R v O'Donnell
[2001] VSCA 88
•22 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 419 of 2000
| THE QUEEN |
| v. |
| DWAYNE EDDIE O'DONNELL |
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JUDGES: | ORMISTON, CALLAWAY and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 May 2001 | |
DATE OF JUDGMENT: | 22 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 88 | |
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CRIMINAL LAW - Sentencing - Armed robbery - Amateurish - Prior conviction for that offence - Pre-sentence report that not suitable for further youth training centre order - Extreme youth, aboriginality, difficult upbringing and guilty plea - Judge not bound to call for further pre-sentence report as to community-based dispositions - 30 months' imprisonment with non-parole period of 15 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and | Acting Solicitor for Public Prosecutions |
| For the Appellant | Ms S. Pillai | Petersen Westbrook Cameron |
ORMISTON, J.A.:
In this matter I will ask Batt, J.A. to deliver the first judgment.
BATT, J.A.:
This is an appeal by leave of a single Judge of Appeal against the sentence imposed on the appellant, Dwayne Eddie O'Donnell, on 14 December 2000 in the County Court at Melbourne. He had pleaded guilty on arraignment at Bendigo on 1 November 2000 to one count of theft and one count of armed robbery and the judge had ordered a pre-sentence report that day. The appellant was born on 21 December 1982, so that he was 17½ years old at the time of offending and almost 18 years old at the time of sentence. He admitted three prior convictions or findings of guilt from three court appearances. One was sustained on 1 February 2000 for armed robbery, for which he was sentenced to four months' detention in a Youth Training Centre. The maximum penalty for armed robbery was imprisonment for 25 years and for theft, imprisonment for 10 years. The judge heard a plea in mitigation of penalty on 13 December 2000, during which pre-sentence reports, being a report by way of psychological assessment by Mr Ian Joblin dated 4 December 2000 and a Senior Youth Training Centre Assessment Report by Ms Lorraine Meades, psychologist, of the Juvenile Justice Unit for the Loddon-Mallee region dated 11 December 2000, were tendered.
His Honour sentenced the appellant to be imprisoned for one month on the count of theft and for 30 months on the count of armed robbery. The sentences were to be served concurrently by operation of law and accordingly the total effective sentence was 30 months' imprisonment. His Honour directed that the appellant should serve a minimum of 15 months before being eligible for parole and declared that the period of 106 days of pre-sentence detention be reckoned as already served under the sentence. He also made an order for the taking of a forensic sample.
The facts of the offences and the facts personal to the appellant are set out in detail in the careful sentencing remarks of the County Court judge, which, subject to my later consideration of ground 2 in the notice of application, I treat as incorporated in these reasons. I do no more than give a summary. On 14 July 2000 the appellant stole a mountain bicycle valued, it seems, at about $400 from outside a hotel in Eaglehawk at night, while he was drunk, and rode it home to the Bendigo suburb in which he lived with his mother. In the afternoon of 16 July, after consuming two cans of beer, he rode the bicycle to a hotel in Bendigo. He had formed, or, it may be, there formed, the intention to steal alcohol from those premises. When he arrived he "cased" the place for half an hour. He aroused suspicions and was asked to leave the area. At about 7.30 p.m. he returned to the premises, entered the bottle shop area and bought a can of cola and a packet of chips. He later told the police that he had gone in in order to see how many people were in that area of the hotel before he committed the armed robbery. He then left the hotel, obtained an empty beer stubby, smashed the bottom part of it, kept the jagged end and concealed it on his person. He rode the stolen bicycle to a vacant block, where he put on an extra pair of tracksuit pants, and then walked to the hotel. He went into the bottle shop area a little after 9 p.m. When he was loitering after having purchased another can of cola, he was approached by the hotel owner and licensee, one Jones, and was offered assistance. The appellant abused him and, producing the broken stubby from his jacket, waved it around in front of him. He was described by witnesses as yelling out and "out of control". He then grabbed a bottle shop attendant, one Davis, but did not hold the stubby close to him. He next seized a packet of six vodka mix bottles, valued at $20, left the bottle shop area with them and started to cross the road. He was followed by staff and patrons of the hotel. He eventually dropped the alcohol and ran off.
The appellant was arrested at his home the following morning after some initial resistance. He was interviewed at the Bendigo Criminal Investigation Unit and made full admissions as to the armed robbery and volunteered the fact that he had stolen the bicycle. He showed police where he had obtained the stubby, where he had smashed it and where he had changed his clothing and hidden the bicycle.
The victims, Jones and Davis, were not injured as a result of the armed robbery but were traumatised by it.
The subject armed robbery was somewhat amateurish, but, as the judge noted, the earlier one, committed in Mildura, was more sophisticated, being committed in company with two other offenders, all equipped with knives and balaclavas. A shopkeeper and a number of customers had been threatened and $850 had been taken from the till.
The appellant has a tragic background, which is set out in detail in the two reports I have mentioned. In essence, he was brought up by a single mother who had chronic alcoholism and who had suffered very serious injuries in a motor vehicle accident when he was quite young. He is of Aboriginal stock and, to adopt the judge's words, has suffered all of the disadvantages of many of his race living on the margins of white rural communities. After attending primary school at Wilcannia and high school in Mildura, he completed his education at the Koori Open Door Education Centre in 1998. He is fully literate. The only work he had ever done was fruit picking for a short period. He himself had serious problems with alcohol and cannabis. While he was serving his youth training centre sentence his mother moved from Mildura to Bendigo. The appellant was released from Turana after some two months and went to live with her, but some five weeks before the commission of the subject offences she left to attend a funeral in Wilcannia, saying that she would be home in a day or so. She had not returned by the time the offences were committed and the appellant had become desperately short of food and money.
On 20 July 2000 the appellant was released on bail in respect of the present offences, but on 3 August he surrendered himself into the custody of police, requesting revocation of his bail, so that at least he would have a bed to sleep in and food to eat. While in custody up to the date of sentencing the appellant was in the section for young offenders at Port Phillip Prison. There he made many friends, particularly amongst other Aboriginal prisoners, and, as the judge said, did not waste his time but undertook useful educational and like programs. These included literacy, specifically English, computers, cooking, Koori education and art. In addition he worked in the prison kitchen.
Mr Joblin concluded his very useful report by expressing the view that the appellant should not be left to his own resources on release, that he needed assistance to try to find work and to avoid alcohol and drug use, and that he had potential intellectually but needed fairly close supervision. Ms Meades summarised her equally useful report by stating that the anger, drinking and offending behaviour were obvious concerns, but the deprivations - emotional, psychological, physical and cognitive - which the appellant had endured in his short life were where the work needed to be done to help the obvious expressions of his distress. She considered that the appellant's anti-social behaviour was unlikely to diminish without strong treatment interventions. She recommended that he was not suitable for a Senior Youth Training Centre assessment at the stage of reporting. Her reason for that recommendation was that he had had a very difficult time during his previous youth training sentence, resulting in no positive outcomes for him and numerous management difficulties. Consequently he himself was very strong in his view that he did not want to go to a youth training centre. She noted that he had settled into the adult system reasonably well and was demonstrating a level of stability and participation which indicated that he was more likely to achieve positive outcomes there. However, as his Honour was aware, once sentence was passed the appellant would be moved from the section for young offenders at Port Phillip Prison. His Honour expressed concern that things might not be as advantageous for him in the mainstream prison population.
The judge said that it was clear from the reports that the appellant was intelligent and had insight into his predicament, and also clear that he could not at that time exist in the community on his own resources. He had no confidence in the ability of the appellant's mother to provide proper support for him. The many factors in mitigation in the appellant's case, including his co-operation with the police, his early pleas of guilty and his remorse, all entitled him to a substantial discount. With reference to his then counsel's submission that it was appropriate to make an order for service of the whole or part of the sentence in the community (whether by way of a combined custody and treatment order, an intensive correction order or a community-based order), his Honour said that counsel had been unable to propose any realistic suggestion as to where the appellant would live while undergoing any such order in the community. Both specific and general deterrence were significant factors in sentencing. Having referred to the likely cessation of the appellant's detention in the Young Offenders Unit, his Honour expressed the concern already mentioned. In a significant passage, he then went on:
"Notwithstanding these concerns, and the importance of the rehabilitative aspect to a young offender such as yourself, I believe that the only appropriate sentence is one involving incarceration in the adult prison system. Further, I believe that your best chance of rehabilitation lies there and with the adult parole system."
He then imposed the sentences already mentioned.
On 19 December 2000 the appellant lodged notice of application for leave to appeal against sentence, setting out five grounds. I shall turn to those grounds shortly, but first I should make it clear in a case like the present, where the plight of the appellant evokes strong sympathy and has caused me anxious thought, that, since a sentence is a discretionary determination and since there is no single "proper" sentence, this Court's powers are limited. The Court sits on appeal and cannot simply engage in a new sentencing exercise unless there is first demonstrated to its satisfaction either specific error on the part of the sentencing judge or that the sentence imposed by the judge is manifestly excessive, that is, quite outside the range of sentences available to the sentencing judge in the exercise of a sound discretionary judgment in the particular circumstances of the offending and of the offender.
The first ground is that his Honour erred in refusing to obtain a pre-sentence report to examine the appellant's suitability for a combined custody and treatment order, an intensive correction order or a community-based order; in particular, that he erred in concluding, first, that a sentence of 12 months' adult imprisonment or less was not open in the particular circumstances of the offending and the offender, and, secondly, that no suitable arrangements for the appellant's accommodation could have been put in place by the time a pre-sentence report had become available. This ground is to be understood in the light of the fact that, immediately before his Honour proceeded to sentence the appellant, his Honour, noting that the appellant was by then keen to take advantage of any sentence by way of any of the orders mentioned in the ground, declined to order a further pre-sentence report, being a report, prepared by the Secretary to the Department of Justice, which s.96(2) of the Sentencing Act 1991 requires to be ordered where one of the community-type orders mentioned is being considered so that the sentencing court may establish the offender's suitability for the order. In so declining his Honour did say that a sentence of 12 months or less would not be appropriate in the case and, putting it in neutral terms, did refer to the inability to suggest any suitable living arrangements. He then said that he believed that he had adequate information, including the living conditions of the appellant, to proceed to sentence him and that there was no realistic basis for obtaining any further reports. As mentioned earlier, in his actual sentencing remarks his Honour made further reference to what was said to be the inability to propose any realistic suggestion as to accommodation.
The only bases of error contended for in support of this ground were the two particular alleged errors set out earlier. Ms Pillai presented a not unattractive submission to the effect that his Honour had made the second particular error (that is, the one concerning accommodation), but it is unnecessary to express a concluded view about that or about whether, on the other hand, the appellant failed to satisfy the statutory criteria for the making of one or more of the orders sought. For, in my opinion after anxious deliberation, it cannot be said, as it has to be said if the ground is to be made out in relation to a combined custody and treatment order or an intensive correction order, that it was not open to his Honour to conclude that a sentence of more than 12 months' adult imprisonment was warranted in the particular circumstances. It must be understood that the question is not whether, if this Court were sentencing the appellant, it would consider 12 months' imprisonment or even less was appropriate. What must be shown is that the view the judge took was not open. Giving due weight to the terms of s.5(4) of the Sentencing Act, to the principle that in the case of youthful offenders - and the appellant was a very youthful offender - rehabilitation is usually far more important than general deterrence and the linked principle that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, and also giving due weight to the other mitigating personal circumstances of the appellant, to his efforts to rehabilitate himself, to the amateurish nature of this armed robbery and to the very low value of the alcohol taken, I nevertheless consider that it was open to his Honour to conclude that the nature of the offence, the appellant's previous conviction for the same offence and the consequent importance of special and general deterrence warranted a longer term of imprisonment than 12 months.
I have kept for separate consideration disposition by way of community-based order because the period of such an order may be up to two years. His Honour's remarks immediately before passing sentence, which I have not set out on this point, show, I think, that he was well aware of that fact. The conclusion that a sentence of 12 months was not appropriate would not, if one disregarded the absence of actual imprisonment (unless for no more than three months under s.36(2)), rule out a community-based order. His Honour, however, as I understand him, did not deal in any detail with a community-based order because he treated it as quite inappropriate to the nature of the offence by an offender with a prior conviction for it. In that he was, in my opinion, correct, in view of the seriousness of the offence and the appellant's antecedents, not to mention the fact that compliance with a community-based order depends on the offender's initiative. Even if his Honour had overlooked it, the reasons just given show that there was no error in his not ordering a further report for the purpose of considering a community-based order.
The second ground of appeal alleged error on the part of the judge in that he gave no notice that his findings as to the factual basis for sentencing would depart from what had been put by the prosecutor, thereby depriving the appellant of procedural fairness. As indicated during argument, this ground fails for a number of reasons. The findings complained of in many, if not all, cases vary little from the prosecutor's opening and in all cases seem of little consequence. More importantly, this ground was predicated on there having been an agreement between the prosecutor and defence counsel that the facts should be taken to be those, and only those, opened by the prosecutor, whereas, not only was his Honour not told of such an agreement, but there is nothing in the material, nor is there any subsequent affidavit, to show that there was any such agreement. His Honour was entitled to rely upon the depositions and to do so without expressly notifying the parties.
The third, fourth and fifth grounds may be taken together. They respectively allege that the judge erred in placing too much weight on general deterrence and specific deterrence and in having insufficient regard to the appellant's youth, Aboriginality and personal circumstances, and that in all the circumstances the sentence imposed was manifestly excessive. The first two of those three grounds are best considered as particulars of the third. For the appellant reliance was placed upon the propositions, and particularly propositions (C), (E) and (H) set out by Wood, J. in R. v. Fernando[1]. It was submitted in particular that, although immediately before proceeding to sentence his Honour stated that he had regard to the principles established in the authorities cited to him by counsel for the appellant, which included R. v. Fernando, he did not treat them as mitigatory or have sufficient regard to them. I, however, consider that his Honour was only too well aware of the disadvantages under which the appellant had during his life laboured as one of Aboriginal stock and also of the appellant's other personal circumstances. Great stress was placed by Ms Pillai upon the appellant's rehabilitation. But, necessarily, it could not be shown that his rehabilitation was complete since it had not been tested outside the prison environment. Further, Mr Coghlan for the respondent, whilst making it clear that he in no way minimised what the appellant had achieved by way of completion of courses and work in prison, pointed to the concerns of Mr Joblin and Ms Meades and in particular to the latter's references to the appellant's continuing problems with managing his anger.
[1] (1992) 76 A.Crim.R.58 at 62-63.
The subject offences committed by an offender having the personal characteristics of the appellant cried out for a sentence of detention in a youth training centre. But that had been tried and failed and, for the reasons given by Ms Meades, the appellant was not considered suitable for such a sentence again. So, that sentencing option was not available and his Honour's sentencing task, I agree with Mr Coghlan, was made very difficult. Supervision was clearly required, so that a suspended sentence was inappropriate - and that, I hasten to add, was not sought for the appellant. His Honour, having excluded a combined custody and treatment order and an intensive correction order, selected a disposition by way of imprisonment with release on parole, so that supervision of the appellant after release would be available. Further, he fixed a non-parole period that was lower than usual in proportional terms, thereby recognising the appellant's potential for further rehabilitation. It cannot, in my opinion, be said that the form of disposition selected by his Honour was clearly inappropriate. As regards the length of the head sentence and of the minimum term, bearing in mind my introductory comments about this Court's powers, the reasons I have given in considering the first ground and additional considerations I have mentioned under grounds 3, 4 and 5, I am of opinion that the sentence was not outside the range open to his Honour in the circumstances. It does not give, I consider, undue weight to specific or general deterrence, nor does it have insufficient regard to the appellant's youth, Aboriginality and personal circumstances. Accordingly these grounds fail.
With regret, but not doubt, I conclude that this appeal must be dismissed.
ORMISTON, J.A.:
I will ask Callaway, J.A. to give the next judgment.
CALLAWAY, J.A.:
Once a further period of youth training is ruled out, neither the head sentence nor the non-parole period can be adjudged manifestly excessive. This was a difficult sentencing task. The judge gave careful consideration to the factors personal to the appellant that counsel submitted should have been accorded greater weight. In my opinion no error is shown in that regard or, in the circumstances of this case, with respect to general or specific deterrence. A head sentence of two-and-a-half years' imprisonment being within the range, it cannot be that his Honour was bound to give further consideration to a sentence of imprisonment not exceeding 12 months or a community-based order. Any tension between what he said about the accommodation that might be available to the appellant and counsel's submission on the plea then becomes immaterial.
For these reasons and those given by Batt, J.A., I, too, would dismiss the appeal.
ORMISTON, J.A.:
I agree. I would have thought the sentence modest in the circumstances, but for the matters personal to the appellant, which have been so comprehensively set out in the judgment of Batt, J.A. and in the reasons of the sentencing judge. I would, therefore, dismiss the appeal.
The appeal is dismissed.
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