R v McKittrick
[2000] VSCA 131
•17 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 175 of 1999
| THE QUEEN |
| v |
| NEIL ARTHUR McKITTRICK |
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JUDGES: | PHILLIPS, CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 July 2000 | |
DATE OF JUDGMENT: | 17 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 131 | |
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Criminal law - Sentencing - Armed robbery and recklessly causing serious injury - Inadequacy of judge's sentencing remarks - Insufficient to determine whether those remarks bespoke error - Sentences quashed and matter remitted for
re-sentencing: Crimes Act 1958 s.568(5).
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. A.D. Trood | Victoria Legal Aid |
PHILLIPS, J.A.:
On 30 November last the appellant was granted leave under s.582 of the Crimes Act to appeal against sentence.
On 6 July 1999 the appellant had pleaded guilty in the County Court to one count of armed robbery, contrary to s.75A of the Crimes Act 1958, and one count of recklessly causing serious injury, contrary to s.17. The maximum penalties for these two offences, we were told, were 25 years' imprisonment and 15 years' imprisonment respectively. The appellant, who was represented by counsel, admitted 110 prior convictions from 29 court appearances in a period from November 1973 to March 1999. A plea in mitigation was made during which no oral evidence was called but a report tendered from a social worker. The Crown put before the sentencing judge a victim impact statement and also a report from a medical practitioner on the injuries suffered by the victim at the hands of the appellant. On this occasion, that is, on 6 July, counsel for the appellant made a strenuous plea to his Honour for a pre-sentence report from a psychologist and the matter was adjourned accordingly to 3 August. A report was obtained from Mr Joblin, dated 5 August 1999 and that, it would appear, went into evidence on or before 9 August when the hearing of the matter was resumed.
On 9 August 1999, the appellant was sentenced to be imprisoned for seven years on count 1 and for four years on count 2. The sentences were to be served concurrently and his Honour fixed a non-parole period of five years, declaring (under s.18(4) of the Sentencing Act 1991) that 45 days should be reckoned as the time already served. Immediately after that declaration was made, prosecuting counsel drew the attention of the judge to an error, telling his Honour that the correct calculation was 11 days, not 45. His Honour then corrected his declaration, but I simply observe in passing that that correction has not found its way on to the quadruplicate; nor indeed is it reflected in the endorsement made by the Associate on the presentment. The matter deserved correction and, if I may say so, both the endorsement on the presentment and the quadruplicate ought to have been corrected before this.
The appellant now appeals, contending that the sentences were manifestly excessive and, by amendment granted by this Court today, that the sentencing judge failed to take into account, or failed to give sufficient weight to, the appellant's plea of guilty and the time at which it was made, the appellant's remorse and his background and personal circumstances.
The two offences admitted by the appellant arose out of the one set of events on 27 March 1999. The victim was the owner of a Tattslotto agency in the Northland shopping centre who was working throughout the day in question, a Saturday. As custom was busy, he made a number of "bank runs" when he left the agency on foot in order to deposit the takings in a night safe nearby. For the final run he made that day, which was at approximately 4.30 p.m., he put $7,100 in the night safe wallet. As he walked towards the bank he felt a small tug on his shoulder or arm and, upon turning, he made out the silhouette of a person whose face he thought was obscured by a mask or some such item. He then felt a hard blow to his head followed by numbness. He saw blood spurting and called for help. He felt weak and eased himself down on to the concrete. He then realised that he was no longer holding the deposit wallet. He lay on the nearby grass, holding his forehead in pain, and distressingly he was found in that position by his 15-year-old daughter. He was subsequently taken to hospital by ambulance, vomiting repeatedly on the way. He was examined at the hospital, where he was found to have suffered "a severe concussive injury almost certainly complicated by a whiplash effect to the neck". There was also damage, the medical report said, to the left supra orbital nerve, likely to lead to a permanent loss of sensation.
Meanwhile, the appellant had been arrested. It appears that he had struck the victim in the forehead with a red metal bar and, when the victim fell to the ground, he had seized the night safe wallet. But the victim's cries attracted others and upon their approach the appellant had fled from the scene leaving his victim lying on the ground, partially unconscious. Two of the witnesses gave chase and wrestled the appellant to the ground, where he was held for the arrival of the security officers. He was caught in possession of both the metal bar and the night safe wallet. When interviewed by police he, in effect, made "no comment". He was upset, sometimes in tears, and stated that he could not recall details of his movements that day. Given, however, the circumstances in which he was apprehended, his pleas of guilty are scarcely surprising.
The appellant's criminal history is a significant one. The appellant who was born on 30 August 1956 was 42 years old at the time of these offences and the prior convictions admitted, which as I have mentioned numbered 110 from 29 court appearances, spanned some 26 years. According to his counsel on the plea on 6 July, the appellant "has spent about 18-and-a-half years out of 26 years in prison" and "he has no occupation because he has spent most of his life in prison". Counsel described her client as "an institutionalised offender", saying: "In prison he works, he does his courses, he is an articulate individual but in the community he is not surviving." In a de facto relationship since 1978, the appellant had three children, a 12-year-old, a 13-year-old and a 20-year-old, and when he was not in prison he was at home. "He doesn't work, he is at home", counsel said, the only place where "he feels safe". It was in an effort to understand the motivation behind this particular offending that counsel sought a pre-sentence report from a psychologist, and hence, in the end, Mr Joblin's report.
One specific matter should be mentioned, arising out of the appellant's criminal history. The last conviction admitted by the appellant on 6 July 1999 was recorded at the Magistrates' Court at Moonee Ponds on 15 March 1999 when the appellant was convicted of burglary and theft. For those offences he was sentenced to six months' imprisonment. He was, however, granted bail pending appeal. It was on 27 March, only twelve days after the conviction, that these offences were committed and the appellant was arrested for them. On 6 April he abandoned his appeal against the conviction on 15 March and he was still in custody, presumably serving the sentence imposed at the Magistrates' Court, when he was sentenced on 9 August. As already mentioned, the judge declared, after correction, that 11 days should be reckoned as having been served under the sentences then imposed, and those eleven days were presumably the period on and from 27 March, the date of arrest, to 6 April, the day on which the appeal was abandoned.
One of the curious features of this case is the way in which the plea appears to have been conducted - or perhaps more accurately never completed. On 6 July 1999 the presentment was filed, the appellant was arraigned, pleaded guilty and admitted previous convictions, and prosecuting counsel opened the facts. Defence counsel proceeded to the plea in mitigation, stressing the need for a pre-sentence report. As already indicated, the judge acceded to that request and adjourned the hearing until 3 August. Yet nothing more seems to have occurred after that until 9 August, when the judge passed sentence. I have already indicated my assumption that Mr Joblin's report of 5 August went into evidence: so much seems apparent from the judge's reference to it when passing sentence. But, after the transcript of the plea in mitigation on 6 July, there is no further transcript. Nothing seems to indicate that the plea was resumed. Nothing, it seems, according to the papers we have, was said to the judge as a result of Mr Joblin's report, and counsel for the appellant does not appear to have addressed at any stage about the facts which it might have been appropriate for his Honour to consider specifically when passing sentence. As I say, after 6 July, on the papers we have, it would seem that nothing further was said on the appellant's behalf before sentence was passed - although it must be said on the other side that, although counsel was apparently present when sentence was passed, no complaint in that behalf seems to have been made.
Surprising though all this may be, it seems to accord with the sentencing remarks, which themselves are extraordinarily brief. They occupy less than two pages of transcript and the first page simply recounts the circumstances which led to the obtaining of the psychologist's report from Mr Joblin. In order to understand the problems that now face this Court, I simply set out what follows the reference to Mr Joblin's report:
"I have read the report and I have sympathy with Joblin [sic], as I have with counsel. I have often thought in my years as a judicial officer, and [that is] over 20 years now, what the Dickens can you say in circumstances like this, a very serious offence where violence is in fact perpetrated upon another and money stolen from that other at the time, so a very unpleasant robbery. You don't need me to reflect on it.
You [the appellant] have got a long and unpleasant history, including robbery, in your antecedents. I do not get any joy out of sentencing persons with history such as yours, but yours is a bad one; it is a very serious offence. The victims of the crime have suffered very severely as a result of what has happened and continue to suffer, if they have accurately and truthfully spelt out in their victim impact statements the results of this crime, so at the end [of] the day what I propose to do is this.
In relation to the armed robbery you are convicted and sentenced to seven years' imprisonment. In relation to the recklessly cause serious injury, you are convicted and sentenced to four years' imprisonment. Those sentences are to be served concurrently with one another.
Taking into account all of the circumstances of your sad background, I believe the appropriate earliest parole period should be after you have served a period of five years. I also make an order that you be given credit for the number of days you have served in custody, 45 days already served in custody to date."
This last, the reference to 45 days, is the reference which, as I have already explained, was soon corrected to 11 days, but what I have just set out is otherwise the sum total of the judge's sentencing remarks.
One cannot cavil at his Honour's characterising the offending in the course of these very brief remarks as "a very unpleasant robbery" and the appellant's antecedents as "a long and unpleasant history, including robbery". But, beyond that, nothing is said as to the circumstances that weighed with the judge in arriving at the sentences imposed and in particular no mention was made of the fact (if such it be) that the offences were committed while the appellant was on bail pending appeal against another sentence; or of the appellant's pleas of guilty, the stage at which those pleas were made, the appellant's remorse (if indeed the judge found that such was evident) or his background and personal circumstances, beyond, that is, the judge's saying that he had taken into account "all of the circumstances of your sad background" when fixing the non-parole period. It is not surprising then that the appellant, through his counsel (who was not counsel below), complains that the judge either did not take into account, or did not give sufficient weight to, the pleas of guilty, the appellant's remorse and his background and personal circumstances.
For my part I find myself in an unusual situation. It seems to me that the sentencing remarks are quite simply too brief to allow this Court to decide whether counsel is correct or not in his contentions on behalf of the appellant. As is apparent, the remarks that were made by the judge contain no findings of fact as such, and in that respect I simply instance the question of remorse. However obvious the circumstances of the offending, it is always helpful if the judge makes findings as to the facts, evident or not. It seems to me that there is no basis in the sentencing remarks made here for our determining the complaints of the appellant, one way or the other. This is not a case in which any deficiencies in the sentencing remarks can be supplemented by reference to exchanges between the Bench and counsel during the plea in mitigation; for, on the papers that we have, no reference was made by counsel or by the judge in the course of the plea on 6 July to the pleas of guilty, to the time at which they were made or, save somewhat elliptically, to the question of remorse. It is tempting to conclude that the plea in mitigation was never in fact concluded, but, as will be apparent, we have too little in these papers to be clear about just what did happen after 6 July and before sentence was passed.
In all the circumstances I think that we have little option in this case but to quash the sentences imposed and to remit the matter in order to learn what considerations moved the sentencing judge. We have the power to quash the sentence and to remit the matter under s.568(5) of the Crimes Act (as to which see R. v. Roberts[1]) and in the very unusual circumstances of this case, I think that that is the power which we should exercise. Under s.568(6) I would direct that, subject to any direction otherwise by the Chief Judge of the County Court, the matter should be heard and determined afresh by the same judge. It is not that the sentences imposed were necessarily erroneous: I say nothing of that. It is just that from the very brief sentencing remarks that were made, one cannot tell whether the sentencing disposition bespeaks error or not.
[1][2000] VSCA 46 at [18].
It is unnecessary, I hope, to stress the purposes of a judge's sentencing remarks. Fortunately, I need only refer now to what was said by Tadgell, J.A. in Director of Public Prosecutions v. Suckling[2] at [5] and [6] in a judgment given on 26 November 1999 (and thus after the sentencing in this case on 9 August). In those paragraphs Tadgell, J.A. set out very helpfully, if I may say so with respect, the purposes of a judge's sentencing remarks and stressed the essential importance of such remarks to the administration of justice in the widest sense. I do not repeat what his Honour said; I simply incorporate it by reference. Suffice to say that, when measured against any reasonable touchstone of what is sufficient for the purposes mentioned by Tadgell, J.A., the judge's remarks when sentencing in this instance fall short.
[2][1999] VSCA 190.
I would quash the sentences imposed and remit the matter as I have suggested. Because sentence was passed last August, I would add a recommendation that the matter be treated with expedition. It may very well be that a gaol sentence was fully justified for the very serious offences that were committed on this occasion, but the appellant has now been in custody for more than a year and he should not be left for any longer now than is necessary in ignorance about the time he must serve in prison.
CHARLES, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
PHILLIPS, J.A.:
The following orders are made:
1. Appeal allowed.
2.The sentences imposed in the County Court on 9 August 1999 are quashed and the matter is remitted under s.568 of the Crimes Act 1958 to the County Court for hearing and determination afresh. Subject to any direction otherwise by the Chief Judge of the County Court, the matter should be heard and determined by the same judge as before and accorded all reasonable expedition.
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