R v O'Blein

[2009] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 598 of 2009

THE QUEEN

v

DAVID O'BLEIN

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JUDGES:	VINCENT, NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2009
DATE OF ORDERS:	10 June 2009
DATE OF REASONS:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 159
JUDGMENT APPEALED FROM:	R v O’Blein (Unreported, County Court of Victoria, Judge Pilgrim, 8 April 2009)

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Criminal law – Theft – Armed robbery – Possession of an unregistered firearm – Failure to specify non parole period in accordance with s 6AAA Sentencing Act 1991 (Vic) – Appellant aged 20 years – Subject of serious assault in adult prison – Application of sentencing principles for youthful offenders – R v Mills (1998) 4 VR 235 – Suitability for Youth Justice Centre Order – Failure to regard pre-sentence report constituting sentencing error in all the circumstances – Appeal allowed – Appellant re-sentenced to period of detention in Youth Justice Centre.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P F Tehan QC	Victoria Legal Aid

VINCENT JA

1. I agree with the reasons of Coghlan AJA.

NEAVE JA:

1. I have read the reasons of Coghlan AJA.  I agree that the application for leave to appeal against sentence should be granted, and the appeal allowed, for the reasons given by his Honour.

COGHLAN AJA:

1. On Wednesday 10 June 2009 we heard this application.  The application for leave to appeal against sentence was granted.  The appeal was treated as having been instituted and heard instanter and was allowed.  The sentences imposed in the court below were set aside.  For reasons set out in the recommendation of Ms Makepeace, the Court was of the view that the appellant should be sentenced to a period of detention in a youth justice centre rather than adult prison.  The following sentence was imposed:

   Count 2         To be detained for a period of 30 months; 

   Count 1 To be detained for a period of one month to be served cumulatively on count 2; 

   Count 3 To be detained for a period of seven days which is to be served concurrently. 

   Pursuant to s 6AAA of the Sentencing Act, the Court indicated that, had not the appellant pleaded guilty, an effective sentence of three years and six months' imprisonment with a non-parole period of 21 months would have been ordered.  It was declared that the period of 277 days, which did not include the day the application was heard, had been served under the sentences imposed and it was directed that the declaration and its details be entered in the records of the Court.  We said we would publish our reasons which we now do.

Background

1. On 3 March 2009 the appellant pleaded guilty in the County Court of Mildura to one count of theft, one count of armed robbery and one count of possession of an unregistered firearm.

1. He admitted 18 findings of guilt and one conviction in the Children’s Court from eight  court appearances between 30 July 2002 and 9 August 2005.

1. He also admitted nine convictions in the Magistrates’ Court from one court appearance on 10 December 2007.

1. On 8 April 2009 the appellant was sentenced to be imprisoned for one month on the first charge, 30 months on the second charge and seven days on the third charge.  The sentence on Count One was ordered to be served cumulatively and the sentence on count 3 concurrently, with the sentence on count 2.

1. The learned judge fixed a period of 15 months before the appellant would be eligible for parole.  His Honour ordered that the appellant be given credit for 214 days by way of pre-sentence detention.  Those days have been served in adult prisons and were the first period of actual incarceration where the appellant had served.

1. The appellant is 20 years of age having been born on 12 September 1989.

1. He has made application to appeal against the sentence by notice dated 17 April 2009.  In accordance with the rules notice dated 27 May 2009 was given of the full statement of grounds upon which the appellant relies:

1. The grounds are:

1.        The sentencing court was obliged to state the non-parole period that would have been imposed but for the plea of guilty. This is no doubt for the benefit of the prisoner and the community.

2.The learned sentencing judge erred in applying the law of sentencing youthful offenders as set out in R v Mills (1998) 4 VR 235 by distinguishing the present case from the principle set out in Mills because the appellant was not a person who, by dint of his period on remand, had not ‘previously been incarcerated’.

3.The total effective, individual sentences and non-parole period are manifestly excessive.

Ground 1: Failure to State putative non parole period

1. Section 6AAA of the Sentencing Act 1991 (Vic) requires a judge to state what sentence they would have imposed on an offender were it not for the fact that he or she had pleaded guilty.

1. Pursuant to s 6AAA(2) the court must state

(a)       the sentence;  and

(b)      the non parole period, if any that it would have imposed but for the plea of guilty.

1. In this case his Honour said[1]

Pursuant to s 6AAA of Sentencing Act, had it not been for the plea of guilty I would have imposed a head sentence of four years with an appropriate parole period

[1][40] Sentence.

1. Nothing turns on the difference between the expressions ‘parole period’ and ‘non parole period’.  That part of the sentence is not in accordance with the section.  Counsel specifically drew the matter to his Honour’s attention and the following exchange took place:

[COUNSEL]:  Pardon me one moment, Your Honour?

[HIS HONOUR[:  Yes, just a minute.  Just before you go take a seat.

[COUNSEL]: Your Honour, I’m a little bit concerned about that last matter that Your Honour mentioned under s.6AAA of the Sentencing Act, you set a head sentence of four years and then said ‘and with an appropriate non-parole period’.  I think Your Honour is required to actually specify what the non-parole period is.

[HIS HONOUR]:  Well, I have not done that in the past. You’re looking into---

[COUNSEL]:  I just make the point Your Honour.

[HIS HONOUR]:  Thank you.  It’s on the record.  I don’t propose to say any more.

1. The question is whether or not that error is sufficient to vitiate the sentence so as to lead to re-sentencing. Section 6AAA operates to provide for transparency in sentencing. In particular it is so that both the prisoner and the public know what ‘discount’ has been made for the plea of guilty alone. Here his Honour made clear that he had allowed some 17 months on the total effective sentence. Although he was required to state the actual non-parole period he said ‘with an appropriate parole period’. Although specific statutory provisions should not be taken lightly we regard his Honour, in the circumstances, to have provided enough information to prevent this consideration alone from being sufficient to vitiate sentence.

1. It has long been accepted that not every sentencing error will automatically lead to re-sentencing.[2]

   [2]See R v RJE [1999] VSCA, [10]–[13], R v Sivov [2000] VSCA 7, [14], R v Dennis (2000) 114 A Crim R 33, 37.

1. However, given the view we have formed on Ground 2 the decision on this ground is of little consequence.

Ground 2

2.The learned sentencing judge erred in applying the law of sentencing youthful offenders as set out in R v Mills (1998) 4 VR 235 by distinguishing the present case from the principle set out in Mills because the appellant was not a person who, by dint of his period on remand, had not ‘previously been incarcerated’.

1. It was submitted on behalf of the appellant that although it followed that a sentence involving immediate custody was inevitable because of his history and the seriousness of the offending, any sentence should be served in a Youth Justice Centre (formerly Youth Training Centre).

1. In discussion on the subject the following exchange occurred:

[COUNSEL]:  And, as I said to your Honour yesterday, the thrust of this plea is that this man’s situation cries out for a juvenile justice detention order, rather than ongoing imprisonment.

[HIS HONOUR]:  I’ve sometimes heard it said that the juvenile justice people have difficulty managing individuals who have been in the adult system for such a long period.  They're seen to be king of the kids when they arrive because of that experience.  That sometimes makes life very difficult for them yet again.

[COUNSEL]:  That's true, Your Honour.

[HIS HONOUR]:  Is that accurate?  You agree with that?

[COUNSEL]:  I do agree with that but - and I should indicate, Your Honour, I worked at Malmsbury Youth Training Centre for about 10 years, so I can validate that particular comment, and particularly with people who have some physical bulk to them and consider themselves, amongst their own age group, to be able to look after themselves.  This man is in a different situation.  He's - and as the professionals postulated, he looks like a victim.  He is the classic mark for a bully because he looks despondent;  he looks depressed, and he doesn't control that.  He's not a - it's not a matter of putting it on or just being a temporary pose;  that's just the personality he is, and with all his difficulties through childhood and youth, and the constant changes, he is very suspicious and reluctant and stands back a bit and is not given to - he's not the sort of person, not withstanding these charges and the previous one, he's not a fighter as such, if I can put it that way.

1. The background of the appellant was that he had not been incarcerated prior to his arrest for these offences.  He had been in custody for something over 200 days.  He had been released on bail but was only at large for about 15 days.

1. Whilst in prison he had been the subject of a serious assault and was taken from Port Phillip to hospital by ambulance.  That assault lead to his transfer back to the Metropolitan Remand Centre.  He complained of a number of other assaults and of being the victim of bullying.  A number of reports were tendered on behalf of the appellant.  They were

·     Psychological Report prepared by David Ball for prospective a bail application.

·     Psychiatric Report prepared by Dr Adam Deacon for the plea.

·     Department of Human Services Pre-Sentence Report to assess the appellant’s suitability for admission to a Youth Justice Centre.

1. It is fair to say that the two mental health reports are somewhat unsatisfactory because the appellant is not a good historian about mental health issues in circumstances where that is understandable.

1. Although the question cannot be approached with precision it does seem that the appellant does suffer from mental illness which is aggravated by his consumption of methamphetamines and cannabis.  He does seem to be affected by the death of his infant son soon after birth.

1. The Pre-Sentence Report is very helpful because the writer not only had had previous dealings with the appellant but had access to the appellant’s file and previous case workers.

1. It is true to say that the appellant, who had been made a State Ward at about the age of five, had lived a difficult life.  He had many foster-home placements (30 by the time he was ten) and his most stable environment had been about 15-16 months in the McKillop Residential Programme in Melbourne and about 15-16 months in a 1:1 placement in Mildura.  He ceased being a State Ward on his 18^th birthday.  The appellant has no convictions between August 2005 and September 2007.

1. His schooling has been difficult and when he returned to Mildura he was excluded from St Joseph’s College because of his aggressive and anti-social behaviour.  He is in the low average range in terms of cognitive ability.

1. The only work he had completed has been seasonal work around Mildura.

1. The most important feature of the Pre-Sentence Report was that he was found to be suitable for a Youth Justice Centre Order.  The following recommendations were made:

David is assessed as suitable for a Youth Justice Centre sentence.  Whilst he is at the high end in terms of age and has spent a significant period on remand in the adult prison system David is deemed suitable for the following reasons:

He appears to have been the subject of substantial bullying in the adult system, demonstrating his vulnerability in that environment.

David has a number of unresolved trauma issues, arising from his own time in care and the death of his baby Alex soon after birth.

David has full responsibility for his offending – indicating his intention to plea at an early opportunity.  He also expresses remorse for his actions, which he states were stupid and reflective of his poor emotional and physical state at the time.

David has breached a number of Youth Justice Orders in the past but has always tried his best to comply, influenced by his overwhelming personal issues at any time.

David has limited support in the community from his family, but does indicate a desire to relocate to Melbourne to be with his girlfriend and her family once he is released from custody.

David’s mental health is questionable (reported anxiety, depression and schizophrenia) – he is currently being medicated for a range of problems and further assessment would be beneficial.

1. That was a relatively strong well reasoned recommendation which took into account the fact that the appellant had been in an adult prison.

1. In his reason for sentence his Honour did have regard for the principle in Mills v R.[3]  His Honour made reference to R v Wyley[4] where Maxwell P made reference to how the balance is to be struck between various sentences regarding youthful offenders.

   [3](1998) 4 VR 235.

   [4][2009] VSCA 17.

1. Later in his reasons for sentence he said:[5]

The benchmark for what is serious as justifying the adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, the shorter period of imprisonment may be justified.[6] 

Again, that is an indication of moderation being, at least, to be considered.   Mr Oblein, in this case, you have been in the adult system - that is, you have been incarcerated for a substantial period up until this day.  As you have been told, and I tell you again, you get credit for the time you have spent in custody;  it is not wasted time, in that sense.

[5]Reasons [36]-[37].

[6]R v Mills (1998) 4 VR 235 . It should be noted that by the time of sentence Mills was 21. Youth detention was not an alternative in that case.

1. Although his Honour said in the sentence that he had taken Ms Makepeace’s report into account[7] he does not say so in what regard and gives no reason for rejecting the detention in a Youth Justice Centre apart from the fact that it was opposed by the prosecutor[8] and saying:

Mr Oblein, you are most certainly a youthful offender when one refers to your age;  that is, 20, and you will turn 21 in September.  However, you are not a first offender.  As to your prospect of rehabilitation, I must say I have grave reservations, particularly in respect to your drug addiction - that is, marijuana - and the comments made by Dr Deakin.  I further observe that the various attempts in the Children's Court to assist you to rehabilitate failed if judged by your breaching the probation orders, the youth supervision orders, and the good behaviour bonds.

[7]Reasons [39].

[8]Ibid [24].

1. We are satisfied that the failure by his Honour to have greater regard to the report of Ms Makepeace does in all the circumstances amount to sentencing error because his Honour did not have sufficient regard to the alternative to adult imprisonment, namely, imprisonment in a Youth Justice Centre, that is particularly so having regard to the passage which his Honour quoted from Mills’ case.  His Honour also accorded undue weight to the fact that the appellant had been on remand in an adult prison.

Ground 3.  Manifest excess

1. We have taken this ground as being specifically directed at the proposition that the sentences imposed were to be served in adult imprisonment.  This was conceded by counsel for the appellant.  Counsel accepted that apart from that issue the sentences imposed were within the range.