R v Wilshaw & Lowe
[2001] VSCA 35
•3 April 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 86 of 2000
No. 87 of 2000
| THE QUEEN |
| v. |
| ANDREW JAMES WILSHAW and JEFFREY BRIAN LOWE |
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JUDGES: | BROOKING and TADGELL, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 March 2001 | |
DATE OF JUDGMENT: | 3 April 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 35 | |
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CRIMINAL LAW – Sentence – Aggravated burglary – Recklessly causing serious injury – Attempted theft – Vigilante conduct – Additional evidence of schizophrenia – Whether court should admit – Youth of appellants not given sufficient weight – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hicks, S.C. | Mr P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant Wilshaw For the Appellant Lowe | Mr R.J. Bourke Mr L.C. Carter | Doogue & O’Brien Doogue & O’Brien |
BROOKING, J.A.:
At the end of the day the question becomes whether the sentences passed on the appellants are shown to be manifestly excessive. In the view of the other members of the Court, they are. After some hesitation, especially in the light of the opinion formed by the majority, I have concluded that the head and total effective sentences on both men, while severe, are at the top of, not beyond, the range that was open to the judge. I shall shortly state my reasons for that conclusion. In doing so, because my conclusion is adverse to the appellants, I shall tend to emphasise what I regard as the unfavourable aspects of the case. To some extent I shall be repeating, but in some respects I shall be adding to, the summary provided by Coldrey, A.J.A.
Both appellants had an established and serious drinking problem at the time of these offences. Both of them were drunk at the time of the incidents, although not so drunk as to be imperfectly aware of what they were doing or unable to recall events subsequently. Unlike the other members of the Court, I do not regard the effects of alcohol consumption, given the youth of the imbibers, as a mitigating circumstance. Both men had been problem drinkers for some time and they must in my view take the consequences to the full of drink-related offences of this kind. Next, I do not, with respect, share the opinion that, vigilante activity not being prevalent amongst youthful offenders, the weight to be given to general deterrence must be viewed in that context. I doubt whether vigilante activity can, as a matter of the impressions of an appellate judge, be said to be prevalent amongst any particular class of offenders. But I imagine it would be found that such instances as we have of vigilante conduct are like as not cases of young men who drink heavily, both generally and on the occasion on which they exact supposed retribution. Be that as it may, vigilante enterprises must be suppressed.[1]
[1]Director of Public Prosecutions v. Whiteside and Dieber (2000) 1 V.R. 331 at 339.
That this was vigilante conduct is quite clear. Both men, acting on the say-so of a drinking companion, unknown to them, at the cricket club, took it upon themselves to punish “Fly” for his supposed activities as a paedophile. As the judge said, the offences were not entirely unpremeditated: a council of war was held at someone’s home after both offenders left the cricket club and before they invaded “Fly’s” flat. Each of them said that he went to the flat intending to bash the victim. Each of them armed himself with a stake which was described as several feet long and 4 inches by 4 inches. Wilshaw used his stake as a javelin, although it missed its mark. He admitted that he took his stake with him to hit “Fly” with it. There was not, I think, any corresponding admission by Lowe, but since both men entered the flat through the window without using the piece of timber to force entry, and since Lowe took his piece with him, and since his avowed intention was to beat rather than threaten “Fly”, he may be taken to have intended to use the stake as a cudgel, notwithstanding that he did not do so as it turned out.
The invasion took place in the small hours, when the victim was in bed. Wilshaw admitted that he had been to the flat some weeks before, standing outside it when a window of the flat was smashed by his then companion, who had some grudge against “Fly”. This incident is, of course, not to be treated as some prior offence on Wilshaw’s part, but it is part of the background against which his behaviour in mounting the subsequent invasion is to be assessed.
Wilshaw was not candid when first interviewed, but from his later admissions and other material it is shown that, having cast his missile at the victim, who was trying to telephone the police, he tore the telephone out of the wall and seized the iron bar with which the victim was vainly trying to defend himself. He used this to hit “Fly” on the head several times. “Fly” was being punched by Lowe as well as hit with the iron bar by Wilshaw; he quickly fell to the floor. He was still being hit on the head with the iron bar as he was lying on the floor. He was kicked in the head and in the trunk by both men and kneed in the head by both. Each man kicked him in the head several times. As the photographs and other evidence show, a great deal of blood was spilt.
The assault continued for several minutes, after which the attackers left by the front door. Lowe did not return, but after a few minutes Wilshaw did, taking with him O’Connor, whom he had asked to accompany him. Wilshaw had decided to return and steal “Fly’s” television set. When he was possessing himself of this, “Fly” was in the shower, washing the blood out of his hair. Wilshaw walked into the bathroom while the victim was still washing himself and by his own admission kicked him twice, while continuing to yell and swear at him, and then pushed him into the corner and kicked him again. Wilshaw then tried to remove the television set from the flat and the victim tried to stop him, which led, on Wilshaw’s own admission, to his “kicking him a bit more”.
This second invasion was made the more serious by the fact that another man, O’Connor, took part.
In addition to his physical injuries, the victim suffered from post-traumatic stress disorder, for which he received considerable counselling. His victim impact statement described his being afraid to go out after the attack, sleeping with a hammer at hand for safety’s sake, getting a dog as an early warning system and ultimately moving to another area.
Lowe had convictions sustained only six months before this incident for burglary and being found unlawfully on premises. A description of these offences was put forward by his counsel on the plea, but the fact remains that one of the offences was burglary and the offences were regarded as sufficiently serious to warrant a community based order requiring 150 hours of unpaid community work. It was, as the judge said, important that Lowe was still under this order at the time of his present offending.
These are some of the adverse considerations which have led me to conclude that the present sentences should be characterised as at the top of the range rather than beyond it, and accordingly to favour the dismissal of both appeals.
TADGELL, J.A.:
I agree with Coldrey, A.J.A.
COLDREY, A.J.A.:
Andrew James Wilshaw and Jeffrey Brian Lowe aged 20 and 21 years respectively, appeal from a sentence imposed in the County Court at Melbourne on 7 April 2000. On that date the appellant Wilshaw pleaded guilty to one count of aggravated burglary (Count 1), one count of recklessly causing serious injury (Count 2) and one count of attempted theft (Count 5). On Counts 1 and 2 he was sentenced to four years’ imprisonment and on Count 5 to 12 months’ imprisonment. Six months of the sentence on Count 5 were made cumulative upon the sentence imposed on Count 2, making a total effective sentence of four and a half years. A non-parole period of 18 months was fixed and a declaration was made that the appellant had served seven days pre-sentence detention. The appellant, Lowe, pleaded guilty to one count of aggravated burglary (Count 1) and one count of recklessly causing serious injury (Count 2). He was sentenced to four years’ imprisonment on each count resulting in a total effective sentence of four years. A period of 18 months was fixed as the non-parole period and seven days’ pre-sentence detention was declared to have been served.
The maximum penalty for aggravated burglary, contrary to s.77 of the Crimes Act 1958, is 25 years. The maximum penalty for recklessly causing serious injury, contrary to s.17 of the Crimes Act 1958, is 15 years and the penalty for attempted theft is five years.
The appellant, Wilshaw, had no significant prior convictions. The appellant, Lowe, had prior convictions for burglary and being found unlawfully on the premises for which he had been placed on a community based order for 12 months by the Magistrates’ Court at Broadmeadows on 8 September 1998.
In the course of argument, the court was informed that these offences arose from an episode in which the appellant, with a group of youths, broke into a local school intending to steal a didgeridoo. Nothing was, in fact, stolen. Further, the breach of the community based order constituted by the current offences was dealt with on 17 September 1999 when the appellant was re-sentenced and received a good behaviour bond without the recording of a conviction.
A co-offender, John Russell O’Connor, pleaded guilty to aggravated burglary and the theft of a video cassette recorder belonging to the victim of these offences. He was sentenced to a total of six months’ detention in a Youth Training Centre.
In the case of the appellant, Wilshaw, the grounds of appeal were in these terms:
1.The penalty imposed by the Learned Sentencing Judge was manifestly excessive.
2.The Learned Sentencing Judge paid insufficient regard to the fact that:
(a)the Appellant was a young offender;
(b)his prospects of rehabilitation;
(c) his plea of guilty and remorse;
3.A different sentence should have been imposed having regard to further evidence demonstrating that:
a.The Appellant suffers from a schizophrenia-like illness and developed a schizophrenia-like paranoid psychosis whilst in custody;
b.It is likely that the Appellant suffered from a schizophrenia-like illness at the time of sentencing;
c.It is likely that incarceration, particularly in an adult prison environment, contributed to the on-set of the psychosis;
d.By reason of his schizophrenia-like illness the Appellant is particularly vulnerable in a custodial environment.
Ground 3 was added by leave on 28 February 2001 and the order was made subject to the filing of an affidavit.
An affidavit, sworn by a Dr. Mark Taylor was filed on 5 March 2001 and exhibited two reports, the first dated 11 December 2000 and the second 5 March 2001. Leave was sought to rely on this additional material.
The grounds of appeal advanced by the appellant, Lowe, were as follows:
"1.His Honour sentenced the appellant to a term of imprisonment which in all the circumstances was manifestly excessive;
2.His Honour erred in law in the exercise of his discretion in that he failed to give any sufficient weight to the appellant’s age and prospects of rehabilitation."
In order to consider the various grounds it is convenient to first outline the facts founding the offences upon which the appellants were sentenced.
On Saturday, 20 March 1999 the appellants attended a function at the Glenroy Cricket Club. They consumed a large quantity of beer over several hours. Wilshaw spoke with a local man whom he identified as "Craig" who claimed that the victim of these offences who I will refer to by his nickname "Fly" was a paedophile and had attempted to entice his (Craig’s) children into his premises at Flat 7, 37 Trevannian Street, Glenroy. Between 10.30 and 11.00 p.m. the appellants left the cricket club and attended at a friend’s residence at Flat 1, in the same block of flats where Fly resided. The appellants continued drinking. At around 12.30 am they left Flat 1 and walked around the corner into Mitchell Street, being the street onto which the block of flats faced. They pulled from the nature strip wooden stakes to which recently planted tree saplings had been tethered. The appellant, Wilshaw, told police that he obtained the stake to hit Fly, although this did not subsequently occur. The appellants then went to the loungeroom window of Fly’s flat, removed the flywire screen, opened the unlocked window, and Wilshaw proceeded to climb inside. The noises made by the appellants woke Fly who got up to investigate. He observed Wilshaw climbing into the loungeroom window and immediately went to the telephone, situated in the kitchen area of the flat, to ring for police assistance. One of the appellants flung a stake which hit the wall near him. Both then ran across and Wilshaw ripped the telephone from the wall before Fly could finish dialling 000. The appellants then proceeded to assault him by punching and kicking. He picked up a piece of metal tubing and attempted to defend himself with it. Wilshaw wrested this bar from him and struck him around the head with it several times. Both the appellants admitted kicking and punching Fly in an attack which, on the victim's estimate, lasted about four or five minutes. At the same time the appellants verbally abused Fly accusing him of being a paedophile. Both admitted seeing copious bleeding from his injuries as their attack continued.
At some stage the appellant, Lowe, called out, "That’s enough". The appellants then left through the same window from which they had gained access and ran to a bungalow at 40 Heather Court, Glenroy. Here they met with John O’Connor.
The appellant, Lowe, left Heather Court and went to his girlfriend’s home in Graham Street, Glenroy. Meanwhile, Wilshaw and O’Connor walked back to Fly’s flat and, finding the front door open, walked inside. By this time Fly was in the bathroom washing the blood from his face and hair while waiting for emergency services to arrive. O’Connor walked into the loungeroom and took away a video cassette recorder. Wilshaw entered the bathroom and repeatedly punched Fly in the head while again verbally abusing him as a paedophile. After a short period the assault ceased and Wilshaw walked into the loungeroom where he picked up Fly’s television set and proceeded to carry it towards the door. His exit was blocked by Fly. Wilshaw put the television set down. Fly grabbed hold of Wilshaw’s shirt and the two men struggled through the open front door onto the front porch. At this stage Fly was calling out for help from his neighbour. Wilshaw continued striking and punching him in the area of the upper body. There is some conflict in the evidence as to whether Wilshaw managed to break free and escape alone, as he contended, or whether, as the victim asserted, O’Connor returned and punched him in the head causing him to let go of Wilshaw. In any event O’Connor returned alone to the bungalow at the rear of 40 Heather Court with the video cassette recorder. Meanwhile, Wilshaw went and hid in the rear yard of the property next door to the flats where he was found by the police at around 1.50 a.m. Lowe was arrested at approximately 10.35 a.m. in a caravan at the rear of the address of his girlfriend's parents in Glenroy.
Each of the appellants was formally interviewed and made admissions to having attacked Fly. They also stated their understanding that he was a paedophile - a proposition, I should interpolate, for which there was absolutely no evidence. Fly, himself, was conveyed to the Royal Melbourne Hospital where he was treated by Dr. Mathew Ryan. An examination revealed that there was a stellate shaped laceration of the right eyebrow with an associated haematoma. There was tenderness over the left cheekbone, blue/purple bruising below the left ear extending to the left side of the neck and there was also pain and swelling involving the right little finger.
A CAT Scan of the head did not reveal a skull fracture or brain injury, but an x-ray of the right little finger revealed a fracture of the intermediate phalanx. All of the injuries appeared recent and were produced by the application of blunt force.
In a Victim Impact Statement, Fly additionally described bruising to the left side of his arm and shoulder as well as to his back. The psychological effects of this assault have included fear of going out and socialising and difficulty in trusting people. Extensive counselling has been required.
Ground 3 was the first ground argued by Mr. Burke in his able presentation on behalf of the appellant, Wilshaw. He urged the Court to receive further evidence that the appellant, Wilshaw, was suffering from a significant mental illness, namely, schizophrenia and its effect upon the service by him of his term of imprisonment. Such evidence, if admitted, would, it was asserted, demonstrate circumstances at the time of sentencing that would have led to the imposition of a different sentence by the learned sentencing judge and, in any event, should result in the substitution of a different sentence by this Court.
Initially, the possibility of calling Dr. Taylor, the consulting psychiatrist whose opinion was relied upon, was canvassed. The difficulties inherent in such a course at this late stage having been discussed, counsel for the appellant chose to proceed upon the documentation.
It appears that in August 2000, the appellant, Wilshaw, was transferred to Malmsbury Juvenile Justice Centre by the Adult Parole Board pursuant to s. 244 of the Children and Young Persons Act 1989. At that venue he was seen by Dr. Taylor on 22 and 26 November 2000. Those examinations gave rise to the opinion, expressed in his first report, that the appellant appeared to have developed schizophrenia-like paranoid psychosis while in custody. Dr. Taylor described the appellant’s complaint that he was suffering from auditory illusions, ideas of reference, and persecutory delusional beliefs as credible. He also noted that the appellant’s half brother had earlier been diagnosed as having schizophrenia.
Prior to his second report, Dr. Taylor examined records from the appellant’s general practitioner which indicated that, at a consultation in November 1999, the appellant had complained of poor sleep, a low mood, de-motivation and suicidal ideation. At that time he had found he was isolating himself from his friends and family, seemed to have no energy; felt depressed; and stayed in his room watching TV all day. These problems had developed in September of 1999. His general practitioner, Dr. Mee, started him on the anti-depressant, Sertraline, and the sleeping pill, Temazepam. Dr. Matthews traced the appellant’s psychiatric deterioration during his time in custody noting, however, that he was now on a regular prescription of Quetiapine and expressing the view that although the appellant suffers from schizophrenia there had been a good therapeutic response to his prescribed anti-psychotic medication.
Dr. Matthews stated:
"Although this psychotic illness first became clinically manifest as such whilst held in custody, with the benefit of hindsight it would appear that Mr. Wilshaw was first experiencing the early (or prodromal) signs of the illness in late 1999. These prodromal signs tend to be non-specific, and typically include mood disturbance; anxiety; and increasing social isolation."
In response to a number of specific questions posed in the report, Dr. Matthews stated that the appellant was not suffering from a schizophrenia-like illness at the time of the offence in March 1999, nor was he suffering from schizophrenia at the time of sentencing. He reiterated, however, that in late 1999 the appellant appeared to have been suffering from the prodromal signs of schizophrenia. Dr. Matthews also expressed the view that imprisonment probably contributed to the on-set of the illness. He indicated that the prodrome of schizophrenia can be up to two to three years' duration and hence it was his view that the appellant was probably going to get the illness, "but that imprisonment arguably hastened its onset". (I note that Mr. Burke urged that "arguably" should be interpreted as "probably".)
One of the questions asked of Dr. Matthews was in these terms:
"(2.5)Is he particularly vulnerable in custody due to his illness, and if so is there any difference between adult prison and YTC?"
The doctor responded:
"Now he is receiving the appropriate treatment and psychological support (in Malmsbury) I am reassured about his personal safety. For someone with these difficulties, and this level of maturity, I believe the more open and less confrontational environment at the youth training centre would be preferable than adult prison."
On behalf of the Crown Mr. Hicks objected to the admissibility of this new material. In essence he argued that all the reported cases involved situations where the subsequent problem was mentioned to the sentencing judge and subsequently became manifest. He likened the current situation to one where, at the time of sentencing, there may be a single cancerous cell, which later manifested itself as cancer or the commencement of a thickening of the arteries later producing heart disease. Here, on the opinion of Dr. Taylor, the appellant was not suffering from schizophrenia as such at the time of sentencing.
In developing his submissions, on behalf of the appellant, Mr. Burke relied upon the case of R. v. Babic[2]. In that case, the applicant, Babic, sought to adduce fresh evidence by way of affidavit that a back injury he had sustained would result in the term of imprisonment imposed upon him, constituting a harsh burden. The evidence revealed that the back injury had occurred post-sentence. In the leading judgment of the Victorian Court of Appeal in which Winneke, P. and Ashley, A.J.A. agreed, Brooking, J.A. remarked:
"Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration of the Executive in the exercise of the prerogative of mercy, not by an appellate court [cases cited]. So it was laid down in Dorning (1981) 27 SASR 481 that evidence of a prisoner’s marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court. [Further cases cited.]
These authorities recognise, as did two early decisions of the Court of Criminal Appeal in England … that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence…
The decision most often cited in Victoria on a reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in Eliasen (1991) 53 A.Crim.R 391. That … was a case of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results showed that at the time of sentence he was suffering from the disease. Crockett J, speaking in effect for the court endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith [(1987) 44 SASR 587; 27 A Crim R 315] that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence. Crockett J went on to endorse also the view taken in Smith that generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender’s health. This has recently been called the second wing of Eliasen: Morgan (1996) 87 A Crim R 104 at 107-108 per Southwell AJA."
[2](1997) 93 A.Crim.R. 254
An example of the application of these principles is to be found in R. v. Rostom[3].
[3][1996] 2 VR 97
As was made clear in R. v. Eliasen[4], the additional evidence may lead to the imposition of a different sentence even where the judge’s sentencing discretion has not miscarried. For completeness I should mention the case of R v Maniadis[5] a case involving (inter alia) evidence of the depressed psychological state of the appellant at the time of sentencing. The Queensland Court of Appeal held that there was no principle that for such evidence to be admissible an applicant, knowing of its existence must not have realised its significance and his legal advisers must not have known of its existence at the time of the sentence hearing. It was held that the reception of such evidence ultimately depended on whether its exclusion would result in a miscarriage of justice. Albeit the Court was construing to a section of the Queensland Criminal Code, this approach would, with respect, appear to be correct in principle.
[4](1991) 53 A.Crim.R. 391
[5][1997] 1 Qd.R, 593
Whilst it is a matter of degree, I would regard the medically recognised prodromal state of schizophrenia, which had already manifested itself in a number of symptoms to which treatment was directed by the appellant's general practitioner Dr. Mees, as a matter appropriate to be drawn to the attention of the sentencing court. In this regard, I would treat the prodromal symptoms of schizophrenia in a similar fashion to undiagnosed cancer or a brain tumour existing at the time of sentencing.
If the sentencing Judge had accepted a psychiatric opinion that the imposition of imprisonment would probably result in the onset of schizophrenia, then alternative or modified forms of disposition may have been considered. However, the cases of Eliasen and Babic are authority for the propositions that ill-health will usually only mitigate punishment when it appears that imprisonment will be a greater burden on the offender by reason of state of health or when there is serious risk that imprisonment will have a gravely adverse effect on the offender's health.
In the present case the state of the affidavit material before the Court seems to me to fall short of demonstrating that this is the appellant's current situation. Whether that view results in the refusal to admit the affidavit material or leads to the conclusion that having admitted it, such material is insufficient to satisfy "the second wing of Eliasen", the result is the same.
Whilst Mr. Bourke argued ground 2 relating to the appellant's youth as a specific instance of sentencing error, the matters to which he adverted are equally relevant to, and subsumed in, the ground of manifest excess (ground 1).
In contending that the sentencing Judge did not reflect the youth of the appellant in fixing the sentence, the Court was referred to R. v. Mills[6] and, in particular, the comments of Batt, J.A., who, in the course of his judgment in that case, endorsed the following propositions (p.241):
"(i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).
(iii)A youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act)."
[6](1998) 4 VR 224
The attention of the Court was drawn to a number of cases involving young offenders who had perpetrated violent acts, the result of which had been incarceration in a Youth Training Centre. Reference was also made to the case of R. v. Edwards[7] where a 22 year old offender pleaded guilty to aggravated burglary, intentionally causing serious injury, armed robbery and false imprisonment arising out of one incident where the victim was an elderly victim, and admitted 16 previous convictions including four involving violence and received, (inter alia), prison sentences which were totally suspended.
[7](1993) 67 A.Crim.R. 486
The guidance provided by such cases will necessarily be limited by the array of individual fact situations they present. It is fair to say, however, that the cases cited exemplify the approach set out in Mills' case.
Apart from undervaluing the significance of the appellant's youth, it was submitted that the Judge equally undervalued the absence of prior convictions, the appellant's vulnerability in custody and prospects for rehabilitation in fixing the sentence.
It could not be said that the learned sentencing Judge did not advert to the matters raised by counsel in this regard. In considering whether each appellant should be sentenced to imprisonment in an adult prison or a youth Training Centre, his Honour said this:
"In that context I must take into account that for practical purposes this, Wilshaw, is your first offence, that in the case of you both this will be your first time in custody.
I must have regard to the nature of the offence and your ages, character and past history. I must also give great weight to such prospects of rehabilitation as you may have, and indeed, subordinate the need for general deterrence to that factor, but I am not precluded from considering other matters, particularly the gravity of your offence, nor the extent of the punishment that is, having regard to all the circumstances including your relative youth, called for."
His Honour went on to say:
"I am unable to conclude that three years' detention in a Youth Training Centre is sufficient in this case, in the case of either of you, and not least because I have no power in the case of a Youth Training Centre to fix a minimum term before you become eligible for parole."
The latter consideration is one which a sentencing Judge may take into account. In R. v. Misokka, (an unreported judgment of the Court of Appeal delivered on 9 November 1995), Callaway, J.A. recognised that there were cases where the legal incidents of a Youth Training Centre order (namely the inability to fix a minimum term to be served before eligibility for parole), will make it an inappropriate choice. His Honour, it must be said, expressed the view that such cases were probably rare.
In the same case, Vincent, A.J.A. remarked:
"There may well be situations in which, by reason of the ability of the Youth Parole Board to release a person, in respect of whom an order for detention in a Youth Training Centre has been made, at any time after the imposition of such a sentence, the necessity to impose a clearly defined period of incarceration would require the imposition of a sentence of imprisonment rather than an order for detention of that kind."
His Honour later commented:
"The central principle when dealing with young offenders is, in my view, quite clear and has been enunciated on many occasions over the years. Incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the court is satisfied that the powerful factors which have been accepted by the legislator and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more putative approach."
It was also submitted by Mr. Bourke that the learned sentencing Judge was overwhelmed by his view of the gravity of the offence including its vigilante type overtones. Further, he did not attribute sufficient weight to the effects of alcohol consumption given the youth of the imbibers. In my view, there is some merit in these submissions. Vigilante activity is not prevalent amongst youthful offenders and the weight to be given to general deterrence must be viewed in this context. Similarly, the effect of excessive alcohol consumption upon the judgment of the appellant and in circumstances where it had never before resulted in violent conduct appears to me to have been undervalued.
Whilst it was conceded that the imposition of an 18 month minimum period betokened some regard to the appellant's youth and prospects of rehabilitation, it was submitted that the head sentence did not reflect such factors.
Although the youth of the appellant was a primary focus of Mr. Bourke's submissions, he also placed great reliance on a constellation of other factors in arguing the ground of manifest excess. The additional factors to which he adverted were the appellant's absence of prior convictions and the fact that this would constitute his first custodial sentence; the fact that the appellant ultimately made a full admission in his record of interview; his early plea of guilty; the expressions of remorse; and his prospects of rehabilitation. The final matter being exemplified (inter alia) by his moderated drinking habits, his changed peer group, the stabilising influence of a long term relationship, attendance at the Learning North West Centre to further his education (he had had a limited education leaving school aged 14½), and the absence of any subsequent offending in the 12 month period between the commission of these offences and the imposition of the sentence for them.
In short it was submitted that having regard to the factors enunciated, a sentence of four and a half years, of which every day may have to be served, did not adequately reflect considerations of the appellant's youth and prospects of rehabilitation, and, in combination with the other factors enunciated, was manifestly excessive.
The grounds of appeal argued on behalf of the appellant Lowe may equally be approached under the umbrella of manifest excess.
On behalf of this appellant, Mr. Carter adopted the arguments presented by Mr. Bourke on the approach to be taken to youthful offenders. Mr. Carter submitted that, apart from considerations of the appellant's youth, there were five specific matters demonstrating his excellent prospects of rehabilitation. First, the offences were out of character notwithstanding the appellant's one relevant prior court appearance. That did not involve an offence against the person. It was a burglary in which entry to a school was obtained through a broken window which was not accompanied by any theft. It was put there was no supervisory component to the order emphasising rehabilitation. Secondly, despite a limited formal education, the appellant, having left school at the age of 14, had a strong history of employment having done two years of a moulding apprenticeship at a foundry in Campbellfield followed by two years of a sheetmetal apprenticeship in Coolaroo. He had also worked as a cleaner. Thirdly, having recognised the role that alcohol had played in committing the offences, the appellant had sought treatment at Moreland Hall and had radically reduced his intake of alcohol. Fourthly, he was in a stable de facto relationship of some two years' duration. And fifthly, the appellant had not re-offended in the year between the commission of the offences and sentencing.
Additionally, it was pointed out that the appellant was aged 19 years six months when these offences were committed. He had demonstrated remorse by his full admissions in the record of interview, his participation in a field interview, and his relatively early pleas of guilty.
Insofar as the offences themselves were concerned, Mr. Carter, in his helpful submissions, pointed to factors which, he asserted, were significant in mitigation. These included a lack of any detailed planning, the impact of the appellant's intoxication on his moral culpability given his youth and non-violent background (indeed it was put that the charge of recklessly causing serious injury may be regarded as reflecting the level of intoxication); the fact that the appellant did not use a weapon in the course of the assault; the fact that the appellant said: "That's enough" to the appellant Wilshaw, causing the violence to cease; the relatively short duration of the assault; the fact that the appellant did not return to the premises and the fact that the physical injuries of the victim did not require ongoing treatment.
In arguing that the sentences were not manifestly excessive, Mr. Hicks asserted that the learned sentencing Judge had correctly taken into account the age, character and past history of each of the offenders and the fact that it would be their first time in custody. He had given consideration to whether the sentence should be served in an adult prison or a Youth Training Centre. It was put that his Honour was entirely correct in determining that the offences called for "an immediate custodial sentence" and in concluding that three years in a Youth Training Centre was not sufficient. In support of this contention, Mr. Hicks pointed to the aggravating features of these offences namely that they involve the invasion of a person's home at night by men in company with at least the appellant Wilshaw having initially taken the garden stake for the purpose of beating the victim. It was pointed out that the victim offered no provocation to his assailants and was assaulted in different places within his home such assaults including kicking and, in Wilshaw's case, infliction of blows to the head with an iron bar. He also returned to the victim's premises and used additional force. (I should interpolate that I am prepared to accept that the return of Wilshaw to the premises and the taking of the television was a further act of victimisation rather than a desire to steal the television set.) Further, the appellant Lowe was already on a community based order for burglary at this time. Moreover, Mr. Hicks submitted, vigilante conduct (in this case entirely without justification), ought to be deterred.
It has constantly been said that the question of whether a sentence is manifestly excessive is not capable of much argument. All the matters articulated by Mr. Hicks have considerable weight and certainly lead me to the conclusion that the learned sentencing Judge was entitled to impose a sentence to be served other than in a Youth Training Centre in order to fix a specific minimum period before the appellants became eligible for parole. However, I am equally of the view, that given the approach of the courts to youthful offenders, into which category each of these appellants fell, together with the factors I have detailed evidencing excellent prospects of rehabilitation, the sentences imposed were manifestly excessive. Accordingly, I would allow these appeals against sentence. I would propose, in relation to the re-sentencing of the appellant Wilshaw that the period of imprisonment on Count 1, aggravated burglary, be two years. On Count 2, recklessly causing serious injury, two years and on Count 5, attempted theft, nine months. I would make three months of the sentences on Counts 2 and 5 cumulative upon Count 1, and upon each other, resulting in a total effective sentence of 2 years and 6 months. I would fix a period of 12 months before eligibility for parole.
In the case of the appellant Lowe, I would propose that on Count 1, aggravated burglary, the sentence be two years and on Count 2, recklessly causing serious injury, the sentence imposed be two years making a total effective sentence of two years' imprisonment. I would fix a non-parole period of 12 months.
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