Saunders v The Queen
[2010] VSCA 93
•15 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0519
| ROBERT JOHN SAUNDERS | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P and BUCHANAN JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 April 2010 | |
DATE OF JUDGMENT: | 15 April 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 93 | |
JUDGEMENT APPEALED FROM: | R v Saunders (Unreported, County Court of Victoria, Judge Douglas, 3 February 2009) | |
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CRIMINAL LAW – Appeal – Sentence – Blackmail, theft – Whether sentence of 12 months for theft manifestly excessive – Appellant serial recidivist – Importance of specific deterrence and community protection – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr G M Hughan | Robert Stary & Associates |
For the Respondent | Mr DA Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
This is an appeal against sentence imposed in the County Court on 3 February 2009. The appellant pleaded guilty to two counts. On count 1, a count of blackmail, he was sentenced to three years' imprisonment. On count 2, a count of theft, he was sentenced to one year's imprisonment of which six months was ordered to be served cumulatively on the sentence imposed on count 1.
Factual circumstances
At the time of the offences, the appellant lived at the same rooming house in Richmond as the victim David Cooney. Mr Cooney was nineteen years old at the time.
On the evening of 6 September 2007 Mr Cooney realised that electrical items valued around $1,000 had been stolen from his room. Based on information received from another resident, Mr Cooney then went to the appellant’s room.
At this time Mr Cooney realised that the reason he had not received a cheque book from the Commonwealth Bank, which he had been waiting for, was that the appellant had stolen it. This is the subject of count 2.
Mr Cooney asked the appellant about the whereabouts of his electrical goods. The appellant was not involved in the removal of Mr Cooney’s goods, nor did he have any knowledge of their location. But he told Mr Cooney that he knew where they were located. He demanded money from Mr Cooney in return for locating and retrieving the goods.
Throughout the course of the evening and the following day, the appellant made numerous demands for money from Mr Cooney. These demands were accompanied by threats of physical harm and violence and various acts of harassment and intimidation, including producing a knife and holding it to Mr Cooney’s throat.
Later the next day Mr Cooney reported the matter to the police. A knife that the appellant used to intimidate Mr Cooney was located by the police that morning when they searched the appellant’s room. The police also found in the appellant’s possession cheques bearing the name and initials of Mr Cooney’s father.
The appellant was interviewed and refused to answer questions.
Grounds of appeal
The first ground relied on is that the sentence of 12 months on the count of theft was manifestly excessive. The difficulty which faces an appellant in making good that ground was spelt out in R v Abbott:[1]
The ground of manifest excess will only succeed where it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. The ‘range’ for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.
[1](2007) 170 A Crim R 306, 309.
It seems to me very important that this Court continue to emphasise that the sentencing function is conferred by Parliament on sentencing judges, not on the appeal court, and that the scope for intervention on this ground is heavily circumscribed.
So far from this sentence having been demonstrated to be ‘obviously wrong’ in the Abbott sense, it seems to me with respect that the conclusion her Honour came to was entirely open in the circumstances.
This was serious offending. A cheque book is a very valuable instrument, beyond the value of the paper itself, in the ability it affords a person to steal the funds in the relevant account. But what was really crucial in determining the approach that had to be taken to sentencing was the extraordinarily bad history of the appellant for offences of dishonesty. The following is a chronology of the appellant’s relevant prior convictions for dishonesty offences, which can be seen to have occurred every year or two between 1991 and 2005.
Relevant priors Year Conviction Sentence 1991
Theft – 17 counts
Attempted theft – 2 counts
Break and enter – 2 counts
Probation – breach – 3m
1992
Theft
Community based order – breach – 3m
1993
Receiving
False pretences
Pass valueless cheques
6m
1994
Stealing
Break and enter
6m
1995
Break and enter
Stealing
8m (4m suspended)
1995
Theft – 4 counts
Going equipped to steal – 2 counts
4m
1995
Theft – 4 counts
Going equipped to steal – 2 counts
4m
1996
Theft – 10 counts
Going equipped to steal
9m (wholly suspended) – breach – 6m
1996
Assault with intent to rob – 2 counts
9m (6m suspended)
1997
Larceny
1999
Break and enter with intent
Stealing – 2 counts
8.5m
2005
Burglary – 7 counts
Theft – 9 counts
Obtaining property by deception
9m (wholly suspended) – breach
2005
Theft
In my opinion, this was a record of such extreme recidivism that the sentencing judge was fully entitled to take the view, in accordance with Veen v The Queen ( No 2),[2] that the appellant’s contempt for the law and his continued disobedience to the law made considerations of specific deterrence and community protection of overwhelming importance.
[2](1988) 164 CLR 465.
The question of the applicable sentencing range is not a question to be addressed in the abstract. It is not, with respect, correct to ask whether 12 months for the offence of theft is appropriate. The question which must be addressed is the following: what was the range applicable to this offender for this offence in these circumstances? The answer to the question is, of course, informed by sentencing practices for the offence, by the maximum penalty and by reference to cases which are properly regarded as comparable. Given the appellant’s repeat offending, a sentence of 12 months on the count of theft was well within range.
I do not overlook the submission made by Mr Hughan about his client's personal history. The sentencing judge recorded in her reasons a truly shocking incident which occurred while the appellant was a teenager, when he saw his sister and father murdered in front of him. Counsel was right to describe this as being at the extreme end of the scale of scarring background experiences. But – quite properly – counsel referred to what the Court said in DPP v Terrick,[3] as follows:
The Director’s submission on the appeal focused on the fact that these respondents were serial recidivists. In those circumstances, the mitigating factors flowing from an offender’s personal circumstances must be balanced against the fact that his recidivism increases his moral culpability and the risk of further offending. Recidivism may justify, or even require, a conclusion that an offender has a dangerous propensity and (or alternatively) poor prospects of rehabilitation, such that the offender must be regarded as posing a considerable threat to the community. The need to protect the community then becomes increasingly prominent in the sentencing calculus and the offender’s background will attract correspondingly less weight as a mitigating factor, although it should not be regarded as entirely spent.[4]
[3][2009] VSCA 220.
[4]Ibid [54] (citations omitted).
In short, the mitigation which can properly be drawn from an unfortunate background must necessarily reduce over time. The community is entitled to expect that, after a number of encounters with the criminal justice system, a person of ordinary intelligence, however difficult his/her upbringing, will come to appreciate that the law really does have to be complied with and - in a case such as the present - that stealing from other people will lead to imprisonment and, progressively, to longer terms of imprisonment. By the time this offending occurred, the appellant ought well and truly to have realised that that was the path down which he was heading.
The need for specific deterrence was reinforced, in my opinion, by the following matters which the judge referred to in her reasons:
The offence of blackmail was committed on 6 September 2006 and the theft of the cheque book of the person whom you blackmailed, Mr Cooney, was committed between 20 August 2007 and 6 September 2007. On 13 September 2007 you were arrested in relation to these offences and you were granted bail the following day. During the time you were on bail you committed a number of dishonesty offences for which you were arrested on 17 January 2008. You were sentenced to nine months’ imprisonment in respect of those offences. On 26 September 2008 you completed that sentence. Consequently since that date you have been on remand for these offences.[5]
[5]R v Saunders (Unreported, County Court of Victoria, Judge Douglas, 3 February 2009) [20].
As to ground 2, the argument propounded in the grounds of appeal was that the total effective sentence infringed the totality principle. In my opinion there is no substance in that ground. As counsel for the Crown has pointed out, there was quite separate and distinct criminality involved in the theft, and the order for cumulation of six months of the theft sentence produced a sentence which was proportionate to the total criminality.
In the course of argument, counsel for the appellant sought to advance a different totality argument. He contended that regard should have been had, and should now be had, to the total effect of this sentence taken together with the sentence imposed in January 2008 and completed in September 2008. The contention was that, when the 2008 sentence was viewed with this 2009 sentence, and the criminality involved in all of the offending was considered, it could be seen that the principle of totality had been infringed. The difficulty, of course, is that the sentencing judge was not, nor is this Court, in a position to make any sensible evaluation of the criminality involved in the dishonesty offences for which the appellant was sentenced in 2008.
If this argument was to be advanced, it needed to be advanced on the plea and developed by such detailed reference to the other offending as was necessary to underpin a submission of that kind. That was necessary in order for the sentencing judge to consider the submission, and for the Crown to be able to respond. I doubt, however, that even if that had occurred it would have affected the outcome. As the judge noted, the 2008 offences occurred while the appellant was on bail for these offences, that being an aggravating feature of the other offending.
The judge correctly noted that the appellant had in recent times served a period of nine months’ imprisonment. There is no basis in my opinion for concluding that, in this different respect, the principle of totality was infringed.
I would dismiss the appeal.
BUCHANAN JA:
I agree.
MAXWELL P:
The order of the Court is:
Appeal dismissed.
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