R v Wilson
[2004] VSCA 86
•12 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 202 of 2003
| THE QUEEN |
| v. |
| RUSSELL JOHN WILSON |
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JUDGES: | WINNEKE, P., ORMISTON and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 May 2004 | |
DATE OF JUDGMENT: | 12 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 86 | |
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Criminal law – Sentence – Theft – Criminal damage – Burglary – Appellant with extensive prior criminal history – Appellant on parole when offences committed – Sentencing Act 1991 s. 16(3)(B) – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Theo Magazis & Associates |
WINNEKE, P.: I will invite Vincent, J.A. to give the first judgment.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court at Melbourne on 15 July 2003 to two counts of theft (counts 1 and 4 on the presentment), one count of criminal damage (count 2) and one count of burglary (count 3).
These charges arose from events which took place at Rowville on the night of 8 February 2003 and ended in the early hours of the following morning at Doveton. They commenced when, just before midnight on 8 February, a Holden Commodore station wagon was stolen from the nature strip in front of the home of its owner in Rowville. Shortly afterwards, the appellant drove this vehicle to the Foodright Supermarket in Autumn Place, Doveton (count 1) where he reversed it into the front glass doors of the store, thereby smashing them (count 2). He then entered the premises and removed a number of items which he placed in the car (counts 3 and 4). The appellant repeated the procedure until just before 1 a.m. when a security guard arrived. He then ran from the store with a skivvy wrapped around his head and carrying a carton of items. He ran to the stolen car and attempted to drive away, but was prevented from doing so by the security guard who entered the vehicle on the passenger side. However, the car moved forward until it collided with a barrier pole on the footpath. The appellant attempted to escape but was restrained by the security guard. The police arrived shortly afterwards and he was arrested.
At the time when he was taken into custody, the appellant was wearing gloves and had a screwdriver and other items of housebreaking equipment in his possession. The various items that he had taken from the store were found in the vehicle and on the ground nearby. They were valued at $1,872.75. The cost of repair to the supermarket door was $32,760 and that of repairing the stolen vehicle was $2,500.
At his subsequent interview with the police, the appellant denied that he had initially stolen the vehicle and claimed that he had obtained it from a friend. Whilst the sentencing judge understandably possessed doubts concerning this version, he sentenced the appellant on this basis. In the interview the appellant said that he had selected the particular supermarket as he had been there before. He stated that he was unable to provide an explanation for the wrapping of a skivvy around his head, but accepted that it may have been there in order to disguise himself in the presence of a security camera that he knew was installed in the premises.
The appellant admitted what was appropriately described by his Honour as "a truly formidable list[1]" of prior convictions arising from 21 court appearances between 1989 and 2003. They included a large number of convictions for theft, attempted theft and burglary, and two for armed robbery, as well as a substantial number of convictions for drug offences and for a variety of different forms of criminal offending.
[1]Sentence at p.23
Of particular relevance to the present matter was the imposition on the appellant, on 12 February 1999, of a total effective sentence of seven years' imprisonment with a non-parole period of five years for two counts of armed robbery and two counts of theft. He was at liberty on parole under that sentence at the time of the commission of the offences with which we are concerned, having been released no more than two months before their commission.
After hearing a plea in mitigation of penalty, the sentencing judge on 15 July 2003 sentenced the appellant as follows:
On count 1 - 12 months' imprisonment
On count 2 - two years' imprisonment
On count 3 - two years' imprisonment
On count 4 - 12 months' imprisonment.
He directed that the sentence imposed on count 3 be served wholly cumulatively upon that imposed on count 1. This created a total effective sentence of three years' imprisonment for these offences. He then directed that that sentence was to be served cumulatively upon what he described as "the sentence that you are presently undergoing[2]". This disposition, his Honour perceived, created a total sentence of ten years' imprisonment. Of that period, he directed that the appellant serve a minimum term of seven-and-a-half years before he became eligible for parole. His Honour also directed that the period of 157 days that the appellant had undergone as pre-sentence detention for other matters, which had not yet come before the court, should be reckoned as having been served under the sentence that he was then imposing.
[2]Sentence at p.27
It is, I consider, apparent that the sentencing judge intended to impose what would effectively be a total sentence of three years for the commission of the offences before him, of which the appellant would be required to serve a minimum period of two years and six months. That sentence would in turn be served cumulatively upon any period that the Parole Board may require the appellant to serve for his breach of their earlier order.
Unfortunately his Honour fell into error in bringing about this outcome in two separate respects. First, he appears to have been under the misapprehension that it was necessary, by reason of s.14 of the Sentencing Act 1991, to fix a new non-parole period which would operate in respect of both the earlier imposed effective sentence and the sentence which he regarded as appropriate for the particular offences before him.
Section 14, however, has application only in a situation in which the offender to be sentenced is in custody serving a sentence in respect of which a non-parole period has been fixed, that period not having expired. If the offender is to be sentenced to a further term in respect of which it is proposed to set a non-parole period, the sentencing judge is required to fix a new single non-parole period in respect of all of the sentences that the offender is to serve or complete.
That was not the situation in this case. The appellant had been released on parole upon the expiration of his earlier non-parole period. In that circumstances, the position is governed by s.16(3)(B) of the Act. The proper course for his Honour to have adopted was to have imposed appropriate sentences for the individual offences committed by the appellant, then, through the making of orders for cumulation, determine the effective head sentence and fix a non-parole period relative to that head sentence and appropriate in all the circumstances. No further order was required unless his Honour formed the view that, by reason of the presence of exceptional circumstances, that sentence was not to be served cumulatively upon any period of imprisonment that the appellant may have been required to serve if and when his existing parole order was cancelled. In that situation all that would have been required was an order for concurrency.
The second respect in which his Honour fell into error was that, whilst the sentence being handed down may have had a practical effect of increasing the total period that the individual could be required to serve through the actions of the Parole Board, the sentencing judge does not, as appears to have happened in this case, set a new global head sentence which attaches to the later imposed sentence. Not only was the sentencing judge clearly incorrect in addressing the matter as if he were fixing a global sentence in the circumstances, I consider that there is force in the submission advanced on behalf of the appellant that the non-parole period appears to have been fixed by reference to the overall period of possible incarceration of the appellant and not the total effective sentence of three years for the particular offences. No explanation was provided in his Honour's sentencing remarks for the remarkably small gap between the total effective sentence imposed for the offences before him and the non-parole period of two-and-a-half years, particularly when regard is had to the nature of the plea advanced on behalf of the appellant. I observe in that context that counsel appearing in the court below submitted:
"Since he's been about 17 he's hardly spent any time out in society, and that actually seems to have been the cause of the crime he's now before you for.[3]"
Counsel argued that, having spent almost fourteen-and-a-half years in custody in youth training centres and prison, at the age of 31 years the appellant had experienced difficulty in coping in normal society of such a degree that he had twice attempted to commit suicide and had implored his parole officer to return him to prison. The problem of his evident institutionalisation had been compounded, it was said, by the suspension on the last occasion that he was in custody of all prison leave programmes. Accordingly, counsel submitted, bearing in mind that the Parole Board still had the ability to exercise supervision for a period of two years, a sentence at the lower end of those appropriate for the offences before the court should be imposed.
[3]T8
I think that it is reasonable to infer that his Honour accepted that general approach, and erroneously fixed what he regarded as a substantial parole period of two-and-a-half years as part of an overall period of possible imprisonment of in excess of ten years. As I have indicated, he was clearly in error in doing so. I have also indicated from my remarks that I suggest there is considerable force in the submission that a significant opportunity for release on parole ought to have been accorded to the appellant.
In those circumstances I am of the view that this appeal should be allowed. I propose that the orders made in the court below be set aside. I would re-impose the individual sentences and the orders for cumulation made by his Honour with respect to them. With regard to the resultant total effective sentence of three years imposed for those offences, I would fix a non-parole period of two years.
WINNEKE, P.:
I agree.
ORMISTON, J.A.:
I also agree.
WINNEKE, P.:
The formal orders of the Court will be as follows:
1. The appeal is allowed.
2.The sentences imposed by the trial judge are set aside. In lieu we impose the same individual sentences that his Honour imposed, that is -
Count 1 - 12 months
Count 2 - two years
Count 3 - two years
Count 4 - 12 months.
3.We direct that the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3. The total effective sentence will therefore be three years' imprisonment. We direct that the appellant serve a minimum period of two years before becoming eligible for parole.
3.We declare that the appellant has served 459 days less the period which he has served pursuant to an order of the Magistrates' Court. We so declare that period pursuant to s.18 of the Sentencing Act and we direct that the declaration and its details be entered in the records of the Court.
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