R v Pike
[2003] VSCA 31
•3 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 143 of 2002
| THE QUEEN |
| v. |
| ALFRED JOSEPH PIKE |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 April 2003 | |
DATE OF JUDGMENT: | 3 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 31 | |
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Criminal law – Sentence – Offences of burglary, attempted rape and theft committed by 18-year-old intellectually disabled offender with extensive criminal history – Offences committed on 88-year-old lady in her own home – Head sentence of six years' imprisonment not manifestly excessive, but non-parole period of five years reduced to four years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Richard Edney |
PHILLIPS, C.J.:
The appellant, who is aged 20, pleaded guilty in the County Court at Melbourne on 14 May 2002 to a presentment containing three counts. These were a count of burglary (count 1), a count of assault with intent to rape (count 2) and a count of theft (count 3). These offences were committed on 14 July 2001 at Swan Hill and carried maximum penalties of ten years, five years and ten years' imprisonment respectively.
The appellant admitted 52 prior adverse findings (23 findings of guilt and 29 convictions) from five court appearances. These included convictions for burglary, theft and indecency offences. He had been variously fined, convicted and discharged, had matters adjourned without a conviction and had been detained in a youth training centre for several months. Before this sentence of detention was imposed by a court in March 2001, the appellant had been before other courts for 37 other offences and he committed these offences within a month of his release from the youth training centre.
After a plea for leniency the appellant was sentenced on 3 June 2002 to be imprisoned for three years on count 1, three years on count 2 and one month on count 3. His Honour directed that the whole of the sentence on count 2 be served cumulatively on that on count 1, making for a total effective sentence of six years' imprisonment. He fixed a non-parole period of five years and made a declaration of 322 days pre-sentence detention.
The appellant later lodged notice of application for leave to appeal against sentence pleading the following grounds:
“1. The sentence is manifestly excessive.
2.The learned judge failed to give sufficient weight to the applicant’s youth.
3.The learned judge failed to give sufficient weight to the applicant’s intellectual disability and psychiatric condition.
4.The learned judge failed to give sufficient weight to the applicant’s plea of guilty.
5.The learned judge failed to give sufficient weight to the applicant’s prospects of rehabilitation.
6.The learned judge failed to give sufficient weight to the programmes available to the applicant prior to his release from prison and that can be provided upon release on parole.
7.The learned judge erred in ordering cumulation in respect of the sentence imposed on count 2.”
Later, after leave to appeal had been granted, this Court allowed ground 8, which reads:
“The learned sentencing judge erred in failing
(a)To fix a greater disparity between the head sentence and the non-parole period
(b)To give discrete consideration to the setting of the non-parole period
(c) To give reasons for the non-parole period set.”
It is now necessary to set out in summary form the facts of these matters.
The victim is an 88-year-old retired lady and the offences were committed in her own home, which was a granny flat. At approximately 1 p.m. on the relevant date she was asleep in an armchair. She heard a wire door open and close and asked who was there. When there was no answer she walked outside and saw a man walking towards the adjacent house. This was the appellant. He asked was there anyone home, apparently referring to the house. He was told that there was and then went up to the house, then came back to the granny flat and the victim and said there was no one there. He then walked past her into the flat, saying he was going to ring a taxi.
Inside the granny flat, he seized his victim from behind and they fell to the floor. She continued to struggle and called for help. He tried to pull down her skirt and underwear and to lift up her singlet and shirt. He pushed his groin back and forth against her leg constantly. At one point the victim told him several times that she was going to die, but he kept on. The victim was eventually able to grab him around the throat. After that the appellant got up and left the flat, leaving the victim lying on the floor. She was able to crawl to the phone and call her daughter for help. She told the police the following:
“During the whole incident, I thought I was going to die. If it had gone on another couple of minutes I probably would have passed out from exhaustion. When the police arrived I was having an asthma attack … the worst attack I have had for years. I am scared to death of going back to my flat when I get out of hospital.”
When the police arrived at the scene they found the victim in a very distressed state. The appellant was arrested the following day. He told police that his initial intention was to enter the victim’s premises and steal money, but upon entry he decided to rape her. He said he eventually stopped after she struggled but he had had his penis out of his pants rubbing it against the complainant’s leg. He also said he had stolen $20 from the flat, which sum was apparently not missed by the victim (count 3).
At the plea hearing a victim impact statement was tendered. In it, the victim describes post-offence difficulty walking and breathing. She said she had suffered severe pain and bruising and scratches to her body and had had to give up her self-contained unit and move into a nursing home. She added, “I was once independent and secure. I am living in a nursing home and it distresses me greatly.” This statement was supported by a psychological report from a Lynne Boudinet-Johnson. I shall now quote a passage therefrom:
“Ethel Johnston was a fit and independent woman prior to her assault. It is evident that she has aged dramatically from the attempted rape and fear that she was going to die. The incident and aftermath of it has weighed heavily on her both physically and mentally and I do not believe that she will ever recover from it. Ethel has ended up in a hostel for the aged, which was her worst nightmare prior to the assault, and now is a reality that she is having difficulty coming to terms with … “
Also on the plea the judge received a declaration from an officer of the Department of Human Services that the appellant was intellectually disabled (Exhibit 1); a report from the Victorian Dual Disability Service, apparently of October 2000, concerning the appellant (Exhibit 2); a psychiatric report from a Dr Grant Lester dated 15 March 2001 (which report noted the appellant’s disabilities and stressed the necessity for him to be in a secure residential environment) (Exhibit 3), Dr Lester adding, “If this does not occur then the risk of him re-offending is significantly high”; a pre-sentence report dated 19 March 2001 (Exhibit 4); a justice plan dated 6 March 2001 (Exhibit 5); and a senior youth training centre assessment dated 22 March 2001 (Exhibit 6). All these papers were apparently prepared to assist the court at the appellant’s appearance at Bendigo Magistrates' Court on 22 March 2001 when he was sentenced to detention in a youth training centre. Also tendered were a further justice plan dated 27 February 2002 (Exhibit 7); a Community Services Report dated 29 January 2002 (Exhibit 8); and a report of a Dr Lester Walton, a consultant psychiatrist, dated 24 April 2002 (Exhibit 9).
I now turn to the arguments of counsel on this application.
Mr Croucher, for the appellant, relied on his written outline of argument and began his submissions by declaring that grounds 2 to 4 were, in effect, particulars of that pleaded in ground 1. He contended that the sentences on counts 1 and 2, the total effective sentence and the non-parole period were all manifestly excessive. He said that there were a number of mitigating factors in this case on which the appellant was entitled to rely. These included his admissions to the police, early indication of his subsequent plea of guilty, his youth, his intellectual disability as described by Dr Lester, his IQ of 70, his psychiatric condition, his history of drug and alcohol abuse, his deprived childhood and adolescence, the simplicity of the burglary offence and the opportunistic nature of the assault with intent to rape. Mr Croucher allowed that the sentencing judge had made reference to most of these matters, but argued that the sentences themselves demonstrate he could not have given these matters sufficient weight.
Continuing his submissions, counsel argued that the sentence on count 1 was closer to that commonly imposed for aggravated burglary, which had a maximum penalty of more than twice that of burglary. Turning to count 2, he submitted that, when one takes into account the maximum penalty available and all the mitigating factors he had previously set out, the notional starting point for this sentence must have been at, or even beyond, the maximum penalty, yet his Honour did not allot this offence to the worst category. Not even a substantial allowance for the protection of the community, counsel said, could logically explain this sentence.
If the foregoing submissions were correct, counsel argued, it necessarily followed that the total effective sentence and the non-parole period were also manifestly excessive. The sentence imposed on a young and afflicted man ought to be regarded as disproportionate and crushing. It smacked of warehousing.
Mr Croucher then turned to ground 7, which alleged excessive cumulation of sentence, saying that even if neither of the individual sentences were manifestly excessive, nevertheless the total effective sentence was, and it was the product of an erroneous cumulation direction. The appellant was not a statutory “serious sexual offender” and the prima facie rule in favour of concurrency was applicable. At most, the principle of totality, mitigating factors and the temporal link between the two offences justified only moderate, and certainly not total, cumulation.
As to ground 8, Mr Croucher said that counsel at the plea sought some reasonable period of parole, which request was not gainsaid by the prosecutor and this seemed to be in accord with the then tentative view of the judge. If I may interpolate, those assertions seem to be correct. Further, Mr Croucher asserted, there seems to have been no discrete consideration given by his Honour to the fixing of a non-parole period. Certainly he gave no reasons for it and such a failure ought, consistently with authority, invite scrutiny in circumstances where it was arguably outside the range properly open, given matters in the appellant’s favour.
Mr Croucher then addressed grounds 5 and 6, seeking to provide some explanations for what he contended was manifest excessiveness. He allowed that the appellant had poor prospects of rehabilitation, but argued that it was imperative the judge structure a sentence that gave the appellant some chance of achieving at least a degree thereof. He submitted that in the long run protection of the community, which the judge had said must be an element in any sentence he passed, was more likely to be achieved if the chances of rehabilitation are improved. They would be so improved, so the argument went, if the appellant had a long period of supervision under parole which would give him the incentive to comply with programmes in prison to increase his chances of early release. Instead, the sentence imposed was likely to have a contrary effect.
Mr Silbert, for the respondent, also relied on his written outline and disputed Mr Croucher’s claims as to excessive sentencing. He argued that the transcript showed that his Honour took into account all relevant matters. He submitted that the individual sentences were not outside the range and the argument that his Honour had commenced his reasoning process at or beyond the maximum applicable penalty was neither maintainable nor demonstrable. Manifest excess, he contended, was not plainly apparent and he cited Dinsdale v. The Queen[1]. Mr Silbert submitted that the total effective sentence imposed was within range and, it followed, so was the cumulation direction to be treated as appropriate. He did, however, query whether the cumulation ought to have been on count 2 as a more serious offence. Much more significantly, he went on to express a “misgiving” as to the length of the non-parole period in this matter, vis-à-vis the head sentence. He agreed it appeared to be unusual and inviting of scrutiny and said it may be that the youth and possibility of rehabilitation of the appellant do suggest a longer parole period.
[1](1999) 202 C.L.R. 321 at 325 per Gleeson, C.J. and Hayne, J.
I now turn to my conclusions, and I shall say at once that the sentencing of the appellant in the court below presented the learned judge with a very difficult task.
I have already noted that the appellant had committed many offences before he received a short custodial sentence. I also note that Magistrate Elizabeth Lambden caused very extensive enquiries to be made about him before she imposed that sentence. It emerges from the reports which appeared that the appellant had been offered assistance in his adolescence from a range of specialist agencies including child protection, disability services, juvenile justice, adolescent placement services and health and welfare agencies in Gippsland, Bendigo and Swan Hill. In 1999 a final diagnosis of schizophrenia was made concerning him. Those seeking to assist him found an abundance of evidence of his abuse of alcohol, cannabis and solvents. It was noted in 2000 that courts had shown leniency to him for theft and burglary offences and “that also seemed to have stretched his support within his cultural community”. By 2001 his schizophrenia had been addressed for quite a long time by intramuscular injections, but he was “poorly compliant with his treatment and difficult to access due to his very peripatetic lifestyle”. He admitted to a long history of marijuana abuse on a regular basis and to periods of alcohol abuse. He showed very little insight into his unacceptable behaviours. Also in 2001, it was noted that “his sexual offending has been long term and he has little insight into the potential damage to his victims”. Dr Walton’s report of 24 April 2002 included the following:
“Despite recurring problems, Mr Pike is reasonably manageable within a prison environment but he represents nothing less than a nightmare in terms of appropriate community management.”
Dr Walton continued:
“Mr Pike completely lacks insight into the nature of his mental illness, he is not at all motivated towards overcoming his substance abuse and he is a man of very limited intellectual and emotional resources.
The prognosis generally and specifically in relation to recidivism, is poor, although I do take some comfort in that Mr Pike seems not to have an extensive prior criminal history.”
It is well established that a complaint of manifest excessiveness such as ground 1, of which grounds 2 to 4 are particulars, may be resolved by first of all identifying all the relevant circumstances. Then, the faces of the relevant sentences are examined and they either appear manifestly excessive or they do not.
In this case, the complaint is made as to the individual sentences and as to the total effective sentence, the latter being said to be the product of excessive individual sentences and excessive cumulation of sentence.
Performing the exercise that I have just described, I am not persuaded that any of the alleged excessiveness has been made out. Put another way, I am not persuaded, as I must be for these complaints to succeed, that the various sentences and the cumulation direction lay altogether outside the range of those properly available to the learned judge.
As to the complaint that the learned judge failed to give weight to the mitigating factors put forward by counsel, examination of the transcript shows that his Honour referred to the appellant’s youth (p.22), his admissions to police (p.21), his intellectual disability (p.22), his psychiatric condition (p.22), his plea of guilty (pp.20 and 25), his substance abuse (pp.22, 23), his deprived childhood (p.23) and the opportunistic nature of count 2 (p.25) and the simpliciter character of the burglary (p.25). I am not at all satisfied that the burglary was simple in the colloquial sense. It was in fact an impudent and deceitful offence committed in the presence of an elderly lady who the appellant must have known could do nothing to preserve the integrity of her home in the face of his intrusion.
His Honour having mentioned all the other matters, it is not to be taken that he overlooked them. I have examined the face of the sentences for evidence that he did do so and I have been unable to find such evidence.
I would not uphold the complaint as to the cumulation direction. In my view, the commission of count 2 made a significant contribution to the appellant’s overall criminality and the cumulation direction made was one properly open to the learned judge in all the circumstances.
If I may say so, the submissions touching manifest excess and alleged reasons therefor, while made with Mr Croucher’s customary earnestness, do not, with respect, make adequate allowance for the extremely serious nature of the appellant’s offences and their dire consequences. The victim, despite her advanced years, was, as the judge found, in reasonable health and was a reasonably independent woman who drove her own car. She cooked and cleaned for herself and obviously enjoyed life, going shopping, playing bingo and visiting her friends. If I may say so, she was a woman who, throughout her life, had been, in Australian verbiage, a “battler” and who had known well family tragedy. She was the youngest of 13 children and a widow for many years. She had worked cleaning offices and houses and at babysitting until she was 78 years of age. If ever anyone had earned tranquil and worry-free declining years, she had. The learned judge found that the conduct of the appellant had resulted in the last years of her life being ruined by the appellant’s attack, and it is sad to relate that her conduct in seeking to assist the appellant was motivated by her habitual amiable attitude towards aboriginal people.
I now turn to the complaints under ground 8 which relate to the relationship between the head sentence and the non-parole period in the judge’s alleged failure to give discrete consideration to the setting of the latter and his failure to give reasons for his decision in that respect.
I agree that the relationship is different from the bulk of cases. It would have been better if his Honour had given reasons for his decision as to it, but he did not do so. Having regard to the misgiving expressed by counsel for the respondent and reviewing matters favourable to the appellant, I have come to conclude that in the fixing of the non-parole period his Honour’s discretion in some way miscarried, and I would uphold ground 8.
In my opinion, consistently with this Court’s duty to the community, the fixing of a non-parole period of four years is the appropriate course for this Court to take. If the other members of the Court agree, it follows that the appeal should be allowed and a new non-parole period be fixed, with the individual sentences and the cumulation direction being confirmed.
VINCENT, J.A.:
I agree with the disposition of this matter proposed by the learned Chief Justice and would add some comments of my own.
The sentencing judge was presented with an extraordinarily difficult task in this case. An elderly woman had been violently attacked and almost raped in her own home. Of itself, that was a very serious event and one which called for a powerful response when sentence was subsequently imposed upon the perpetrator. Not surprisingly, the consequences for the victim have been catastrophic. That reality also had to be recognised not only in relation to what happened to this particular victim, but by reason of the character of the offences involved and the vulnerability of aged persons in our community.
The appellant, although only 18 years of age at the time of the commission of the offences, had accrued a substantial criminal history encompassing crimes of dishonesty, damage to property, and the commission of indecent acts that Mr Croucher characterised in his submissions as exhibitionist in character. Various dispositions had been attempted to address this situation, including a period of detention in a youth training centre. He had, indeed, been released from that detention only a month or so prior to the commission of the offences with which we are here concerned. Accepting that the sexual attack made on the victim in this case was unpremeditated and opportunistic, there were features present and a variety of relevant considerations, including the seriousness of the conduct involved and the protection of the public, which militated strongly in favour of the imposition of a substantial term of imprisonment.
His Honour had also to take into account a number of matters that bore upon such factors as the level of personal culpability of the appellant, his pleas of guilty, his admissions to the police, the weight to be attributed to deterrence, both general and special, as sentencing considerations, and, of course, his prospects for successful rehabilitation. In these contexts it must be borne in mind that the appellant was quite young at the time of the commission of the offences. He was a child of aboriginal parents who separated when he was two years of age and he was brought up by his alcoholic mother. His early years were marked by extreme disadvantage, a transient and unstable lifestyle and possibly early sexual abuse. Of course, he has little education. By the age of 15 years, and perhaps not surprisingly, he had commenced to get himself into difficulties with the law, to drink alcohol, and he later developed what the judge termed “a strong drug abuse problem with cannabis”. As if these difficulties were not enough, the appellant was, in addition, significantly intellectually disabled. By the time of the commission of the offences he had begun to experience the symptoms of schizophrenia, possibly aggravated by drug abuse. All of these matters were the subject of specific reference by the sentencing judge and were incorporated into the synthesis represented by the individual and total effective sentences imposed.
With respect to the individual sentences, it is apparent that his Honour had regard to all of the relevant considerations. I note that he made specific reference to each of the mitigatory factors relied upon by Mr Croucher in his submissions before this Court, and I do not consider that any specific error is detectable in his Honour’s sentencing remarks. Complaint has been made, in particular, against the sentence imposed on count 1, the count of burglary. However, it must be borne in mind that the appellant had a history of commission of offences of dishonesty, including 20 prior counts of burglary, and he had, at the time of the commission of the offences, only been at liberty for a period of one month following a period of detention in relation to, among other matters, three charges of burglary. I do not consider that either of the individual sentences handed down could be regarded as outside the range available to the sentencing judge in the circumstances.
With respect to the order for cumulation, there were discrete offences involved and it is clear enough that some such order was justified. I am unpersuaded that his Honour fell into error in making an order for total cumulation in the particular circumstances of this matter. Nor am I of the view that the effective sentence thus created could be regarded as manifestly excessive.
A different situation emerges, however, when the minimum term fixed by the sentencing judge is considered. Whilst this Court has said on more than one occasion that there is no standard difference between the maximum terms imposed and the non-parole period fixed by a sentencing judge, generally a greater margin than that set by his Honour in the present matter would, as a matter of experience, be anticipated.
It is evident that the appellant has developed little insight to the nature of his conditions and has been resistant to treatment opportunities which have been afforded to him at this point. His Honour noted that “significant intervention in the form of individual therapy will be needed for at least twelve months while you are in the Marlborough Unit before he thinks you may be motivated to do something with your life”. This referred to a programme which it was contemplated would be implemented to try and assist the appellant whilst in custody. There would seem to be little doubt that, unless some change is effected, his future will be very bleak. The sentencing judge was conscious of that possibility, as his reference to the appellant’s “poor prospects of rehabilitation” demonstrates. In the course of the plea hearing, counsel then appearing for the appellant addressed this issue, urging the judge to impose a sentence which contemplated “some reasonable period of parole” to maximise his client’s chances of successful reintegration into the community. In this context I should add that one of the designated purposes, under s.5 of the Sentencing Act 1991, for which a sentence may be imposed is “(c) to establish conditions in which it is considered by the court that the rehabilitation of the offender may be facilitated”.
The situation before his Honour, as I have earlier commented, presented a number of complexities, the determination of an appropriate potential parole period not being by any means the least of them. However, he provided no reasons whatever as to why he adopted the course of imposing what was, on its face, a relatively long non-parole period, when a greater gap between the maximum and minimum terms would have appeared to have been called for in this case. In the particular circumstances, this failure, in my opinion, invites the scrutiny of the Court and the reconsideration of the length of the non-parole period fixed.
Presumably his Honour was concerned about the appellant’s poor prospects of rehabilitation and the need to protect the community. However, it is important to bear in mind that the protection of the community may not necessarily be advanced by a denial or reduction of parole, particularly in the case of a young, mentally impaired or intellectually disabled offender. Indeed, to approach the issue on that basis may well be counter-productive.
Having regard to all of the matters to which I have referred, including what appears to me to be the desirability of a reasonable period of release under supervision if the interests of both the community and the appellant are to be properly balanced, I too would set aside the non-parole period fixed in the court below and in lieu thereof fix a non-parole period of four years.
CUMMINS, A.J.A.:
I agree with the disposition of this appeal proposed by the learned Chief Justice and for the reasons stated by him and by Vincent, J.A.
I would only add this. Given the burdens, deprivations and limitations under which the appellant was labouring, there was every reason to give him the benefit of support and guidance provided by the parole system. That would be in his interests and in the community’s interests. I am confident that the prison and parole authorities will provide him with every proper assistance for his rehabilitation. Mr Pike can take steps to help himself, and I hope he now takes advantage of the programmes offered to him to assist in his rehabilitation.
PHILLIPS, C.J.:
The orders of the Court are:
The appeal is allowed and the sentence imposed in the court below is, in part, set aside. The non-parole period there fixed is set aside and in lieu thereof a non-parole period of four years is fixed.
The sentences on the individual counts, the total effective sentence and the declaration of cumulation there made are confirmed.
The Court declares that the period of 628 days is the period of pre-sentence detention already served by the appellant as part of the said sentence and directs that this declaration and its contents be entered in the records of the Court.
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