R v Wilson
[2003] VSCA 89
•26 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 157 of 2003
| THE QUEEN |
| v. |
| ANDREW RODNEY WILSON |
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JUDGES: | WINNEKE, A.C.J., CHERNOV, J.A. and WARREN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 June 2003 | |
DATE OF JUDGMENT: | 26 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 89 | |
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Criminal law – One count of attempted armed robbery and three counts of armed robbery against school children – Youthful offender without prior convictions – Strong mitigating factors – Sentence of three years with minimum term of three months’ imprisonment reduced to two years and six months wholly suspended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Mr P.R.C. Southey | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G.J.C. Silbert | Anthony Isaacs |
WINNEKE, A.C.J.:
On 28 May of this year the applicant, Andrew Wilson, who is now aged 19 years, pleaded guilty in the County Court to one count of attempted armed robbery and three counts of armed robbery. On 29 May he was sentenced as follows:
Count 1 - attempted armed robbery - 12 months;
Counts 2 and 3 – armed robbery - 2 years on each;
Count 4 - armed robbery - 12 months.
His Honour directed that the sentence of 12 months on count 4 be served cumulatively upon the sentences imposed on counts 1, 2 and 3. The total effective sentence was therefore three years' imprisonment. His Honour directed that the applicant serve three months of the sentence before becoming eligible for parole. He declared a period of one day’s pre-sentence detention which, it is agreed, was in error as he had in fact been in custody for two days.
The applicant was aged 18 years at the time when these offences occurred. The offence described by count 4 was alleged to have occurred “between 1 April 2002 and 30 September 2002”. It came to light only because the applicant confessed to having committed it when being interviewed by the police after his arrest on 31 October 2002. The offences described in counts 1, 2 and 3 arose out of the same set of events which occurred on the one occasion, namely on 31 May 2002.
All the crimes were of the same character. Each involved young school children as its target. In each case the applicant had two accomplices. They travelled by car (either bearing stolen number plates or the number plates being hidden) and they drove from Richmond, where the applicant lived, to schools in eastern suburbs at or around the time when the children were leaving their school for the day. Thus, the offences comprising counts 1 to 3 were committed at or near a bus stop outside a college in Park Orchards. Three children with their school-bags or knapsacks containing lap-top computers were descended upon by the applicant and his colleagues, one of whom was brandishing a steel pole. Two of the children fled in fear leaving their bags behind, whilst the third disobeyed the command of the robbers by fleeing with his bag - thus depriving the assailants of the booty they were seeking. Thereafter the applicant and his accomplices drove to Richmond where the applicant returned to his hostel accommodation. Some time later he received $150 for his part in the escapade. Needless to say, each of the victims of this escapade was extremely frightened by the experience. Each was about 13 years of age. The two who gave up their personal belongings (including the computers valued at about $3,000 each) did so because of the fear excited in them by the robbers.
The robbery described in count 4 occurred in similar vein at a time which appears to have been a little earlier than the ones described in counts 1 to 3. As I have said, there is no independent evidence of this crime because its occurrence was only revealed in the applicant’s record of interview. On this occasion they drove to a school near Reservoir where the applicant’s colleagues, wielding what was described as a “Samurai sword”, accosted another student and deprived him of his lap-top computer. On this occasion, the applicant said, he remained in the car. The sentencing judge took the view that he did so not through unwillingness to participate but due to fear of being caught. In any event, it would seem that the applicant did not share in the proceeds.
There can be no doubt that the crimes were cowardly in their features and extremely frightening for the victims. The applicant’s participation in them was largely driven by the aimless circumstances in which he was then existing. The very experienced sentencing judge described those circumstances in this way:
“ At the time of these offences, you were 18. You are now but 19 and nine months. You have no prior convictions. Your parents separated when you were something between ten and 13 years of age but so far as appears, you were not unduly affected by that event. It does seem clear enough from the psychological report tendered on your behalf that you were or became an undisciplined, disruptive and irresponsible young man.
Your education was interrupted by frequent truancy and changes of school which seemed in part to have been brought about by your behaviour. By the time you were 13 you were drinking alcohol and smoking cannabis. By the time you were 17 you were required by each of your parents to leave their respective households.
Thereafter, you lived a largely aimless life. I do not in that context overlook the report of Collingwood College but I have reservations concerning its content. Ultimately, in February 2002, you were found accommodation by the Society of St Vincent De Paul. That accommodation was in Fraser Street, Richmond. While living there you met your co-offenders. In your statement you told the police ‘I’ve been living in Fraser Street since January 2002. Many people visit the flat and there seems to be people there all the time. It seems to be the local hang out joint. Two of the people who visit the flat are Ollie and Greg.’ Ollie and Greg are two of your co-offenders.
According to Miss Matthews, the psychologist who examined you, for the purposes of these proceedings, you told her, ‘I thought a lot of guys were brothers to me. I felt they’d do anything for me and I would do anything for them. At any one time there could be 15 to 20 people at my place, smoking bongs, watching TV or playing cards. These guys influenced me a lot to what I wanted to be. I wanted to be a gangster like all those rappers and stuff.’
Miss Matthews says, in what is a helpful report, ‘Given Mr Wilson’s history of learning difficulties and being bullied, eroding self-esteem and the circumstances of his residence and leaving home, it was almost predictable that he would be easily led by stronger personalities.’
It is the psychologist’s appraisal that Mr Wilson’s more recent attempts to re-establish a relationship with his father and his own acknowledgment of problems, for example, being led by peers, indicate that he is likely to progress, and therefore there can be a reasonable expectation that he will not re-offend.
Following these offences you obtained employment as a labourer. That employment terminated through no fault of yours but for lack of work and you obtained a good reference from your employer. You have now again obtained such employment in a similar capacity. The commencement is to depend upon the outcome of these proceedings.
Your father has allowed you back into his home on condition that you have no contact with your erstwhile companions. He says that condition is being complied with. He says that you have a new network of friends and that you now show a much stronger commitment to work in general and your employment in particular. … “
The judge took a favourable view of the applicant’s future prospects. The applicant appears to have been jolted back to reality by the events and his apprehension, and by the time of sentence he had engaged in gainful employment and had reclaimed the confidence and shelter of his father, but on the basis that he divorce himself from the friends and lifestyle associated with his former existence. The judge accepted that the applicant had demonstrated remorse for his crime by making an early plea of guilty and by writing an apology to his victims. Furthermore, he had agreed to give evidence at the committal and trial of the co-offenders – a matter which, as the judge said, materially reduced the sentence which otherwise would have been imposed. It was because of these factors, and the youth of the applicant, that his Honour set what appears to be the very low minimum term which he did. However, it was his Honour’s view that the applicant’s crimes had to be visited by sentences of imprisonment actually served and, regrettably, in an adult prison. Having regard to the prospects of rehabilitation, his Honour said:
“ Miss Matthews states that you are very remorseful for your actions and deeply ashamed. The informant, Detective Senior Constable Stewart, says that when he spoke to you you seemed remorseful. You have shown remorse for your conduct by writing to your victims a letter of apology and by your early plea of guilty.
I accept that that emotion is genuine. Your prospect of rehabilitation is significant as evidenced not only by your remorse but by your obtaining of employment and breaking with your erstwhile companions.
In addition, you have agreed to give evidence in accordance with your statement, Exhibit 1, at the committal and trial of your co-offenders, a matter that has caused a significant reduction in the sentence I would have otherwise imposed.
Finally, you are still very young. A matter which makes the prospect of your rehabilitation of more than usual weight and significance.
None of those matters is sufficient to save you from a custodial sentence and further one that must be served.
The armed robbery of children by a group of young men is far too serious a crime to be lightly dealt with, and while the need to deter you from further offending may not be great there is a very definite need to deter others from following your example, particularly when the carrying of expensive equipment by children is becoming common.
It is regrettable that those administering youth training centres either do not or cannot protect trainees who give evidence against co-offenders, from attack and abuse by their peers. That fact makes impracticable what might otherwise be an appropriate disposition in your case. As it is prison is the only choice and that, notwithstanding the content of Miss Matthews’ report.
I have taken into account the two alternatives of parole and suspended imprisonment. It is in my opinion likely to be of far more benefit to you to have a long period of parole than a long period of suspension. The Parole Board can and no doubt will assist you in the process of rehabilitation. Mere suspension affords no such help. … “
The applicant seeks leave to appeal against the sentences on the grounds that they are manifestly excessive, that it is a sentence of “disproportion” and one which effectively deprived the applicant of a right to appeal. The last ground is now inconsequential because, when earlier this month the applicant applied for bail, the Court said it would deal with the application as a matter of priority. As it is, the applicant has now served approximately one month of the minimum period of three months.
Mr Silbert, who has appeared for the applicant, has submitted that the structure of the sentence is such as to invite scrutiny. There can be no doubt that the sentence fashioned by the judge is unusually structured. His reasons for that appear to be that the offences were too serious to warrant a non-custodial sentence and that it was necessary to impose a short term by way of minimum sentence for the purpose of deterring others. The Director of Public Prosecutions, Mr Coghlan, with his customary frankness, has doubted whether such a sentence can ever constitute general deterrence of the type intended by his Honour. Furthermore, he has submitted that the total cumulation of the sentence imposed on count 4 was “harsh”, when it was the applicant’s desire to fully explain to the police his past actions which had led to the revelation of his conduct. In addition, the Director has submitted that adult gaol is not really appropriate for a person in the position of this applicant. It is agreed that the applicant falls to be re-sentenced because of the concession that the cumulation of count 4 in particular was unwarranted – a submission with which, I might say, I agree. I would confirm the sentences which the judge imposed on counts 1, 2 and 3. The offences were serious examples of their kind and were premeditated and, as I said, cowardly. Any sentence less than those his Honour imposed would be inappropriate. However, I would quash the sentence of twelve months imposed on count 4 and substitute for it a sentence of six months' imprisonment. I would cumulate six months of the sentence imposed on count 3 upon the sentence of two years imposed on count 2. The total effective sentence would therefore be two years and six months. The applicant has now served 30 days of the sentence which his Honour imposed. Having regard to the fact that his Honour regarded the applicant as a good prospect for reclamation, I would be prepared to suspend the balance of the sentence for a period of two years six months. If the other members of this Court agree, the effect is that the applicant will be entitled to immediate release.
CHERNOV, J.A.:
I agree.
WARREN, A.J.A.:
I agree.
WINNEKE, A.C.J.:
The orders of the Court will be as follows:
1. The application for leave to appeal against sentence is allowed.
2.The appeal is treated as having been instituted and heard instanter and it too is allowed.
3.The sentences imposed by the trial judge on counts 1, 2 and 3 are confirmed.
4.The sentence of 12 months imposed by the trial judge on count 4 is quashed; in lieu thereof this Court imposes a sentence of 6 months.
5.We direct that 6 months of the sentence on count 3 be served cumulatively upon the sentence of 2 years imposed on count 2.
6.The total effective sentence will therefore be one of 2 years and 6 months.
7.Pursuant to s.27 of the Sentencing Act the Court suspends the whole of the sentence imposed, save for 30 days which the applicant has already served, for a period of 2 years 6 months.
8.Pursuant to s.18 of the Sentencing Act we declare that the applicant has served 30 days in custody pursuant to the sentences imposed and we direct that the fact of this declaration and its details be entered in the records of the Court.
Mr Wilson, you will understand that the fact that we have suspended the remainder of the sentence which has been imposed upon you, entitling you to your freedom as from today, cannot be regarded by you as the end of the matter. The suspension will operate for a period of two years and six months from today. That will be the operational period, and it means that for the whole of the period of two years and six months from today you are, as it were, still under the scrutiny of the Court in this sense – that if within that period of time you commit any offence punishable by imprisonment, either in this State or elsewhere, the Court will have the opportunity of bringing you back and making you serve in all probability the remainder of the sentence which has been suspended. Do you understand that?
APPLICANT: Yes, sir.
WINNEKE, A.C.J.: It is going to be up to you to make sure you behave yourself, keep out of bad company, keep off cannabis and drugs, and do the right thing by your father. Is that understood?
APPLICANT: Yes, sir.
WINNEKE, A.C.J..: We are relying on you, Mr Wilson, to abide by your undertaking.
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