R v Wootton
[2002] VSCA 165
•18 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 42 of 2002
| THE QUEEN |
| v. |
| SCOTT MICHAEL WOOTTON |
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JUDGES: | PHILLIPS and CALLAWAY, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 October 2002 | |
DATE OF JUDGMENT: | 18 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 165 | |
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Criminal law – Sentencing – Armed robbery and theft of a motor vehicle – Whether total effective sentence of 3 years with non-parole period of 18 months manifestly excessive – Whether licence disqualification for 2 years from the date of sentence manifestly excessive – Parity in sentencing – Relevance of addiction to heroin – Sentencing Act 1991, s.89.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs. C. Quin | Kay Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. L. Carter | Victoria Legal Aid |
PHILLIPS, J.A.:
I agree in the judgment of O’Bryan, A.J.A.
CALLAWAY, J.A.:
I agree with O'Bryan, A.J.A. subject to a minor qualification which does not affect the outcome of the case or the orders to be made and subject to a caveat which probably does no more than express what is implicit in his Honour's reasons.
The qualification is that, in rejecting the ground touching parity, I attach less importance to Hudson's care of two young children. The learned judge did not include that among the reasons he gave for Hudson's more lenient sentence and his observations in the course of the plea suggest that he was alive both to the authorities dealing with exceptional hardship to dependants and to cautionary remarks such as those to be found in R. v. Harkness and Ors[1]. I express no opinion as to whether the position of the children in this case may have constituted exceptional hardship and I say nothing about cases such as R. v. Carmody[2].
[1][2001] VSCA 87 at [58]-[59].
[2](1998) 100 A.Crim.R. 41.
The caveat is this: this is a simple case in which there is no need to enunciate any general principle. It is conceded that the judge took into account the appellant's drug addiction. The proposition cannot be sustained that he was bound, in the circumstances of this case, to give it greater weight. The case does not raise for consideration the circumstances in which, or the extent to which, intoxication or a gambling addiction may or may not be taken into account in sentencing. Similarly, no question arises as to the best way of imposing a licence disqualification in all cases. The disqualification proposed by O'Bryan, A.J.A. is just and appropriate in
this case.[3] Again, the submission summarized in [21] was inapposite here. Rightly or wrongly, similar submissions have sometimes been entertained.[4]
O'BRYAN, A.J.A.:
[3]It will sometimes be desirable to fix an ambulatory period of disqualification, as was done in R. v. Tran [2002] VSCA 52 at [38]-[40], [41] and [42]. In that case, unlike the present, the protection of the community demanded that the offender remain disqualified for a time after her release, even if she was not released on parole and had to serve her entire sentence and the order this Court made reduced the period of disqualification fixed below. The respondent conceded that in this case we should not make an order that might increase that period.
[4]See also R. v. Cardona [1998] 2 V.R. 126 at 134 lines 13-15.
The appellant who is now 24 years of age pleaded guilty in the County Court on 18 February 2002 to one count of armed robbery and one count of theft of a motor vehicle. On the same presentment, two co-offenders Katie Dawn Hudson and Ruben Anandan pleaded guilty to the same counts. Anandan also pleaded guilty to another count of armed robbery (the first count) which was committed four days before the counts to which the appellant, Hudson and Anandan pleaded guilty.
The appellant admitted seven previous court appearances. One was in the Children's Court and three were dealt with without conviction. The others resulted in convictions for theft and related offences including, on one occasion, a sentence of four months' imprisonment to be served by way of intensive correction. Hudson admitted three court appearances, one of which was in the Children's Court and another of which had been dealt with without conviction. In March 2001 she had been convicted of theft and sentenced to be released on a community based order. Anandan, who was aged 20 when he was convicted, had a long list of prior convictions for theft, assault and robbery. The list included seven charges of armed robbery or attempted armed robbery.
Following a plea the appellant was sentenced to be imprisoned for six months for theft of the motor vehicle and three years for armed robbery. A non-parole period of 18 months was fixed. On the theft count the appellant’s driver licence was cancelled and he was disqualified from holding a licence for two years. A
declaration was made that 203 days in pre-sentence detention had already been served. Hudson was sentenced to be imprisoned for six months for theft of the motor vehicle and two years for armed robbery. The court ordered that the term of six months was to be served by way of an intensive correction order and that the term of two years was to be wholly suspended for two years. On the theft count Hudson’s driver licence was cancelled and she was disqualified from holding a licence for two years. Anandan was sentenced to be imprisoned for three years on the first count of armed robbery which did not involve the appellant or Hudson. For theft of the motor vehicle he was sentenced to be imprisoned for six months and for the count of armed robbery which involved the appellant and Hudson he was sentenced to be imprisoned for four -and-a-half years. On the theft count Anandan’s driver licence was cancelled and he was disqualified from holding a driving licence for two years. By ordering cumulation of one year, the judge determined upon a total effective sentence of five-and-a-half years and fixed a non-parole period of three years. A declaration was made that 146 days in pre-sentence detention had already been served.
Hudson and Anandan did not appeal their sentences. Nevertheless, it is necessary to detail their sentences because the appellant’s grounds of appeal raise issues about their sentences.
The appellant gave notice of appeal which, following amendment by order of the Registrar, raised four grounds.
1. The learned sentencing judge erred in the application of the parity principle.
2.The learned sentencing judge erred in giving insufficient weight to the impact of the applicant’s heroin addiction on his moral culpability.
3.In all the circumstances the head sentence and non-parole term are manifestly excessive.
4.The period of driver licence disqualification (two years):-
(a)gives insufficient weight to the applicant’s prospects of, and need for, rehabilitation;
(b)is manifestly excessive.
Leave to appeal to this Court was granted by Phillips, J.A. on 19 June 2002.
Background
The appellant began smoking cannabis at the age of 15. At age 17 he was a daily user and at age 18 he was using amphetamines and heroin. At the time of offending, on 5 August 2001, he was drug addicted despite attempts to become drug free. In August 2001 the appellant was living with Hudson in a common law husband and wife relationship and was the father of a young child of the relationship. Hudson also was addicted to heroin and had made efforts to overcome her drug problem and improve her lifestyle. When she was sentenced Hudson had a second child of her union with the appellant who was five weeks of age. She must have been pregnant when these offences were committed.
The offending
On 4 August 2001, the appellant together with Hudson, Anandan and another younger person stole a motor vehicle in Melbourne for the purpose of using it in an armed robbery. They also stole knives and masks from a supermarket before driving to a 7-Eleven convenience store. They did not enter the store because they recognised the shopkeeper. They proceeded to another 7-Eleven store in Canterbury. Hudson was left in the motor vehicle behind the driving wheel with the engine running to effect a quick getaway. Anandan and the fourth person entered the store carrying the stolen knives. The applicant entered the store unarmed. Together they threatened the proprietor and stole money and cigarettes. At one stage a threat to kill the proprietor was made if he did not open the till.
When the offenders left the store Hudson drove the vehicle at a fast speed. A passing motorist had observed the robbery and notified the police. A chase followed until a police vehicle was able to stop the vehicle and apprehend three of the offenders. The next day the appellant was apprehended.
The plea
During the plea counsel for the appellant relied upon a number of mitigatory matters: remorse, the plea of guilty, his drug addiction, his being unarmed and prospects of rehabilitation. The judge accepted that remorse and the plea of guilty entitled the appellant to a discount on the sentence that would have been appropriate. He noted that the report of a psychologist spoke of the appellant’s failed efforts to come to terms with his drug addiction and added that the circumstance of drug addiction provided no excuse for committing an armed robbery. That observation is clearly correct; a craving for money to feed an addiction is only explanatory of the offence. The judge was not impressed by the argument that the appellant’s role in the armed robbery was less significant because he was unarmed. I agree. The appellant actively participated in the theft of property and his presence in the store with two other armed men would have intimidated the shopkeeper.
In imposing different sentences upon the three persons before the court the judge said:
“It is however appropriate to distinguish between your respective cases by reason of your different respective criminal backgrounds, and in the case of Katie Dawn Hudson, her age and my acceptance of the positive evidence led of her efforts at rehabilitation, and in her case her lack of serious convictions. I believe this justifies a significantly different sentence that I propose in her case.”
Appeal grounds
Ground 1 raises a question whether the principle of parity in sentencing required the judge to impose a lesser sentence on the appellant in terms of its immediate custodial effect because Hudson was not required to serve an immediate custodial sentence.
Mr. Carter for the appellant submitted that error is demonstrated in the magnitude of the disparity in the head sentence imposed on the appellant (three years), of which he is required to serve a minimum period of 18 months in custody, and the head sentence imposed on Hudson (two years), wholly suspended. He argued that his client and Hudson played similar roles, they were both young offenders, neither had been involved in an armed robbery and both committed the offence to satisfy a craving for heroin.
I do not accept the argument that parity of sentencing required the judge to have structured the appellant’s sentence in a way that reduced the difference in their sentences. I consider that Hudson’s younger age, her lesser role as the driver of the get-away car, her attempt to rehabilitate herself from her drug addiction and her circumstances with two very young children, one being only five weeks of age at the time of sentence justified the differences between the sentences. The principle of parity is founded upon the notion that disparity entitles a prisoner to a sense of grievance arising from the extent of the disparity between his or her sentence and the sentence on a co-offender. In the present case the disparity was explained by the judge and a reasonable person would not share the appellant’s sense of injustice. The circumstances of Hudson cried out for a merciful sentence, not gender biased, but on account of the significant differences between the appellant’s circumstances and her circumstances. I agree with Ms Quin that the approach taken by the judge was justified and does not reveal error in terms of parity in sentencing.
In relation to ground 2 I am of the opinion that the judge had to give little weight to the appellant’s drug addiction in the circumstances. Drug addiction is self-inflicted and does not excuse serious criminal activity such as has been demonstrated here. The courts cannot condone a crime of violence such as armed robbery because the offender is drug-addicted any more than it could because the offender is craving to feed a gambling addiction.
The judge recognised the drug addiction problem but did not have to give it any more weight than he did in constructing an appropriate sentence.
Ground 3 did not permit lengthy argument. Mr Carter endeavoured to rely upon the sentence imposed upon Anandan for the first count of armed robbery as pointing to manifest excess in the sentence imposed upon the appellant. In my opinion, this is an inappropriate way to consider a manifest excess argument. The head sentence imposed on the appellant for armed robbery in the circumstances was within range, in my opinion. The non-parole period was appropriate in relation to the head sentence. Ground 3 fails.
There remains ground 4. The cancellation and disqualification orders made in the case of the appellant, Hudson and Anandan were identical but, as will be demonstrated shortly, are different in operation. The orders were made pursuant to s.89(4) of the Sentencing Act 1991. Sub-section (4)(a)(i), which was applicable here, makes it mandatory, if a court finds a person guilty and convicts a person of stealing or attempting to steal a motor vehicle and if the offender holds a driver licence, to cancel that licence and also to disqualify him or her from obtaining one for such time as it thinks fit. The penalty of cancellation and disqualification is not related to the use made of the stolen motor vehicle for it applies to both stealing and attempted stealing. The only discretion given to the Court is in fixing the disqualification period.
The appellant, Hudson and Anandan each held a current driver licence which was cancelled. The same disqualification period (2 years) was fixed and was effective from the date of the sentence. But the consequences of the disqualification order operated differently on each offender. In Hudson’s case, because her sentence was wholly suspended and she was released from custody on the day the sentence was pronounced, the period of disqualification will be operative for two years. She did not appeal the sentence. In Anandan’s case, his minimum term (3 years), less 146 days in pre-sentence detention means that, if he is released on parole after two years and seven months, he will be entitled to apply for a driver licence immediately upon release and will suffer no penalty from disqualification. In the appellant’s case his minimum term (18 months), less 203 days in pre-sentence detention, means that, if he is released on parole after about 11 months, he will not be entitled to apply for a driver licence for a further period of about 13 months after release. This result is produced because the disqualification period runs from the date of the sentence, 25 February 2002, and does not have regard to the pre-sentence detention period. Had there been no pre-sentence detention period and the appellant were released at the earliest date, 18 months after the sentence was imposed, the disqualification penalty would have been six months.
The Court does not know whether the judge intended this result for he gave no reasons for choosing the two year disqualification period. No submissions were made to the judge about the disqualification period presumably because no-one foresaw the effects the order would have on the offenders. It seems unlikely to me that the judge would have intended to produce the different results I have indicated. A disqualification period is a penalty which only bites when the offender is released.
Mr Carter submitted that the period of disqualification in the appellant’s case of 13 months, assuming that he is released at the end of the minimum term, is manifestly excessive and will hinder his prospects of and need for rehabilitation which is likely to require a driver licence for employment purposes.
A similar problem arose in R. v. Lefebure[5] in this Court. In the leading judgment Tadgell, J.A. concluded that the judge’s sentencing discretion went astray and the Court set aside the disqualification order. A different period of disqualification was substituted. The same problem arose recently in R. v. Birnie[6].
[5](2000) 112 A.Crim.R. 41.
[6][2002] VSCA 155 at [30] to [31].
Mr Carter’s principal submission was that there should be no continuing disqualification beyond the minimum term because of the effect disqualification will have on the appellant’s prospects of gaining employment. I disagree with his submission. The legislature must have intended that disqualification beyond a term of custody for a reasonable time should be a real penalty in most cases. As Ormiston, J.A. said in Birnie: “Ordinarily it will only be on his release that the disqualification will ‘come home’ to him.”
In the circumstances of this case I am of the opinion that in the judge’s failing to advert to the consequences a sentencing error occurred in relation to the period of disqualification. If the judge intended to disqualify the appellant for six months from the date of his earliest release from custody, he did not achieve that result. In my opinion, such a result is justified in all the circumstances. I propose to the Court that ground 4 of the appeal be upheld and for the order made pursuant to s.89(4) there be substituted the following: order that the appellant’s driver licence be cancelled and the appellant be disqualified from applying for a further licence until a date which is two years less 203 days from the date of sentencing in the County Court, namely 25 February 2002. The period of disqualification will then become 527 days. Should the appellant be released at the expiration of the minimum term, allowing for pre-sentence detention the disqualification period will become 183 days. Otherwise, I consider the head sentences and the non-parole period should be confirmed.
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