R v O'Connor
[2004] VSCA 8
•13 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 29 of 2003
| THE QUEEN |
| v. |
| CALEB JAMES O’CONNOR |
---
JUDGES: | VINCENT, J.A., SMITH and O'BRYAN, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 February 2004 | |
DATE OF JUDGMENT: | 13 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 8 | |
---
Criminal law – Sentence for multiple counts of burglary, theft and other offences – Young offender - Appellant undergoing a sentence of detention in a youth training centre – Transfer to an adult prison – Sentence made cumulative with uncompleted sentence of detention- Judicial error revealed in judge’s report re-opens sentencing discretion – Whether sentence minimum and maximum manifestly excessive – Operation of s.246 of the Children and Young Persons Act 1989 – Head sentence not manifestly excessive – Minimum term reduced from 3 years to 2 years.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr L. Carter | Christopher Traill & Associates |
VINCENT, J.A.:
I agree in the disposition of this appeal proposed by O’Bryan, A.J.A. I do so for the reasons advanced by him in his judgment.
SMITH, A.J.A.:
I have had the benefit of reading the judgment of O’Bryan, A.J.A., and agree that, for the reasons given by his Honour, the appeal should be disposed of as he proposes.
O'BRYAN, A.J.A.:
This is an appeal against a sentence imposed upon the appellant in the County Court on 10 February 2003 following a plea of guilty. The appellant was granted leave to appeal by Ormiston, J.A. on 24 October 2003.
The appellant was born on 7 February 1981 and was aged 22 when he was sentenced on10 February 2003.
On 2 January 2002 the appellant was sentenced in the Magistrates’ Court on 42 charges, the most serious being: burglary, 7 charges, theft, 9 charges, obtaining property by deception, 2 charges, attempting to commit an indictable offence, 10 charges, going equipped to steal, 2 charges. Five charges were concerned with motor cars.
The Magistrates’ Court sentenced the appellant to a total effective sentence of detention in a youth training centre for a period of 18 months.
On 31 January 2002 the appellant escaped from Malmsbury Juvenile Justice Centre and remained at large until he was arrested on 26 February 2002. On 27 April 2002 the Youth Parole Board transferred the appellant to an adult prison where he was required to serve the balance of his 18 months sentence, or was released on
parole at an earlier date.
The appellant was still undergoing his 18 months sentence when he was arraigned in the County Court on a presentment containing 53 counts: attempted burglary (1 count – count 1); burglary (17 counts – counts 5, 7, 10, 13, 17, 21, 23, 26, 28, 31, 36, 39, 42, 44, 46 and 51); theft (19 counts – counts 2, 6, 8, 11, 14, 18, 22, 24, 25, 27, 29, 32, 37, 40, 43, 45, 47, 50 and 52); obtaining a financial advantage by deception (2 counts – counts 3 and 15); attempting to obtain property by deception (6 counts – counts 4, 19, 20, 41, 48 and 49); obtaining property by deception (7 counts – counts 12, 16, 30, 34, 35, 38 and 53); criminal damage by fire (1 count – count 9) and making a false document (1 count – count 33). The court was asked to take into account a summary offence – escape from custody.
The appellant admitted 31 prior offences, the majority being for burglary and theft, from five court appearances between July 1998 and 4 November 1999. On 1 September 1999 he had been sentenced to a term of 10 months in a youth training centre.
Counts 1 to 24 were offences committed between 16 October and 20 December 2001 when the appellant acted alone and was aged 20.
Counts 25 to 53 were offences committed between 2 February and 19 February 2002 when the appellant acted alone or with a female. This was the period during which the appellant was at large following his escape on 31 January 2002.
Items of property stolen and sold to receivers totalled $45,000 in real value. Cheques from stolen cheque books were used to obtain or attempt to obtain cash from the accounts of the owners of the cheque books. Property obtained by deception totalled almost $19,000. None of the property stolen was recovered. The proceeds of the crimes was used to buy drugs or for extravagant living expenses.
It is unnecessary to detail the circumstances of each offence. The appellant broke into suburban homes through a rear window or door after being satisfied the owner or occupier was absent. One home was broken into twice. Money, household items such as electrical equipment, credit cards and cheque books were taken to be sold or used to obtain cash from banks or merchants.
The plea
The judge was informed that the appellant was due to complete the 18 month sentence on 17 July 2003. Allowing for the period when the appellant was at large in February 2002, the appellant had been in custody in an adult prison undergoing a sentence of detention for approximately 13 months when he was sentenced on 10 February 2002. This was not pre-sentence detention for the purposes of s.18 of the Sentencing Act 1991.
The plea revealed that the appellant came from a broken home at a tender age and lived with his mother until he was about 11 years of age. Then he was put into care as a ward of the State of New South Wales. He lacked the security and love provided in a normal home and his education opportunities were limited. At age 16 he left New South Wales and moved to Melbourne where he lacked family support and a permanent home. He began to offend and faced the Magistrates’ Court for the first time in July 1998 at age 17.
Counsel relied upon the plea of guilty and cooperation with the police in volunteering guilty in respect of six counts of burglary and six counts of theft of which the police were unaware.
Counsel did not draw his Honour’s attention to the Children and Young Persons Act 1989 during the plea.
The sentence
The judge said he took into account all the matters put to him by counsel in mitigation of penalty. His Honour observed in his sentencing remarks that the background history evoked sympathy and constrained him to temper his initial view as to the appropriate penalty. However, his Honour also observed that “principles of general and special deterrence must be paramount considerations in a spate of crimes of this magnitude”.
No remarks were made about the appellant’s prospects of rehabilitation for the obvious reason that they were dismal having regard to the criminal history outlined above. No real remorse had been demonstrated because the plea of guilty was inevitable after the appellant’s record of interview and the forensic evidence revealing his fingerprints at many places he had burgled.
Upon each of counts 3, 9, 10, 11, 15, 16, 35, 36, 37, 46, 47 and 53 (12 counts) a sentence of two years’ imprisonment was imposed. The judge selected 3 counts of burglary, 3 counts of theft, 3 counts of obtaining property by deception, 2 counts of obtaining a financial advantage by deception and 1 count of criminal damage by fire for the highest sentence. Upon each of counts 49 and 50 a sentence of 6 months’ imprisonment was imposed. They were counts of theft and attempting to obtain property by deception. Upon each of the remaining counts a sentence of 1 year’s imprisonment was imposed. A direction as to cumulation was made in respect of the sentences imposed on count 9 (2 years), count 51 (1 year) and count 3 (2 years) producing a total effective sentence of 5 years. Cumulation was also ordered in respect of the sentence of 18 months the appellant was currently undergoing. A non-parole period of 3 years was fixed before the appellant could become eligible for parole.
The effect of the sentence imposed by the sentencing judge meant that the total period the appellant might have to serve under the Magistrates' Court sentence of detention and the County Court’s sentence of imprisonment would be 6 years and six months (5 years plus 18 months). The minimum term in custody would be 4 years and one month (3 years plus 13 months) for the minimum term commenced to run on the date the sentence was imposed, by which time the appellant had already been in custody for thirteen months.
The original grounds of appeal were amended by leave of the Registrar, Court of Appeal on 5 February 2004. The following three grounds are now relied upon:
(1)The total effective sentence and minimum term are manifestly excessive.
(2)The learned sentencing judge erred by failing to consider and apply s.246(3) of the Children and Young Persons Act 1989.
(3)The learned sentencing judge erred in the application of the totality principle by failing to have any or sufficient regard to the fact that the appellant would serve the 18 month YTC sentence imposed on 2 January 2002 – (i) in full; and (ii) mainly in an adult prison.
The Appeal
When the appeal hearing began the judge’s report very fairly revealed that his Honour was now of the opinion that [he] may have had insufficient regard to the prisoner’s relative youth and the fact that in February 2002 he was first required to serve his detention in an adult prison from which he will not be released for a total of four years and five months if the non-parole period of three years, which [he] fixed, is allowed to stand.
The report thus reveals that the sentence imposed by his Honour was made on an incorrect foundation and the mistake is in favour of the appellant.
However, his Honour did not have regard to s.246(2) Children and Young Persons Act 1989 which provides:
“(2) If a person –
(a)has been sentenced to detention in a youth training centre; and
(b)before the end of that sentence is sentenced by a court to a term of imprisonment to be served cumulatively on the sentence of detention –
service of the sentence of detention must be suspended until that person has served the sentence of imprisonment.”
Because the non-parole part of the sentence became effective on the day it was fixed the appellant will become eligible for parole on 10 February 2006. If he is released on that date he will have served a period of four years and one month (approximately) in an adult prison.
It became obvious to the Court, and Mr McArdle for the respondent correctly conceded, that the mistake revealed by the sentencing judge’s report re-opened the sentencing discretion.
Ground 2 has no substance. Section 246(3) of the Children and Young Persons Act 1989 provides:
“(3) Despite anything to the contrary in any Act, every sentence of imprisonment imposed on a person by a court must, unless otherwise directed by the court at the time of pronouncing the sentence, be, as from the date of its commencement, served concurrently with any uncompleted sentence or sentences of detention in a youth training centre imposed on that person, whether before or at the time the relevant sentence was imposed.”
His Honour did make a direction that the uncompleted sentence of detention in a youth training centre would be served cumulatively with the sentence he imposed and he did so at the time of pronouncing the sentence. His Honour was not required to refer to s.246 when passing sentence. He was required by the section to give a direction as to cumulation which he did.
Grounds 1 and 2 may be considered together.
Mr Carter who appeared for the appellant submitted that the head sentence of five years was manifestly excessive when the eighteen month sentence is cumulated and outside the permissible range. I do not agree. The appellant is a serial burglar and thief and an incorrigible offender as his criminal history reveals all too clearly. Mr Carter submitted that the imposition of a sentence on a youthful offender which might result in him having to serve a period of six and a half years in an adult prison is a crushing sentence. I do not agree. The offending was very serious and called for a substantial sentence to deter the offender from pursuing his criminal conduct. The sentencing judge considered the relevant facts and sentencing principles before passing sentence. Apart from the error revealed in the judge’s report, the head sentence is within range.
The minimum should be viewed differently, in my opinion. As I have already indicated, should the appellant be released on 10 February 2006 he will have served a sentence mainly in an adult prison of four years and one month. In my opinion, the effect of the minimum term is manifestly excessive in the circumstances referred to in the report. I would propose to the Court that the minimum term should be reduced to two years, but otherwise the sentence should stand. I would allow the appeal against sentence.
---
0
0
0