R v Woolley
[2008] VSCA 44
•17 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 437 of 2007
| THE QUEEN |
| v. |
| JASON WOOLLEY |
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JUDGES: | MAXWELL P, NEAVE JA and COLDREY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 March 2008 | |
DATE OF JUDGMENT: | 17 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 44 | |
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Criminal Law – Sentencing – 19 y.o. appellant with no prior convictions pleaded guilty to one count of attempted armed robbery – Sentenced to 12 months’ immediate imprisonment with a non-parole period of six months – Crown concession that the sentencing judge erred by misapplying DPP v Candaza & Ors [2003] VSCA 91 – Appeal allowed – Re-sentenced to 12 months’ imprisonment, with the balance to be served by way of intensive correction in the community.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms R Shann (Solicitor) | Lewenberg & Lewenberg |
MAXWELL P:
I will invite Neave JA to deliver the first judgment.
NEAVE JA:
The appellant, Jason Woolley, pleaded guilty in the County Court to one count of attempted armed robbery. After hearing a plea in mitigation of sentence, a judge of that court sentenced him to 12 months' imprisonment with a non-parole period of six months. This is an appeal against that sentence.[1]
[1]On 5 March 2008, the appellant was granted leave to appeal against his sentence, pursuant to s 582 of the Crimes Act 1958. The hearing of the appeal was expedited because the earliest expected release date of the appellant was only a few months away, on 29 May 2008.
The facts
The circumstances of the offending were as follows. At around 8:30 pm on 25 March 2006, while the appellant and his co-offender, Nick Prerad, were driving around West Footscray, the two of them decided to rob a milk bar. When they arrived at the chosen milk bar, which was close to Mr Prerad’s previous residence in Footscray, both men got out of the car. The appellant picked up a sharp stick, which he concealed, before entering the milk bar slightly before Mr Prerad did so. Once inside, the appellant had a conversation with the proprietor regarding phone cards. Both men then left the store and waited for another customer to be served.
The proprietor saw the appellant and Mr Prerad waiting outside the store and became nervous, so he asked his wife to join him at the front counter. When the pair re-entered the store, Mr Prerad started a conversation with the proprietor regarding phone cards. At the same time, the appellant walked around the store, during which time he noticed a closed circuit camera. The appellant then joined Mr Prerad at the front counter. He reached into his right pocket, which was on the other side to the closed circuit camera, and pulled out the sharpened stick. He lunged at the proprietor with the stick, while both he and Mr Prerad made demands for money.
The appellant tried to open the register but he could not. Mr Prerad tried to grab the register, but it was bolted to the table. At around this time, the proprietor’s wife yelled ‘turn on the alarm’ and both men fled the store without stealing any money.
On 10 February 2007, almost a year later, Mr Prerad was arrested. In his record of interview, Mr Prerad admitted to being in the store at the relevant time, but said that Mr Woolley was responsible for the attempted armed robbery. Mr Prerad said that when the appellant had pulled out a large knife he had tried to stop the attempted robbery by pushing the appellant out of the store. After watching the CCTV footage, he agreed that he had actually left the shop first. The allegation that the appellant had a knife was not corroborated by the complainant and was not pursued by the Crown.
On 28 February 2007, the appellant attended the police station by appointment, where he was interviewed and charged in relation to this offence. In his record of interview, he admitted to participating in the attempted armed robbery and made full admissions to the police. In particular, he said that the pair of them had planned to rob the milk bar, that he had armed himself with the stick and that he had committed the offence in order to get money for drugs because at that time he was feeling very ill as a result of heroin withdrawal. He also falsely said that Mr Prerad had returned to the milk bar with a syringe after they had both left and threatened the milk bar staff with it.
Both the appellant and Mr Prerad pleaded guilty to the charge of attempted armed robbery at a relatively early stage.
The grounds of appeal
The original notice of application for leave to appeal contained three grounds. Grounds 1 and 2 related to the weight accorded to the appellant’s youth, lack of prior convictions, prospects for rehabilitation and guilty plea. Ground 3 alleged that the sentence was, in all of the circumstances, manifestly excessive. At the hearing of the application for leave to appeal, the Crown conceded that ground 3 was reasonably arguable.
After the hearing of the application for leave to appeal, three new grounds of appeal, each alleging specific error, were added. Essentially, these alleged that the learned sentencing judge erred by:
·misapplying a relevant authority, namely DPP v Candaza & Ors,[2] when he said that ‘only in exceptional cases can a discretion to sentence [for offences such as these] otherwise to an immediate term of imprisonment or youth training be considered’ (ground 4a);
·equating attempted armed robbery with armed robbery (ground 4b); and
·infringing the principle of parity (ground 4c).
[2][2003] VSCA 91 (‘Candaza’).
Ground 4a and the Crown concession
During the plea hearing, counsel for the appellant referred the learned sentencing judge to the decision of this Court in Candaza. His Honour then said that:
That was a case of a Director’s appeal against an inadequate sentence and Mr Justice Chernov says, among part,[sic] well, it was open for the sentencing judge in that case to impose a non-custodial sentence without conviction. He says to sentence someone without conviction is an exception and ordinarily charges of armed robbery require condign punishment by way of immediate custodial sentence.
That proposition was confirmed by the appellant’s counsel.
In his sentencing reasons his Honour returned to that issue and said that:
As I would understand the law only in exceptional cases can a discretion to sentence otherwise to an immediate term of imprisonment or youth training be considered.[3]
[3]Reasons [22].
In Candaza the Director appealed against the sentences imposed on three youthful offenders who had pleaded guilty to two counts of armed robbery. On the first count the sentencing judge had sentenced each respondent to a community based order for two years without conviction with a condition relating to community work, and on the second count each respondent had been sentenced to a fine of $3000 on the second count. The sole ground of the Director’s appeal was ‘that the non-conviction disposition was manifestly inadequate.’[4] It was submitted that ‘for a crime as serious as armed robbery a disposition other than a custodial sentence was unusual and a disposition without recording a conviction should only be available in rare and exceptional circumstances.’[5]
[4]Candaza [2003] VSCA 91, [4].
[5]Ibid [12].
Chernov JA, who delivered the main judgment, accepted the Director’s submission that it would be necessary to establish rare and exceptional circumstances to justify a sentencing disposition that did not result in a conviction for a crime as serious as armed robbery. The same view was expressed by Winneke ACJ and Phillips JA.
In this case it appears that his Honour erred in two respects. First he seems to have considered that Candaza required the establishment of rare and exceptional circumstances to justify a non-custodial disposition for an offender who had committed an armed robbery. In fact that proposition related to the failure to record a conviction. Secondly, in Candaza the offenders pleaded guilty to armed robbery, whereas the appellant in this case was charged with attempted armed robbery (a matter which is relied upon in ground 4b).
The Crown has conceded that ground 4a is made out. Having regard to the matters to which I have referred that concession was appropriate. For that reason I need not consider grounds 4b and 4c, though it will be necessary to consider the issue of parity in re-sentencing the appellant.
Re-sentencing the appellant
The offence of attempted armed robbery is a serious one for which the maximum sentence is 20 years' imprisonment. The offence was committed against the proprietors of a milk bar. As his Honour noted, proprietors of such businesses are vulnerable to offences of this kind. The victim impact statement provided by the milk bar proprietor, Mr The Hong Nguyen, says that he was very scared as a result of the incident and that it also frightened his family. The sentence which we impose must denounce the criminal behaviour of the appellant and deter him and others from committing similar offences.
As mitigating factors, it is necessary to give weight to the fact that the appellant pleaded guilty at an early stage and that the psychological report provided by Mr Patrick Newton says that he is remorseful. The appellant is a youthful offender who was 19 when he committed the offence and is now 22 years old. He had no prior convictions and was not charged with, or convicted of, any offences in the period of approximately 21 months between commission of this offence and the time that he was sentenced by his Honour. When the offence was committed, the appellant had been on a buprenorphine program in order to wean him from heroin, but had ceased taking that drug and recommenced heroin use. His parents, with whom he lived, were supportive, but they were overseas at the time that he committed the offences. His Honour found that the offending was motivated by the need to obtain money to buy heroin.
The learned sentencing judge referred to the other personal circumstances of the appellant as follows:
Woolley, your background is set out essentially in the report of Mr Patrick Newton, psychologist dated 24 February 2007. Many of the matters in that report were also addressed by a character reference being tendered in the hand of Jean Payne, and a letter from the Smorgan Heights Primary School principal, George Kandidis. … Your parents had been present during the hearing of the plea and again this morning, and I readily accept that they are well and truly prepared to give you such support as you need, indeed as they have given you throughout your life.
Essentially as I would understand it, you have limited intellect but not intellectually disabled. You have had troubles at school which meant that you experienced ostracism and harassment and not surprisingly you began to play the role that you were forced to play, that is the role of a rebel, class clown, and I suspect began to mix with young people who have similar problems as yourself.
At about the age of 13 you began experimenting with cannabis. At the age of 18 you began using heroin. Mr Newton reported that you suffered significant psychological impact as a result of drug use and your thoughts are often left clouded. You experienced emotional problems whilst using. You have been treated by your local GP who has prescribed antidepressants. Those antidepressant (sic) brought on side effects which caused you not to pursue the pharmaceutical treatment.
Mr Newton reported that since your arrest you have started to address the problems of both heroin and cannabis. You have had limited insight to your problems. Mr Newton is of the view that you probably have some depressive aspects of your make-up at this stage. There is also the view that you remain psychological (sic) immature for your age. He reported that you relied excessively on your peers for self-esteem and readily follow their lead, and you are attracted to others to manifest overt signs of dominance and self-confidence. Whether that be the case with Mr Prerad it is hard to assess. He drove the car, (indistinct) the milk bar, but you are the person who as I understand it on the Crown case entered the shop armed, you were the person who tried to rifle the till after lunging at the shopkeeper with a stick.
Mr Newton is of the view that your rehabilitation of course depends upon your developing insight and ability to cope with alcohol and drug use. More particularly in your case drug abuse. And to receive some treatment to address your mental health problems such as depression and anxiety. He also suggested that structured training and literacy and general adaptive living skills might be of assistance to you. However, as I have noted during the course of the plea, hopefully with increasing age and maturity will come to you and some of the issues that Mr Newton has referred to may well settle down.
The view ultimately I hold is that your prospects of rehabilitation are perhaps quite good. Importantly, if nothing else, because you have got support of two loving parents.[6]
[6]Reasons [9]-[14]
I note also that Mr Newton said that the appellant had ‘received no counselling or other psychological assistance with his recovery’ and that:
He would benefit from the provision of further treatment to allow him to consolidate the changes he has reportedly made in his lifestyle and to enable him to continue to develop his insight into such matters as relapse-prevention strategies, harm minimisation and behavioural management skills. Given the relatively early stage of addressing so severe a substance-related problem and considering the role played by his drug use in his offending, it would be vital to provide close supervision for the medium term to ensure that should any lapse or relapse on Mr Woolley’s part occur it would be speedily detected so that appropriate steps could be taken to address it.
For the avoidance of any of (sic) ambiguity, I would consider ‘non-directive’, ‘unstructured’ or ‘self-initiated’ treatment models to have little realistic prospect of succeeding in Mr Woolley’s case. Rather, it is my opinion that a structured, multifaceted and relatively intensive approach to treatment will be required to address his difficulties.
Mr Newton also thought that Mr Woolley would benefit from participation in treatment to address his anxiety and depression, and from structured training in literacy and general adaptive living skills. He also said that the appellant ought also to undergo a comprehensive cognitive assessment.
Finally, in re-sentencing the appellant it is also necessary to take account of the principle of parity. The appellant's co-offender, Mr Prerad, was sentenced to 14 months imprisonment with a non-parole period of seven months for these offences.[7] Although it was Mr Woolley who threatened the victims with a sharpened stick, in other respects both offenders were equally culpable. However, unlike Mr Woolley, Mr Prerad had six prior convictions in the Children's Court and had also been sentenced to an intensive correction order and imprisonment for subsequent offences including assault, being armed with a weapon, car theft and shoplifting.[8]
[7]His Honour ordered that five months of a term of imprisonment imposed on Mr Prerad in relation to other offences was to be served concurrently with the 14 months term imposed for these offences, amounting to a a total effective sentence of 19 months.
[8]Reasons [1]-[3].
Having regard to the seriousness of the offence and the mitigating factors which I have set out above, I would impose a sentence of 12 months' imprisonment on Mr Woolley. That is the same sentence that was imposed by his Honour.
On the hearing of the appeal the Court discussed with counsel the appropriateness of ordering that the balance of the appellant's sentence be served by way of intensive correction in the community. The Court considered that such an order could enhance the appellant's prospects of rehabilitation by enabling him to participate in a structured program which addresses the drug, literacy and other
problems which have contributed to his offending.
Before an intensive correction order can be imposed, the Court must receive a pre-sentence report and the appellant must agree to comply with that order.[9] The Court adjourned the matter in order to obtain a pre-sentence report.
[9]Sentencing Act 1991, s 19.
That report said that Mr Woolley was considered suitable for an intensive correction order and recommended the imposition of the core conditions contained in s 20 of the Sentencing Act1991. It also said that:
Mr Woolley reported a history of heroin and cannabis use and reported that he is currently on 10ml of Methadone. It is anticipated that Mr Woolley would be referred for assessment for drug counselling under the core conditions. Mr Woolley appeared to have little insight into his drug use and the impact this has on him.
In addition, it is anticipated that Mr Woolley would be referred for assessment for programs to reduce re-offending under the core conditions.
The requirements of the order have been explained to Mr Woolley, who has consented to it being made. Taking account of pre-sentence detention, Mr Woolley has already served 110 days of the 12-months sentence. In these circumstances, and given the other matters referred to above, I would order that the balance of the sentence remaining, that is, 256 days after the handing down of this judgment, be served by way of intensive correction in the community.
MAXWELL P:
I agree.
COLDREY AJA:
I also agree.
MAXWELL P:
I now have the form signed by Mr Woolley; it is also signed by me; the amendment to refer to the Sunshine Magistrates' Court has been made. The orders of the Court are as follows:
1. Appeal allowed.
2.The sentence imposed in the court below is quashed and in lieu thereof the appellant is sentenced to 12 months' imprisonment.
3.It is declared that the period of 110 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.
4.The balance of the sentence, namely, 256 days, is to be served by way of intensive correction in the community.
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