Riley v Tasmania

[2021] TASCCA 8

[2021] TASCCA 8

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Riley v Tasmania [2021] TASCCA 8
PARTIES:	RILEY, Bradley Mark
v
STATE OF TASMANIA
FILE NO:	1870/2021
DELIVERED ON:	8 October 2021
DELIVERED AT:	Hobart
HEARING DATE:	5 October 2021
JUDGMENT OF:	Pearce J, Geason J, Marshall AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Head sentence of two years with eligibility for parole after one year – One counts of unlawfully setting fire to property and related summary offences including aggravated burglary and motor vehicle stealing – Not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	N Pearce-Rasmussen
Respondent:	H Denton, F Radin

Solicitors:

Appellant:	Tasmanian Aboriginal Legal Service
Respondent:	Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 8
Number of paragraphs:	24

Serial No 8/2021

File No 1870/2021

BRADLEY MARK RILEY v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL PEARCE J GEASON J MARSHALL AJ 8 October 2021
Order of the Court
Appeal dismissed.

Serial No 8/2021

File No 1870/2021

BRADLEY MARK RILEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
8 October 2021

1             On 23 July 2021 the appellant was sentenced by Martin AJ to imprisonment for two years from 22 June 2021, with eligibility for parole after one year. The appellant challenges the sentence on the ground that it is manifestly excessive. Following the conclusion of submissions I joined in an order dismissing the appeal. These are my reasons.

2             The appellant pleaded guilty to one count of unlawfully setting fire to property. In addition, he was sentenced on his plea of guilty to five summary charges: one count of aggravated burglary, one count of stealing, two counts of motor vehicle stealing and one count of injuring property.

3             During the late afternoon or early evening of 23 January 2021 the appellant, with two females, walked to a house in suburban Launceston. The house was unattended because the residents were away for the weekend. The offenders entered through a window after cutting the fly screen. Once inside, over the course of about two hours, they ransacked the home, opening drawers and cupboards and leaving property strewn on the floor and beds. The television was smashed. They stole a diving watch, a bracelet, a ring, a jewellery box, a mobile phone and two tablets, worth in total about $1000. They also stole the keys to a Mitsubishi 4WD Triton utility which was parked in the carport. The Triton was parked behind, and blocked in by, a Holden Commodore. The offenders used a hammer taken from inside the residence to smash the driver's window of the Commodore. Then, after putting that car in neutral gear, the appellant used the Triton, for which he had the keys, to push the Commodore down the driveway onto the street, before driving away with his associates. On the following day the stolen Mitsubishi Triton was found in bushland behind the Ravenswood Primary School, completely destroyed by fire. It was worth about $35,000. The injure property charge concerned the damage to the Commodore. The damage was not detailed to the sentencing judge, but the window was smashed and it was pushed out of the driveway by the other vehicle.

4             The appellant was arrested on 27 January and interviewed by the police. He denied any involvement in either breaking into the house but he admitted that he had burnt the Triton. He falsely claimed to have come across it in the bush. He entered an early plea of guilty to the indictable charge and asked the sentencing judge to deal with his pleas of guilty to the summary charges.

5             At the time of the crimes the appellant was about to turn 22. His personal circumstances were outlined to the sentencing judge. He is an aboriginal man. He lived with his mother and two sisters until they moved interstate when he was an adolescent. He then lived with his father but his home environment was unstable and characterised by conflict. He was exposed to criminal and anti-social attitudes and behaviours. His education was disrupted by behavioural difficulties. He began to use cannabis at age 13 and was quickly introduced to methylamphetamine and thereafter became a heavy user of illicit substances.

6             The appellant's record of offending was relevant to sentence. It began in 2013 when he was 14. By October 2018 he had been sentenced for, on my count, 5 counts of burglary, 12 counts of aggravated burglary, 23 counts of motor vehicle stealing or attempted motor vehicle stealing, 20 counts of trespass, 10 counts of common assault, 2 counts of destroy property and 51 counts of stealing or attempted stealing, as well as other driving and bail offences. He was not convicted of some of the offences committed when he was very young. He was made subject to progressively more

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serious sentences, as a youth and then as an adult, commencing with deferrals of sentence, suspended detention, actual detention, suspended imprisonment and then actual imprisonment, none of which seemed to deter him. On 15 October 2019 he was sentenced to imprisonment for five months from 12 May 2019 for unlawfully setting fire to property. On that occasion he set fire to window furnishings inside a unit and the damage was less than $1000. In late 2019 he was sentenced by a magistrate to imprisonment for a year for evading police, 2 counts of common assault, 4 counts of motor vehicle stealing or attempted motor vehicle stealing, 6 counts of stealing or attempted stealing and 1 count of aggravated burglary. Those offences were committed during 2018 and before he was taken into custody in May 2019. He was released in September 2020 but quickly re-offended.

7            The crimes for which he is now to be sentenced were committed on 23 and 24 January 2021. He committed other offences on 19 December 2020, when he evaded police, drove while disqualified and with THC and methylamphetamine in his body. Then, in February and March 2021 he failed twice to appear in the Magistrates Court in breach of his police bail. On 9 June 2021 a magistrate imposed, for those offences, a term of imprisonment of two months from 22 April 2021.

8             Despite his troubled past and history of offending the appellant is literate and numerate and has been able to engage in some employment when not in custody. His counsel informed the sentencing judge that the appellant had insight into the factors which contributed to his offending, acknowledged that illicit drug use was a matter of concern for him. He claimed that he was able to abstain from illicit drug use while in custody, but that lack of support, homelessness and anti-social associates led to return to drug use and re-offending when in the community. His plan, on his release, is to relocate to Flinders Island to remove himself from bad influences and to seek more support.

9 Some of the offences for which the appellant was sentenced were triable summarily. The sentencing judge dealt with those offences pursuant to the power under s 385A of the Criminal Code because they all arose from closely related facts. The legislative penalty provisions which applied are relevant. The charges of aggravated burglary and stealing, contrary to the Criminal Code, s 245(a)(iii) and s 234 respectively, were triable summarily by virtue of the terms of the Justices Act 1959, s 71(a) and (ab), principally because of the limited value of the goods stolen. Had the charges been dealt with summarily they were subject only to the limitation on sentence provided for by the Sentencing Act 1997, s 13, which provides that the maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime that is triable summarily is 3 years for a first offence or 5 years for a second or subsequent offence. Motor vehicle stealing was punishable summarily by a penalty not exceeding 50 penalty units or to imprisonment for a term not exceeding 3 years: Police Offences Act 1935, ss 37B and 37E. Injuring property contrary to the Police Offences Act, s 37, was punishable by a penalty not exceeding 10 penalty units or to imprisonment for a term not exceeding 12 months.

10           Counsel for the respondent referred this Court to some sentencing statistics for single counts of unlawfully setting fire to property, as well as the other charges to which the appellant pleaded guilty. Previous sentences may be a yardstick by which the Court can achieve consistency in sentencing and application of relevant sentencing principles: R v Kilic [2016] HCA 48, 91 ALJR 131 at [22]. However, in this case, no broad sentencing range is established. In addition, the Court was provided with details of a number of sentences previously imposed in this State for the crime of unlawfully setting fire to property. Those sentences give little guidance in our assessment of this sentence because of the broad range of objective and personal circumstances involved and because, in many cases, a single sentence was imposed for that crime and for other, sometimes more serious crimes.

11           To succeed in an appeal on the ground that a sentence is manifestly excessive or inadequate the appellant must establish that the sentence is unreasonable or plainly unjust. It is not to the point that sentence may be considered as heavy or light, or that this Court may have exercised the

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sentencing discretion in a different way: Hodgetts v Tasmania [2018] TASCCA 15, 29 Tas R 301 per Wood J at 58. The appellant correctly accepts that he must establish that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the discretion: Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1. All matters relevant to sentence must be taken into account, but, in this case, the appellant points to three particular matters of importance. The appellant contends that too much weight was given to his prior convictions, and not enough weight was given to his youth and to his plea of guilty.

12          As to his record of offending the appellant relies on the following passage from the Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465:

"… the antecedent criminal history of an offender is a factor which may be taken into

account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the

instant offence."

13           The sentencing judge referred to the appellant’s record as "appalling" and that "nothing the

courts have done has been able to dissuade you from committing further offending." There is no ground of appeal asserting that his Honour made any specific error in the manner in which he dealt

with the appellant’s antecedent criminal history. That is not surprising when other comments made by

the plurality in Veen (No 2) are considered. After the passage just quoted, their Honours continued:

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

14           The appellant's plea of guilty was a factor to be taken into account in his favour: Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448 per Estcourt J at [40]-[41]; Director of Public Prosecutions v Broad [2018] TASCCA 5 per Geason J at [27]-[31], Dunning v Tasmania [2018] TASCCA 21. It avoided the need for a trial. It indicated a willingness to facilitate the course of justice and some acceptance of responsibility. Sometimes, a plea of guilty is also an indication of remorse. To my mind, this is not such a case. The appellant's repeated criminal conduct over a long time, and his lies to the police when interviewed, strongly indicated that he did not have a proper appreciation of the wrongfulness of his offending and its impact upon his victims, or a genuine desire to make amends.

15           As to the appellant's youth, he was a few days short of his 22nd birthday at the time of the offending. I accept that he may still be regarded as a youthful offender although he was towards the upper end of the age range which warranted that description. In Dunning v Tasmania [2018] TASCCA 21 this Court considered a sentence imposed on an offender who was 21 at the time of offending and 22 at the time of sentence. I think that Porter AJ was correct in saying, at [47]:

"As to the appellant's 'youth', it is correct that he can be categorised as a 'youthful offender': see Mayne v White [2007] TASSC 7 at [5] and the cases there cited. That youth is generally to be considered a significant factor is based on the rationale that ill-considered and immature decision-making is part of the make-up of youthful offenders. The factor does have its limitations. The greater the age the less the

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mitigating force. More particularly, although rehabilitation is usually far more important than general deterrence in the case of a youthful offender, the offending might be of such a nature that general deterrence and denunciation are at least equally important: R v Tran [2002] VSCA 52, 4 VR 457 at [14]; R v AEM [2002] NSWCCA 58 at [97]-[98]."

16           It is commonly understood that young offenders, being immature, are more prone to ill- considered or rash decisions, may lack the degree of insight, judgment and self-control that is possessed by an adult and may not fully appreciate the nature, seriousness and consequences of their criminal conduct: R v Williams [2018] SASCFC 14 per Hinton J at [41], citing Azzopardi v The Queen [2011] VSCA 372, 35 VR 43 and a number of other authorities. Exposure to the difficult conditions of, and corrupting influences in, adult prison is likely to impede, rather than encourage rehabilitation. There is a greater potential for young offenders to be rehabilitated. It is well accepted that protection of the community is ultimately best served by the rehabilitation of a young offender: Director of Public Prosecutions v R [2018] TASCCA 10 per Wood J at [37]; DPP v Milson [2019] VSCA 55. However the weight of the appellant's relative youth as a sentencing factor in this case was reduced by a number of considerations. His repeated offending of the same nature reduced any claim that it resulted from rash or impetuous decision-making. He had previously been offered opportunities for rehabilitation through community based and suspended sentences but persistently continued to offend. He was not entitled to the mitigation which may arise for a young first offender, or an offender who had not been to prison before. When sentencing the appellant in 2019, the same sentencing judge gave him a further chance to steer himself away from crime, and clear warning about the potential consequences of continuing to offend:

"Mr Riley, as you have heard previously, I am going to impose a sentence that backdates to May so that in effect you have already served your sentence. You have been in custody on this matter. But, for what it is worth, you should understand that if you keep going down this path your future lies in prison, and that really is not to your benefit nor is it to the benefit of the community unless you can in some way see your way clear to try and stay out of trouble. But, it is up to you. Nobody else can do that for you."

17           Whether the sentencing judge gave too much weight, or not enough weight, to a particular sentencing factor, may only be judged against the sentence when all matters relevant to sentence are taken into account. A sentencing judge must consider a wide variety of matters which concern the seriousness of the offence and the personal history and circumstances of the offender, and which are often competing and contradictory. As was stated in the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) at 476:

"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

18           In my view, the head sentence imposed by his Honour was not manifestly excessive when all factors relevant to sentence were taken into account. The sentence was not disproportionate to the appellant's overall criminality. He, with others, broke into a home. By doing so, and by conducting himself as he did when inside the home, he showed contempt for the personal and property rights of the owners. He then stole and destroyed a vehicle of considerable monetary value, and probably of other value to the owners. His motive in setting fire to the vehicle could only have been wanton vandalism or to hide evidence of his role in the burglary and theft. It was not contended that he had a lesser degree of criminal culpability than his co-offenders for any of the crimes. The appellant's record made clear that these crimes were a manifestation of his continuing disobedience of the law.

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Retribution, deterrence and protection of society indicated that a more severe sentence was warranted.

The appellant’s record cast light on his moral culpability and indicated a particular need for strong

personal deterrence, in addition to general deterrence.

19           The sentencing judge made what was, in my view, proper allowance for the appellant's relative youth and rehabilitation by permitting the earliest possible eligibility for parole. By doing so he encouraged reformation and good behaviour in prison, and allowed or increased the chance of rehabilitation under supervision through conditional freedom following his release.

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File No 1870/2021

BRADLEY MARK RILEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
8 October 2021

20   For the reasons given by Pearce J I joined in an order dismissing the appeal.

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File No 1870/2021

BRADLEY MARK RILEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
8 October 2021

21           At the conclusion of the hearing of this appeal I joined in an order that the appeal be dismissed. My reasons for making that order accord with the reasons expressed by Pearce J in his reasons for judgment published today. I wish to add some brief additional observations.

22           I agree that it has not been demonstrated that the sentencing judge erred in the exercise of his sentencing discretion such that the sentence imposed was manifestly excessive or that it was plainly unjust or otherwise a product of an undefined error.

23           In my view the sentencing judge gave proper regard to the fact that the appellant had entered guilty pleas at a relatively early stage, was a youthful offender and had a long list of relevant prior offending.

24           Not only was the sentence not the product of a miscarriage of the sentencing discretion it was a sentence which was entirely appropriate in the circumstances. The fact that it is at the higher end of sentences previously given for the relevant offending does not make it plainly unjust when one has proper regard to the appellant's prior criminal conduct without re-punishing him for that conduct.