R v McCallum

[2007] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 86 of 2007

THE QUEEN

v

STEPHEN THOMPSON McCALLUM

---

JUDGES:	VINCENT, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2007
DATE OF JUDGMENT:	11 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 286

---

Criminal Law – Sentence – Armed robbery – Breach of a community based order due to non-compliance and commission of further offences – Youth – Drug and alcohol abuse – First time in adult prison – Manifest excess – Penalty available for breach of community based order – Sentencing Act 1991 (Vic) s 47(3A) – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

VINCENT JA:

1. Having been granted leave to do so by a judge of this Court, on 3 August 2007, the appellant seeks to overturn sentences imposed upon him in the County Court on 27 March 2007. 

1. The factual situation against which the matter has arisen is relatively complicated and must be set out in some detail.

1. The appellant pleaded guilty before Judge Barnett in the County Court at Melbourne, on 5 March 2007, to one count of armed robbery and to a breach of a community based order which the sentencing judge had previously imposed on 15 July 2005.[1]  He admitted 22 prior convictions arising from eight court appearances between December 2001 and July 2005.  They involved a number of appearances at the Children’s Court on charges of theft, going equipped to steal, attempted theft and the possession of a controlled weapon without excuse, and convictions in the Magistrates’ and County Courts for various offences of causing serious injury recklessly, possessing a drug of dependence, namely heroin, theft, knowingly dealing with the proceeds of crime, possessing a controlled weapon without excuse, robbery and theft.

   [1]That order had an operative period of two years and the requirements that the applicant perform 50 hours of unpaid community work and to attend for assessment and treatment.  The appellant failed to perform unpaid community work as directed on 16 July 2005, 30 July 2005 and failed to attend under supervision as directed on 29 July 2005, 22 September 2005, 1 January 2005 and 3 November 2005.  The appellant was warned on a number of occasions for breaching his CBO and on 12 January 2006, he telephoned the then supervising officer and informed her that he was unable to continue his CBO and asked that a breach be initiated.  The report in respect of that breach was dated 11 March 2006 and the summons was filed on 12 December 2006, some nine months later.

1. He had been earlier convicted, on 21 December 2006, in the Magistrates’ Court on two counts of theft of a motor vehicle, two counts of unlicensed driving and driving at a dangerous speed.  These offences, which were committed on 1 April 2006, 2 April 2006 and 7 July 2006, also breached the community based order.  He was, in respect of these matters, sentenced to six months’ imprisonment, the service of the whole of which was suspended for a period 24 months.

1. He then committed further offences which were, on 5 March 2007, when he appeared before Judge Barnett, awaiting hearing in the Magistrates’ Court later that week for a group of offences relating to the theft of a motor vehicle, going equipped to steal, unlicensed driving, resisting police, dishonestly undertaking the realisation of stolen goods, attempting to commit an indictable offence, possession of weapons, making a threat to kill, assault with a weapon and the possession of cannabis,[2] in addition to the breach of the order made on 21 December 2006. 

   [2]Those offences were said to have occurred on 5 October 2006, 21 October 2006, 22 October 2006, 4 October 2006 and 24 June 2006.

1. In order to ensure that all matters were properly addressed and that the sentence he was to hand down would be appropriate, his Honour adjourned the hearing before him to allow the Magistrate to pass sentence later that week.  

1. When the proceeding resumed, on 8 March 2007, counsel, then appearing for the appellant, informed the judge that the Magistrate, who imposed sentence, on 21 December 2006, had fallen ill and that another had dealt with the matter.  The six months suspended sentence had been reimposed and directed to be served in an adult gaol and, in respect of the other offences, the Magistrate imposed a further suspended sentence of seven months’ imprisonment.  His Honour was told that the Magistrate indicated, when handing down sentence, that his intention was that the appellant would serve the six months of the reimposed sentence and would then be subject to a further suspended sentence of seven months, less the time he had already served (126 days).  The certified Magistrates’ Court extracts, according to counsel, suggested a ‘double dipping of a certain kind’ as they revealed that the period of 126 days had been reckoned as having been served under the reimposed sentence of six months, but were also declared as available to him, if he breached the seven month suspended sentence. 

1. Presented with this situation, Judge Barnett invited counsel for the appellant to institute an appeal against the Magistrate’s orders.  This would enable all matters to be dealt with together and correctly.  He was clearly concerned to address the relationship between the various sentences and to ensure that the total period of incarceration was appropriate.  Accepting this suggestion, an appeal was lodged and the matter returned before his Honour on 27 March 2007.  His Honour then imposed, on the armed robbery count, a sentence of 18 months’ imprisonment.  With regard to the offences for which the community based order had been imposed on 15 July 2005, his Honour handed down a sentence of six months in respect of each offence, which would, by operation of law, be served concurrently no order for cumulation having been made.  He ordered that three months of that effective sentence be served cumulatively upon that imposed on the armed robbery count.  This created an effective head sentence of 21 months’ imprisonment upon which he fixed a non-parole period of nine months.

1. Judge Barnett re-sentenced the appellant in relation to the matters dealt with in the Magistrates’ Court on 8 March 2007, imposing an aggregate sentence of seven months for the offences dealt with on that day and reimposing the six months suspended sentence.  His Honour directed that three months of the reimposed sentence and three months of the sentence of seven months be served concurrently with the 21 months effective sentence referred to above.

1. In consequence, by operation of law, the effective head sentence to which the appellant then became subject was 25 months’ imprisonment in respect of which the appellant would be required to serve a minimum period of incarceration of 13 months before he could be released on parole.  

1. In practical terms, the effect of his Honour’s orders for partial concurrency and cumulation, was that the appellant had been sentenced to 18 months on the armed robbery count and would have to serve an additional three months for the earlier robberies and a further four months for the various Magistrates’ Court offences.

1. The appeal is based upon the grounds set out in the appellant’s Full Statement of Grounds that:

1.In respect to the sentence imposed upon the breach of the Community Based Order, the discretion of the learned sentencing judge miscarried in that:

(a)If the sentence imposed was a penalty for breaching the order the penalty was above the applicable maximum provided by s 47(3A) of the Sentencing Act; or

(b)If it was the learned sentencing judge’s intention to take action pursuant to s 47(3A)(c) of the Sentencing Act, his Honour did not clearly state the basis of the sentence; and

(c)The sentence was manifestly excessive.

2.The combination of sentences resulted in a total period of imprisonment which was outside the range properly available in all the circumstances.

The Background

The count of armed robbery

1. On Saturday 22 April 2006, the appellant’s brother had attended an internet café in Dandenong where he misplaced his Sony Ericsson mobile telephone.  The phone was found on the floor of the establishment by another patron, Yazhi Wang, who picked it up, placed it in her pocket and left the premises.  She took it to an address in Scott Street, Dandenong and subsequently returned to the café.

1. During that afternoon, the appellant attended the café and learned that the phone had been found.  He then left and returned later when he spoke to Wang who told him where she had taken it.

1. Later that evening, the appellant attended the Scott Street address where a party was taking place.  A number of young people, the majority of which were aged between 14 and 15 years, were present, including the victim, Jake Vankerkold, a 14 year old boy.  When he arrived at the house, he confronted the victim and two other youths, also aged 14 years, who were leaving the premises in order to buy pizza, and yelled, ‘I want my fucking phone back.’  The two boys retreated into the house, locking the door behind them, and leaving Vankerkold outside.  According to the victim, the appellant then began to kick at the back door in a very angry manner.  He said that the appellant had ‘just gone ballistic’ and said to him, ‘If someone doesn’t give me my phone back I’m going to stab you.’  He then drew a knife from beneath his jacket and held it ‘about three inches away’ from the young boy’s face, saying, ‘You better get my fucking phone back.’  The appellant went to the back of the house again and continued to yell and scream at the occupants before returning to the victim and again demanded his phone and wallet.  Vankerkold informed the appellant that he did not have a wallet and the appellant then took his phone.

1. The appellant left the premises and the police were contacted.  He returned to his home address, only to be informed by his brother that he had the wrong phone.  The appellant’s brother then sent a text message to his own phone stating, ‘We want to trade phones or we’re going to the police, remember we know where you live.’  In the meantime the police had been contacted.  The appellant was arrested when he attended an arranged meeting.

1. When interviewed by police, on 24 April 2006, the appellant stated, that he attended the Scott Street address and said, ‘Where’s the phone, give it to me now.’  He said that they went inside and, because it took a long time, he showed the victim a box with a picture of a knife on it, stating that, ‘there would be trouble’ if he did not get the phone back.  He said that he did not threaten to stab anyone and did not pull out a knife.  He said that he asked the victim for his wallet because he wanted to obtain a name and address.  He admitted that he was yelling and screaming, but insisted he did not commit an armed robbery, ‘it’s robbery, not armed robbery.’

The community based order offences   

1. The offences in respect of which the community based order had been imposed on 15 July 2005 by Judge Barnett comprised two counts of robbery where the appellant and a co-offender threatened two 13 year old boys and demanded that they each relinquish their phones, wallets and anything else they had in their possession.  The young boys fled the scene leaving behind their belongings which included their back packs, clothing, roller blades, skateboard and mobile telephones.

The Magistrates’ Court offences

1. We have been provided with virtually no information concerning the matters which came before the Magistrates’ Court, on either occasion and, save for reference to their general character, no submissions have been advanced concerning them.  However apart from a claim that the total period of incarceration to which the appellant was subject was excessive, no complaint has been made in relation to the appropriateness of his Honour’s orders with respect to them.

The appeal

1. Although, by reason of the appellant’s persistent offending, the task of the sentencing judge presented some difficulties, the overall approach that his Honour adopted was, I consider not only appropriate, but was clearly adopted to ensure that the appellant was treated fairly.  The only error that I have been able to detect in the construction of the sentences appears in the Return of Prisoners form, which states that the appellant has a non-parole period of 13 months.  Whilst it is true that he could not be released until the expiration of that period, strictly, he is required to serve a period of four months of the aggregate term of seven months separately imposed before he commences to serve the only non-parole period fixed (nine months for the armed robbery offence).

Grounds 1(a) and 1(b)

1. These grounds can be conveniently considered together.

1. With regard to the community based order his Honour stated –

I am reminded by the prosecutor, … that the community based order offence comprised two counts of robbery where you threatened two young 13 year olds to give you their phones and wallets and whatever they have got.  You were with the co-accused at the time.  The young boys fled the scene, leaving their possessions behind, including back packs, clothing, roller blades, skate board and, of course, the mobile telephones.

---

In respect of the community based order breaches, I propose to sentence you to six months in respect of each breach of the community based order and I order that three months of that is to be served cumulatively with the sentence in respect of the armed robbery making a total effective sentence of 21 months and I fix a minimum of nine months before you are eligible for parole.

1. The argument was advanced that, if the effective sentence of six months ‘for the community based order breaches’ imposed by his Honour was intended to operate only as a penalty for breaching the order, then it exceeded the maximum provided by s 47(3A) of the Sentencing Act 1991 (a level ten fine). If, however, it was his Honour’s intention to cancel the order and impose sentence pursuant to s 47(3A)(c), then he neither so stated nor did he indicate why this course was adopted.

1. Section 47(3A) reads –

(3A) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition may—

(a)       vary the community-based order; or

(b)       confirm the order originally made; or

(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (4), deal with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence or those offences.

1. It was not disputed that the judge was empowered to cancel the order and impose sentences for the offences in respect of which it had been made.  However, counsel submitted, if his Honour proposed to adopt the most drastic of the options available to him under the section, then it was incumbent upon him to state this explicitly and, more importantly, to provide reasons for his decision.

1. Normally, there would be force in these contentions, but, in the particular circumstances, I consider that they lack merit. It can be accepted that the sentencing judge in this case, who I should point out has vast experience not only as a judge but by virtue of his involvement over many years in the Youth Parole Board, well understood the sentencing options available to him under s 47(3A). It is clearly beyond dispute, in my view, that he determined that the appropriate disposition was to cancel the order and to impose sentences for the two offences concerned and I have no difficulty whatever in understanding how he reached this conclusion. Indeed, only a moment’s thought is needed to appreciate that the adoption of any of the other courses available would have been singularly inappropriate in this case.

1. Whilst his Honour directly dealt with the issue of the applicant’s breach of the community based order only very briefly and expressed his intentions in a rolled up fashion, his treatment of the breach of the community based order must be viewed in the context of the proceeding generally.  His Honour made clear that he was mindful, (inter alia)  of the circumstances of those offences and the fact of the engagement by the appellant in repeated offending thereafter which not only breached the community based order and a subsequently imposed suspended sentence, culminated in the applicant’s appearance before him on the count of armed robbery.  It is necessary to have regard to his Honour’s endeavours to ensure that his various dispositions and the ultimate outcome were appropriate in the circumstances, his sentencing remarks and the decisions at which he arrived.  So considered, I am far from persuaded that he may have fallen into any of the errors ascribed to him. 

1. I would add that I also reject the contention that he imposed an aggregate sentence for each of the two robberies in respect of which the order had been made.  He stated when dealing with this aspect, ‘I propose to sentence you to six months in respect of each breach.’  These sentences, in the absence of any order for cumulation would by operation of law be served concurrently as his Honour undoubtedly appreciated and he then made three months of that effective term cumulative upon the sentence of 18 months handed down for the armed robbery.

Ground 1(c) and Ground 2

1. These grounds contain the assertions, first, that the sentences imposed for the 2003 offences were excessive and, secondly, when considered in conjunction with those imposed for the other matters in combination, it is apparent that the total

period of imprisonment involved exceeded any that was available in the proper exercise of sentencing discretion.

1. Neither of these claims possesses substance, in my view.  The care with which the sentencing judge approached this matter at all stages is evident.  He was conscious of the appellant’s youth and background, which included a lengthy history of drug and alcohol abuse and the report of the psychologist, Carol Burton, about which his Honour said –

Those remarks are important in my mind because an appropriate sentence is one which should give you the opportunity of being released under supervision with proper programs being put in place to  assist you gaining some realisation of the difficulties your personality and possible brain damage has caused and, of course, helping you develop strategies to avoid offending again in the future.

1. His Honour ordered and secured an assessment of the appellant’s suitability for youth training.  When addressing that possibility, he stated –

I have received that assessment and, of course, have been found eligible to be released for a youth training order.  I have taken that assessment into account.  Regardless, however, that assessment, in my mind, after reading the depositions more closely and, of course, taking into account your prior convictions and giving weight to the breach of the community based order and despite the comments that I have made, it seems to me that a term of imprisonment is the only option open in the circumstances in respect of the armed robbery.

1. I need not set out seriatim the principles and factual considerations to which the sentencing judge had regard and sufficient, I think, to state that I have been unable to detect any error of omission or commission with respect to any of them.  Nor do the individual sentences, orders for cumulation or the total effective sentence bespeak error, as all were available in the proper exercise of sentencing discretion.

1. I would dismiss this appeal.

REDLICH JA:

1. For the reasons given by Vincent JA I would dismiss the appeal.

KELLAM JA:

1. I have had the advantage of reading in draft the reasons for judgment of Vincent JA.  I agree, for the reasons which his Honour gives, that the appeal should be disposed of as his Honour proposes.

---