R v Parkhurst
[2002] VSCA 36
•21 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 194 of 2001
| THE QUEEN |
| v. |
| DAVID PARKHURST |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 21 March 2002 | |
DATE OF JUDGMENT: | 21 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 36 | |
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Criminal law - Sentencing - Youthful offender - Offences including crime of arson committed to conceal identification of prior entry - Sentence of 4½ years with "exceptionally low" non-parole period of 18 months - Held not to be "manifestly excessive" - Nature of appeal based on "manifest excessive" dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Mr R.F. Pirrie | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
WINNEKE, P.:
The appellant, David Parkhurst, is now aged 21. At the time of the offending which brings him before this Court, he was 20 years of age and unemployed. Although he comes from what appears to be a dysfunctional family, and he himself has been a long-time sufferer from epilepsy, he has generally, apart from two convictions for minor theft, been free from trouble with the law. It is clear from the facts surrounding the commission of these offences that he is somewhat easily led and tends to fall into the wrong company, no doubt for the purposes of giving himself confidence that he does not possess. All of these matters created something of a sentencing problem for the judge who was called upon to sentence David for offences which were quite serious in their nature.
On 12 July 2001, the appellant pleaded guilty before a County Court judge to a presentment containing five counts of burglary, theft and arson, which essentially related to two discrete episodes of criminal behaviour. The first episode was on 21 August 2000, when the appellant participated in the burglary of milk bar premises in Chestnut Grove, Doveton, from which a quantity of cigarettes was stolen. The last four offences on the presentment, namely, counts 2 to 5, all occurred on or about 25 October 2000 and concerned a planned and concerted episode of criminal conduct, culminating in the setting fire to premises at 42 Box Street, Doveton.
It appears that the appellant knew the stepson of the owner of those premises and to some extent had been prepared to commit the offences to "avenge" what he perceived to be wrongs visited by the stepfather upon the son. In any event, after collaborating with two of his colleagues, the appellant, in the company of one of them, stole a car from the driveway of a nearby house (count 3), drove to 42 Box Street, the owner of which was known to be absent for the night, parked the car in the garage of the premises, forced their way into the rear of the house (count 2), and stole some $10,000-worth of items (count 4), storing them in the stolen car concealed in the garage. These stolen goods were then transported to the home of the third colleague, who purchased them at what appears to be a gross under-value.
In what seems to have been a final insult, the appellant then returned to the premises at 42 Box Street, where he doused inflammable fluid on the curtains in the front room and set fire to them. For good measure, he appears to have opened the gas jets in the kitchen, which were close to the seat of the fire. By the time the fire units arrived the front of the house was ablaze. It was no doubt due to the competence of the firemen that the blaze was contained before the escaping gas could further contribute to the damage. The total damage was estimated at about $65,000.
In the course of their investigations, police were told that the appellant had determined to set fire to the house in an endeavour to conceal his participation in the burglary and theft. The appellant claimed that he did this under pressure from his colleagues.
Although it was put to the experienced sentencing judge on the appellant's behalf that any sentence imposed could be wholly suspended, his Honour took the view that the offences, and particularly the arson, were so serious that total suspension was "out of the question".
The appellant was the eldest of the three members of these criminal enterprises. The others were dealt with in the Magistrates' Court and Children's Court respectively. His Honour took the view, and I think correctly, that he was not constrained by parity principles in sentencing the appellant. He also took the view that, of the crimes committed by the appellant, the most serious by far was the arson, particularly as it had a potential, as was intended, to cause an explosion capable of causing extensive damage, not only to property but to persons. Nevertheless, his Honour recognised a number of mitigating factors which had to be brought to bear in the sentencing process. He recognised the early plea of guilty, the demonstration of remorse, the severing of relations with the "bad company", and the desire to rehabilitate and secure proper employment. He recognised the relative immaturity of the appellant and his youthfulness. It was in recognition of the various factors which he had identified that his Honour expressed the reasons for exercising his sentencing discretion as he did, in the following terms:
"The gravity of your offending is such that I have no option other than to imprison you, both for the purpose of deterring you from offending again in the future and for the purpose of deterring others from copying your behaviour. But notwithstanding that the head term is, and must be, significant, I have fixed a minimum term that is exceptionally low. I have done that in the light of your present attempts of rehabilitating yourself and in the hope that the process will be continued and assisted by the resources of the Parole Board when you are permitted to go at large."
His Honour then fixed sentences as follows: on count 1 (the burglary of the milk bar) - 12 months; on count 2 (the burglary of 42 Box Street) - 18 months; on count 3 (the theft of the car) - six months; on count 4 (the theft of items from Box Street) - 18 months; and on count 5 (the arson of Box Street) - four years. His Honour cumulated six months of the sentence on count 1 upon the sentence imposed on count 5. The total effective sentence was therefore four-and-a-half years. His Honour fixed the non-parole period at 18 months.
With the leave of this Court, the appellant appeals against those sentences on the ground that they are manifestly excessive. It perhaps should be noted that, when granting leave, Callaway, J.A. said: "The non-parole period is ... quite generous. Even if the Court of Appeal did reduce the sentence of four-and-a-half years, they are unlikely ... to reduce the non-parole period."
Mr Thomas, who appears for the appellant in this Court, has recognised that, although there are seven enumerated grounds of appeal, the last six are but particulars of ground 1, which recites that the sentence imposed by his Honour was manifestly excessive. Mr Thomas also recognises that extensive argument in support of that ground is not helpful. As this Court has frequently said, an assertion of error in the sentencing process of the court below on grounds that the sentence is manifestly excessive is not something which admits of much argument, because, against the background of the relevant sentencing factors which were known to the trial judge and presumed to be known to the appellate court, the particular sentence attacked must appear to the appellate court to be of such magnitude as to make it one outside the range of sentences reasonably open to the sentencing judge, and thus to demonstrate error on its face. As I understand him, Mr Thomas attacks the sentence for arson in particular, namely, a sentence of four years, on this basis. He too, like the judge, has pointed to the guilty plea, the appellant's youth, his relative immaturity, his prospects for rehabilitation and his susceptibility to the focal epilepsy from which he suffers. In its essence, the submission is that the youth and immaturity have been grossly under-estimated, whilst deterrence has been allowed to weigh too heavily in the sentencing process. He has called in support authorities which are constantly relied upon, such as R. v. Mills[1] and R. v. Duncan[2], on questions of youth and immaturity, and R. v. Cameron[3], on the effect and impact of a guilty plea upon the sentence imposed. It is contended by Mr Thomas that his Honour has "almost turned his back on" (not his words, but mine) these authorities. His Honour recognised the appellant's youth and immaturity, it is said, but not its significance. Mr Thomas said that this is a case where this young man should never have been incarcerated at all, and, although his Honour was sceptical about the accounts which the appellant had given to the police, it was clear, said Mr Thomas, that he was a man unable to handle himself in adult prison circumstances. His youth and his immaturity make him susceptible to nothing else but down-grading. The four years on the arson offence and the cumulation of six months of count 1 on count 5 were, so says Mr Thomas, not appropriate exercises of the sentencing discretion and should be seen to be so by this Court.
[1][1998] 4 V.R. 235.
[2][1998] 3 V.R. 208.
[3][2002] HCA 6.
All of these matters to which Mr Thomas has pointed were clearly matters of mitigation. They were also matters which it appears the judge was well aware of and purported to take account of. The argument really amounts to the assertion that the judge got the "mix and balance" wrong, and that the fact that he has is to be found in the sentence which he has imposed. Indeed, Mr Thomas has gone so far as to contend that even the non-parole period which his Honour has fixed is too high, in the sense that this man was of such youth and immaturity that he should never have been incarcerated at all.
Whilst I can appreciate the force of many of the submissions which have been made to this Court by Mr Thomas, they, as frequently occurs, are put to us as if we are re-exercising the sentencing discretion of the judge below. That is why, so often, counsel begin submissions on an appeal based on the ground of manifest excess by paying lip service to what should be an immutable truth, namely, that an appeal based on such a ground admits of little argument, but go on for substantial periods seeking to justify the ground. I acquit Mr Thomas of any such exercise in this Court, and indeed, in any event, counsel have their duty to their clients. I am simply making a statement as to the limited nature of an appeal against sentence based on manifest excess. I am also making a plea to counsel to recognise the limits of that ground.
In the long run, I am not persuaded that the sentences imposed by his Honour, or his orders for cumulation, or the non-parole period which he fixed, are attended by error of the type asserted. Nor am I persuaded that the sentences, and particularly that imposed on count 4, are manifestly excessive. The crime of arson is undoubtedly a serious offence. The maximum penalty for an arson of this nature is 15 years. This arson was a bad example of the crime because it was premeditated and had, as a foundational purpose, the concealment of the preceding crime which had been carried out at the premises. It was a crime which did carry with it a potential for much harm and what would seem to be a reckless disregard for its consequences. All of these things the judge was entitled, indeed bound, to take into account in determining how to punish this offence. In the exercise of his discretion it was peculiarly a matter for him to weigh in the balance the various factors relevant to his sentencing task, and particularly how that balance and mix should be reflected in the weighting of sentencing purposes which he was, both by common law and statute, bound to apply. His Honour's conclusion that the offence of arson committed by the appellant was attended by such factors of gravity and moral culpability on the appellant's part that it had to be punished by a significant period of imprisonment, the principal purpose of which should be to deter the appellant and others from committing like crimes, does not appear to me to be attended by error; nor does it lead me to the view that his Honour "got the balance of sentencing factors" wrong. His obvious aim was to punish a serious crime with an appropriate punishment and to cater for the appellant's obvious prospects by fixing, as he said, an exceptionally low non-parole period to facilitate the rehabilitation under appropriate supervision. That, in my view, is an exercise of his Honour's sentencing discretion which I think was quite appropriate to the case and the factors in the case before him.
I would dismiss the appeal.
CHARLES, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the appeal is dismissed.
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