plea that he should take into account the appellant's small chance of release on parole. Counsel for the respondent on the hearing of this appeal acknowledged the error and conceded that the appellant must be re-sentenced. As a result of the latter error at least the sentence imposed below should be set aside and the appellant re-sentenced by this Court.
I do not take an altogether bleak view of the prospect of the appellant's rehabilitation. Despite the despair and gloom of his life so far there are some hopeful signs. The appellant has achieved an education in spite of his deprived upbringing. Mr Joblin expressed the opinion that he has a good intellect and said: "He has potential." The sentencing judge observed that despite the appellant's addiction to drugs, which played a large part in his offending, he was able to cope without them while in prison, and added:
"At present you are undergoing counselling with Miss Peck at Port Phillip Prison and it is desirable that, if possible, this continues. I am also told that you have reached the stage where you have some insight into your future and are now prepared to try and turn your life around."
In re-sentencing the appellant I would adopt the sentences imposed by the sentencing judge. I would propose, however, that the sentences in respect of the offences revealed in the record of interview, that is, counts 1, 2, 3, 4 and 7, be made concurrent with the sentences passed in respect of count 8, making an effective term of five years and seven months. I would propose that the appellant serve a minimum term of four years before he is to be eligible for parole.
WINNEKE, P.:
I agree.
CALLAWAY, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the appeal is allowed. The sentences imposed below are quashed. In substitution we confirm the sentences imposed on each count by the learned sentencing judge. We order, however, that the sentences imposed on counts 5 and 6 and on the breach of the suspended sentence are to be cumulated upon each other and upon the sentence imposed on count 8 (the armed robbery). The total effective sentence will therefore be one of five years and seven months. We order that the appellant serve four years of that term before becoming eligible for parole.
Pursuant to s.18 of the Sentencing Act we declare that a period of 555 days has already been served pursuant to the sentence and we order that the terms of that declaration be noted in the records of the Court.
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