Rooney v The Queen
[2017] VSCA 275
•28 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0258
| BRANDON ROBERT ROONEY | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2017 |
| DATE OF JUDGMENT: | 28 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 275 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1822 (Judge Misso) |
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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Aggravated burglary – Sentence of 4 years and 1 month’s imprisonment – Whether manifestly excessive – Applicant was 21 years old at time of offending – Whether youth given sufficient weight by sentencing judge – Question of possible deportation – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L Z B Richter | Emma Turnbull Lawyers |
| For the Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
OSBORN JA
COGHLAN JA:
The applicant appeals against the sentence set out below imposed in the County Court on 29 November 2016.
Charge Offence Sentence Cumulation 1 Handling stolen goods[1] 3 months 1 month 2 Aggravated burglary[2] 3 years Base 3 Theft[3] 6 months 3 months 4 Theft 1 year 9 months Total effective sentence 4 years and 1 month’s imprisonment Non-parole period 2 years and 9 months’ imprisonment Pre-sentence detention 120 days Section 6AAA statement[4] 6 years with a non-parole period of 4 years Other relevant orders
· Three years of the sentence be served cumulatively with the sentence presently being served.[5]
· Compensation order of $79,934.72 with respect to charges 3 and 4.
· All licences and/or permits cancelled with respect to charge 4.
[1]Crimes Act 1958 s 88. The maximum penalty is 15 years’ imprisonment.
[2]Crimes Act 1958 s 77(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958 s 74. The maximum penalty is 10 years’ imprisonment.
[4]This declaration was not included in the record of orders.
[5]That is the sentence of 13 months’ imprisonment with a non-parole period of seven months, imposed on 18 August 2016.
The grounds of his appeal are:
1. The sentencing judge erred by failing to synthesise, as part of his discretion, the applicant’s anguish at the prospect of being deported from Australia in the future.
2. The individual sentences, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.
On 20 March 2017 Priest JA granted leave to appeal on each ground.
The offending
The offending the subject of this appeal is usefully summarised in the Registrar’s Neutral Summary as follows:
On 2 April 2016, between 6am and midnight, the appellant and a co-offender, Daniel Dahmes, gained entry to a house in Balwyn. Entry was gained by using a stolen garage remote control which had been obtained a couple of days earlier (charge 1 — handling stolen goods). At the time, three adult occupants (a male and female, who were husband and wife, and their daughter) were asleep in their bedrooms upstairs (charge 2 — aggravated burglary).
Once inside the house, the appellant and Dahmes stole two handbags, a laptop computer, the keys to two cars and other items of personal property, with a combined value of $11,595 (charge 3 — theft). Using the keys, the appellant and Dahmes stole a Mercedes Benz car and a BMW car, with a combined value of $97,177 (charge 4 — theft).
The BMW car was later recovered at 1am on 4 April 2016 in Preston. It had been abandoned after being involved in a collision with a truck.
At 3pm on 5 April 2016, the appellant was observed by police driving the stolen Mercedez Benz car in the Northcote area. He had two passengers in the car. The appellant attempted to drive away from police once police had taken up a position behind the Mercedez Benz. In driving away, the appellant turned right against a red traffic light signal, and mounted a median strip before travelling west on the wrong side of the road. When the appellant attempted to turn into a side street, he struck the passenger side front panel of a Mitsubishi sedan, causing extensive damage to both vehicles. The appellant was arrested and taken to Northcote Police Station. He gave a ‘no comment’ interview. He was then remanded in custody.
The appellant’s history
The background of the appellant was a very important feature of the sentencing process. The sentencing task which the learned sentencing judge faced cannot be properly understood unless some details of the appellant’s history of offending is set out.
On 20 May 2016 the appellant pleaded guilty before her Honour Judge Pullen to two charges of aggravated burglary and two charges of theft. The first two charges had occurred on 21 March 2014 and the other two charges on 9 May 2014. The appellant was 19 at the time of this offending and almost 21 at the time of sentence. The two incidents involved confrontational aggravated burglaries, in company. There were two separate co-offenders who were some years older than the appellant. The offending was quite serious. The appellant had no prior convictions but there were some summary matters dealt with in late 2014 and mid 2015 whilst he was on bail, which led to the appellant being fined and placed on a 12 month undertaking.
The appellant was on supervised bail from July 2014 until the plea before her Honour. A number of reports were tendered on that plea which demonstrated that the appellant had had significant support on bail but his performance and participation was problematic.[6]
[6]DPP v Rooney (Unreported, County Court of Victoria, Judge Pullen, 28 May 2015) [57]–[97].
On 28 May 2016, her Honour sentenced the appellant to be imprisoned for four months and thereafter to be released on a CCO for three years.
The appellant was released towards the end of September 2015. He committed three of the offences subject of this appeal on 3 April 2016 and was arrested on 5 April 2016 when he crashed one of the cars which had been stolen in the aggravated burglary. He has been in custody since.
On 3 August 2016 the appellant appeared before her Honour Judge Pullen for breach of the CCO and to be re-sentenced for the original offences.[7] The breach proceeding related to numerous instances in which the appellant had failed to observe the conditions of the order. There apparently had been further offending separate to the offending before this Court, but that offending which occurred in January and March 2016, did not form part of the breach proceeding. The offences the subject of this appeal were known about but arrangement could not be made to bring them before her Honour. After hearing material similar to that put before his Honour Judge Misso, her Honour re-sentenced the appellant to be imprisoned for 13 months with a non-parole period of 7 months. The CCO was cancelled and no further sentence was imposed for breaching the order. For completeness it should be noted that the deportation issue was raised with her Honour, and although the matter was (and remains) speculative, her Honour took into account the appellant’s concern about the matter. That was the background in which the appellant came to be sentenced.
[7]DPP v Rooney (Unreported, County Court of Victoria, Judge Pullen, 18 August 2016).
Submissions
Ground 2 – Manifest excess
At the time of this offending, the appellant was 21 years old. It was submitted by the appellant that although all the matters set out in the grounds are relied upon, it is really the alleged failure of the learned sentencing judge to give sufficient weight to the appellant’s youthfulness which was the focus of the appellant’s case. In support of that argument the appellant submitted an analysis of the Reasons of Sentence, in particular [40]–[43], showed that his Honour had undervalued the appellant’s youthfulness.
In those paragraphs, his Honour said:[8]
[8]DPP v Rooney [2016] VCC 1822 [40]–[43] (Judge Misso) (‘Reasons’).
The controversial aspect to the plea made on your behalf are the reliance on your youth and your prospects of rehabilitation. I have already made the observation that this is the third time a plea has been made based upon those two factors.
There must come a time when reliance on mitigating factors becomes less compelling and useful when seen in the context of re-offending. It is clear to me that when Judge Pullen sentenced you initially, she was persuaded that the sentence should be significantly moderated by your youth and prospects of rehabilitation. However, it is clear that when you were re-sentenced by her Honour, that her Honour was less persuaded by both of those factors.
You may well have had time on your hands while in prison to ask yourself why you are here and what you would do if you had your time over again, but there comes a time when you must be brought fully to account for your criminal conduct. I will make it clear to you that your youth and prospects of rehabilitation are relevant but significantly less so because your record now demonstrates that you have thought nothing of the leniency shown to you.
Sentencing principles
Your criminal history, together with the serious nature of your offending, results in the sentencing principles of specific deterrence, general deterrence, denunciation and protection of the community becoming dominant. The importance of your personal circumstances should never be under-estimated, nor should your youth nor your prospects of rehabilitation. However, your personal circumstances cannot overwhelm the seriousness of your offending conduct, and as I have made clear now on a number of occasions, I do not consider that your youth deserves the emphasis submitted by your counsel, and as for your prospects of rehabilitation, I am not convinced that they are nearly as positive or as good as submitted by your counsel. I hesitate in saying that you do have some prospects of rehabilitation but I think those prospects are guarded, at best.
The appellant placed particular reliance on the following passages in his Honour’s Reasons: “…but there comes a time when you must be brought fully to account for your criminal conduct”;[9] and “Your criminal history, together with the serious nature of your offending, results in the sentencing principles of specific deterrence, general deterrence, denunciation and protection of the community becoming dominant.”[10]
[9]Ibid [42].
[10]Ibid [43].
It was submitted that the use of those expressions demonstrated that the learned sentencing judge had undervalued the importance of the appellant’s youth so as to produce a sentence which was manifestly excessive. It was further observed that what his Honour had said about youth having been relied upon for the third time, although strictly accurate, did not appear to have regard to the fact the second and third occasions had occurred after the appellant had gone back into custody.
The matter, it was submitted, had to be viewed in the context that before sentence the appellant had done all he could in custody to improve his position, he had the support of his mother, his girlfriend and her father, and he had the offer of work available to him.
It was also submitted that the sentence of three years on the charge of aggravated burglary was very high when regard was had to current sentencing practices. Emphasis was placed upon the fact that several of the aggravating features described by the Court in DPP v Meyers[11] were not present in this case. It was lastly submitted that although his Honour referred to a ‘child’ in the house, that ‘child’ was in fact 24 years of age.
[11](2014) 44 VR 486, 498 [47]–[48].
The last submission on behalf of the appellant was that the amount of cumulation of the sentence on charges 3 and 4 and, in particular, on charge 4 was unwarranted. That submission was based on the argument that the true criminality in this case related to the aggravated burglary. The argument had already been put that the sentence on that charge was in any event very high.
It was submitted by the respondent that this was a serious example of the offence and the effect on the victims had been very significant. They eventually had to leave their home where they had been for only six months at the time of the offending. It was also submitted that although this was not a confrontational aggravated burglary, the fact that the appellant was on a Community Correction Order (‘CCO’) for similar offending and had only been released from custody a short time before the offending took place put this case in a more serious category in comparison to many other cases.
It was further submitted that when regard is had to the victim impact statement filed from the mother that the effect of the offending has been significant on both her and her daughter.
Finally, the respondent submitted that the orders of cumulation were appropriate. Charge 3 related to the theft of property valued at over $11,000 and charge 4 was a rolled up charge covering the two motor vehicles valued at $97,177. The theft charges had to be considered separately and in addition to the criminality involved in the aggravated burglary.
Ground 1 – Failure to have regard to the appellant’s anguish at the prospect of deportation
On the plea after some discussion between his Honour and counsel for the appellant, counsel said:
COUNSEL:So in other words, Your Honour’s not sentencing him on the basis that he will be deported to New Zealand, because of course we don’t know, Your Honour. I am just asking Your Honour to take into account the anguish that he’ll experience for the remainder of his term of imprisonment, not knowing whether he will be taken into immigration detention and deported, and to apply, or to moderate the sentence to an appropriate degree.
HIS HONOUR: Yes.[12]
[12]Transcript of Proceedings, DPP v Rooney (Unreported, County Court of Victoria, Judge Misso, 17 November 2016) 32.
The complaint under this ground is that his Honour did not refer to that matter in his Reasons and therefore it is open to assume that he did not take it into account. It was also submitted by the appellant that this was one of the factors to be considered when deciding whether or not the sentence imposed was manifestly excessive.
It is clear that the plea was conducted on the basis that the most important feature of the sentencing submission was the appellant’s youth coupled with his prospects of rehabilitation. These matters were reinforced by the material about the support he had in the community and his progress whilst in custody. In the written outline on the plea, the fifth consideration was the appellant’s concern about deportation.
The respondent conceded that the learned sentencing judge did not specifically refer to the question of deportation in his Reasons. It was submitted that his Honour did refer directly to a number of matters put on the plea. In his Reasons his Honour said:
I have paid due regard to the plea made on your behalf by your counsel and to the factors which I consider are relevant in sentencing you. The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.[13]
[13]Reasons [48].
It was submitted by the respondent that there was no reason to assume that his Honour did not pay regard to the question of deportation. In any event, it was submitted that the question of deportation (which remains unresolved) was not a particularly significant feature of sentencing in this case. That submission was supported by reference to the passages of the plea set out above at [21].
Analysis
Ground 1
We are not satisfied that his Honour did disregard the question of possible deportation and the anguish which would be suffered. His Honour appeared to understand how that matter was put on the plea and that circumstance was covered by the general comment he made in sentencing the appellant. Even if his Honour did not have regard to the question, in view of the way the plea was put, that would not constitute sufficient error to warrant resentencing.
Ground 2
It has often been said that the ground of manifest excess does not amount to much argument and that is true.[14] In this case, the sentencing remarks are careful, thorough and considered. His Honour did have regard to the appellant’s youth, family and community support and his prospects of rehabilitation, although he regarded those prospects as guarded. When proper regard is had to the circumstances of the offending, both in relation to the offences themselves and to the antecedents of the appellant, there is no reason to regard the sentencing as anything more than stern, as His Honour intended them to be. [15]
[14]See R v Abbott (2007) 170 A Crim R 306, 309 [13]–[14].
[15]Reasons [4].
Conclusion
In our opinion, the appeal should be dismissed.
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