Simon Walsh and v The Queen and
[2015] VSCA 41
•16 March 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0279
| SIMON WALSH |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2015 |
| DATE OF JUDGMENT: | 16 March 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 41 |
| JUDGMENT APPEALED FROM: | DPP v Walsh & Ors [2014] VCC 1581 (Judge Dean) |
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CRIMINAL LAW – Sentence – Applicant pleaded guilty to burglary, theft and possession of a drug of dependence – TES 3 years with NPP 2 years – Substantial criminal history including prior convictions for theft and burglary – Whether sentence manifestly excessive – Whether one-third reduction on basis of guilty plea inadequate in circumstances where sentencing judge had foreshadowed that ‘substantial discount’ for guilty plea would be allowed – Sentence not manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Robert Stary Lawyers |
| For the Crown | Mr R A Elston QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
BEACH JA:
On 29 August 2014, the applicant pleaded guilty, in the County Court at Bendigo, to one charge of burglary, one charge of theft, and one charge of possession of a drug of dependence. He was sentenced on 19 September 2014 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Theft [s 74 Crimes Act 1958] 10 years 15 months 6 months 2 Burglary [s 76 Crimes Act 1958] 10 years 2 years 6 months Base 6 Possess drug of dependence [s 73(1)(b) Drugs Poisons Controlled Substances Act 1981] 30 penalty units or imprisonment for one year, or both 14 days Nil Total Effective Sentence: 3 years Non-Parole Period: 2 years Pre-sentence Detention Declared: 436 days 6AAA Statement: TES 4 years 6 months; NPP 3 years Other orders: Forfeiture order. Destruction order.
Two co-offenders, Anthony Edwards and Adam Simmons, were also sentenced at the same time. Edwards had pleaded guilty to attempted burglary, theft and two charges of possession of a drug of dependence. He received the following sentence:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Theft [s 74 Crimes Act 1958] 10 years 6 months 3 months 3 Attempted Burglary [s 321M Crimes Act 1958] 5 years s321P Crimes Act 1958 (Vic) 12 months Base 4 Possess drug of dependence [s 73(1) Drugs Poisons Controlled Substances Act 1981] Fine of 30 penalty units or imprisonment for 1 year or both Fine $500 Nil 5 Possess drug of dependence [s 73(1)(b) Drugs Poisons Controlled Substances Act 1981] Fine of 30 penalty units or imprisonment for 1 year or both Fine $1000 Nil Total Effective Sentence: 15 months, wholly suspended for two years 6AAA Statement: TES 18 months; NPP 9 months Other orders: Stay of three months in order to pay fines.
Simmons, who pleaded guilty to one charge of theft, was sentenced to a good behaviour bond of 2 years.
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence is manifestly excessive.
2.The sentence is outside the range of sentences reasonably open in the circumstances of the offence and the offender.
3.The sentence resulted in a total effective sentence and non-parole period that were manifestly excessive.
Circumstances of the offending
In the early hours of 6 June 2013, the applicant met with Edwards and Simmons at the latter’s home in Castlemaine. They discussed an issue relating to another man, Scott Telford, who they believed to be in possession of property which had been stolen from a person named Jai Hohnel. Hohnel was a friend of Edwards. He had also previously been in a relationship with Telford’s then girlfriend.
At approximately 5.30am, Simmons drove Edwards and the applicant to the home of Telford’s sister, Elizabeth Telford, which was also located in Castlemaine. Telford had been staying at his sister’s home for several weeks, and was present in the house at the time. His sister, along with her three young children (aged seven, 9 and 14 respectively) were also asleep in the house.
The applicant and Edwards exited the car, and approached the house. Simmons remained in the vehicle, which he had parked in a nearby street.
The applicant entered the house via an unlocked rear door, and walked into the room where Telford was sleeping. Telford awoke to find the applicant on top of him, pinning him down. He tried to push the applicant off him, but was unable to do so. The applicant said to Telford: ‘If anyone comes in just pretend that I’m your mate and you asked me to come around’. When asked by Telford who he was, the applicant said ‘I’m Jai’s cousin’.
The eldest child was awoken by the noise, and went into his mother’s bedroom to alert her. Ms Telford immediately went to her brother’s room. She saw the applicant jump off him, before sitting beside him and pretending to be a friend of his. Ms Telford asked the applicant who he was, and what he was doing in her house. The applicant replied that her brother had ‘stuff of ours’.
At that point, Edwards appeared at the window of the bedroom. He attempted to enter the house through the window, but the applicant prevented him from doing so. The applicant told Edwards not to come in, and that there were children in the house. The applicant then said to Ms Telford: ‘This guy’s [Telford] taken our stuff and we’re here to take it back’.
Ms Telford then went back to her bedroom with her three children. She telephoned the police. Whilst waiting for them to arrive, she heard yelling and thumping noises coming from her brother’s bedroom.
Meanwhile, the applicant started throwing various items of value through the window to Edwards. A television, laptop computer, computer hard drive, and backpack were amongst the items taken.
The police arrived during the course of the burglary. They arrested Edwards and Simmons. The applicant fled the house through the back door. He took Telford’s wallet, iPod and two packets of tobacco, as well as Ms Taylor’s purse and car keys.
Police searched Simmons’ car. They found a baseball bat, as well as some of the stolen property. They also found two Diazepam tablets, and a small zip lock bag containing methylamphetamine, in Edwards’ wallet.
The applicant’s wallet was also found in the car. Near his wallet was a bottle with 16 and a half Xanax tablets in it, four empty ziplock bags, and a set of electronic scales.
The applicant was subsequently found and arrested in Yarraville on 1 July 2013.
Sentencing judge’s remarks
The sentencing judge was clearly troubled by the circumstances in which the offending took place and, in particular, the impact it had had on Ms Telford and her children. He stated:
In my opinion, this offending constitutes serious examples of the offences of burglary, attempted burglary and theft. A family home was entered in the early hours of the morning with the purpose of stealing goods. Whatever the background to the offending, this was conduct of a kind without any justification.
I have received in evidence a Victim Impact Statement of Elizabeth Telford, and I accept that your offending has had a deeply traumatic effect on her. Your indefensible and cowardly conduct has caused great disruption to her life and the lives of her children.
Offending of this nature is increasingly prevalent, and the sentence that I impose must be calculated to deter others from offending in this way. Your conduct must be denounced by this court, and you must also be punished for what you have done.[1]
[1]DPP v Walsh [2014] VCC 1581, [25]–[27] (‘Reasons’).
The object of general deterrence can thus be seen to have figured prominently in his Honour’s mind. In the case of the applicant, his Honour also stated that specific deterrence was a ‘significant sentencing consideration’.[2] This was primarily because of the applicant’s extensive criminal history.
[2]Ibid [28].
The applicant had sustained as many as 29 convictions for what may be described as ‘dishonesty offences’, including 17 prior convictions for theft and attempted theft, and 3 for burglary and aggravated burglary. In addition, he had, on at least six occasions, been convicted for offences involving violence, such as recklessly causing serious injury, intentionally causing injury, and assault. The applicant had also, on at least five previous occasions, either breached conditions of a suspended sentence order, or failed to answer bail.
In 1999, the applicant was involved in a fatal motor car collision. He pleaded guilty to several charges in relation to that incident, including culpable driving, and negligently causing serious injury. He received a total effective sentence of 6 years and 6 months’ imprisonment in respect of those offences.
The sentencing judge noted that the applicant had an ‘intermittent’ work history and, for a number of years, had suffered from a polysubstance abuse disorder. The applicant’s drug use had escalated after his release from prison in respect of the culpable driving charges.
In light of these facts, the sentencing judge concluded that the applicant’s prospects of rehabilitation were ‘poor’. That assessment was said to be supported by the submission, made on the applicant’s behalf at the plea, that in the event a non-parole period was fixed, he would not seek parole because he had been unable to comply with parole orders in the past.[3]
[3]Ibid [35]–[36].
The sentencing judge also referred to some factors in mitigation. He noted that the applicant’s childhood was disrupted by the separation of his parents, and his father’s alcoholism. He also referred to a reference provided by the applicant’s mother, which indicated that she would support him upon his release from prison.
The most significant mitigating factor was the applicant’s plea of guilty. That plea was made at the commencement of the trial, following negotiations with the prosecutor, and after a contested committal had taken place. His Honour had indicated in the pre-trial hearing that, should the applicant plead guilty, he would receive a ‘substantial discount’. When it came to sentencing the applicant, his Honour said:
You pleaded guilty following negotiations to resolve this matter when it was listed for trial. Your plea has spared the community the cost and inconvenience of a difficult criminal trial, and I also accept that your plea is some evidence of remorse in your case. Accordingly, I have taken your plea into account in your favour in mitigation of sentence.[4]
[4]Ibid [5].
Finally, whilst noting that he had considered principles of parity in sentencing each of the co-offenders in this case, the sentencing judge concluded that disparate sentences were warranted having regard to the differing roles and antecedents applicable to each of them. No complaint as to parity is raised by the applicant on this appeal.
Applicant’s submissions
Although three separate grounds of appeal were specified, the applicant’s complaint is essentially that the sentence imposed upon him was manifestly excessive in all of the circumstances.
The applicant did not contend that the sentencing judge failed to take into account any factors which ought to have been called in aid of mitigation, nor that his Honour’s sentencing reasons otherwise disclose any specific error. Nevertheless, given the mitigating factors that his Honour did refer to, and the objective circumstances of the offending, he contended that the sentence imposed on the individual charges, and the cumulation of 6 months in respect of the theft offence, were manifestly excessive.
The applicant put forward several arguments in support of that submission. First, he pointed to the fact that the charges to which he eventually pleaded guilty could have been heard in the Magistrates’ Court.[5] This, apparently, was relied on as indicating that the offences for which the applicant was convicted were not of such seriousness as to justify the sentence that was imposed.
[5]The reason the matter was heard in the County Court was that the initial indictment included a charge of aggravated burglary which, due to the way it was particularised, was outside the jurisdictional limits of the Magistrates’ Court (a charge of aggravated burglary may only be dealt with summarily by the Magistrates’ Court if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100,000: Criminal Procedure Act 2009 s 28, sch 2). Of course, that charge was not included in the charges to which the applicant eventually pleaded guilty.
Secondly, he argued that the sentence he ultimately received did not reflect the ‘substantial discount’ for a guilty plea that his Honour had indicated would be afforded during the pre-sentence hearing.
Thirdly, in respect of the burglary charge, he noted that he had pleaded guilty on the basis of ‘intent to steal’, not ‘intent to assault’. The latter, so it was said, is a more serious category of offence. In that context, the sentence of 2 years and 6 months’ imprisonment imposed in respect of the burglary charge was said to be disproportionate. It was also said to be akin to a sentence one would expect for aggravated burglary, which is obviously a more serious offence.
Fourthly, the applicant placed reliance on statistics from the Sentencing Advisory Council which indicated that, for persons convicted of multiple offences where one of the offences included burglary, the median total effective prison sentence imposed was 3 years and 4 months.[6] He pointed out that that statistic concerned a cohort of offenders who, on average, had been convicted of five counts of burglary, and 12.9 offences in total. By contrast, the applicant had only been convicted of one count of burglary, and three offences in total. The fact that he received a ‘similar sentence’ to the median was said, in those circumstances, to demonstrate that his sentence was ‘clearly outside the range.’
[6]Sentencing Advisory Council, Sentencing Trends for Burglary in the Higher Courts of Victoria 2008–09 to 2012–13, Sentencing Snapshot No 154 (June 2014), 6 (‘Sentencing Snapshot’)
Finally, in respect of the theft charge, the applicant claimed that the term of 15 months was excessive in circumstances where only a wallet, car keys, an iPod, and tobacco were taken. He also contended that the order for 6 months’ cumulation in respect of that charge was unwarranted, given that the theft was ‘so intimately connected to the burglary charge’, and arose out of the ‘one transaction’.
Crown’s submissions
The Crown contended that it was clearly open to the sentencing judge to impose both the individual sentences, and the total effective sentence, that his Honour did. It submitted that none of the arguments put forward by the applicant to the contrary had any substance.
First, the fact that the matters could, theoretically, have been heard in the Magistrates’ Court was said to be of no relevance. The maximum sentence prescribed for the offending would have remained the same, albeit that the magistrate would not have had jurisdiction to impose a sentence of longer than two years in respect of any individual charge.[7] Given the gravity of the offending, and the nature of the applicant’s antecedents, it could not be said that a sentence of two years or less would have been appropriate.
[7]Sentencing Act 1991 s 113. See also Hansford v Neesham [1995] 2 VR 233, 236-7.
Secondly, the s 6AAA statement demonstrated that the sentencing judge reduced the applicant’s sentence by one third on the basis of his guilty plea. That, quite clearly, was a ‘substantial’ and, in any event, entirely adequate, discount to have been applied.
Thirdly, it should not be accepted that the offence of burglary alleging an intent to seal is, necessarily, a less serious form of charge than that of burglary with intent to assault. The Crown pointed to the fact that both charges carry the same maximum penalty. The decisions of this Court in Denman v The Queen[8] and Hogarth v The Queen[9] were also referred to. Although both of those cases concerned aggravated burglaries, they were, somewhat optimistically, relied upon by the Crown as supporting the proposition that the distinction between an intent to steal and an intent to assault is of little relevance when determining the objective seriousness of a burglary.
[8][2012] VSCA 261.
[9](2012) 37 VR 658.
Fourthly, the Crown submitted that the applicant’s reliance on the sentencing statistics was misplaced. In particular, it criticised the fact that the applicant referred only to the statistics regarding the total effective sentence imposed for multiple offences, as opposed to the principal sentence imposed in relation to the charge of burglary. As to the latter, the statistics reveal that the median length of imprisonment for burglary was 1 year and 6 months.[10] Further, if one were to break down the sentences imposed for burglary into 1–year intervals, the most common range of imprisonment length was between 2–3 years.[11] As such, the statistics do not demonstrate, so the Crown submitted, that the sentence imposed upon the applicant was outside the range. To the contrary, when regard is had to the principles of general and specific deterrence, denunciation, and protection of the community, each of which loomed large in the circumstances of the present case, the sentence imposed upon the applicant was ‘entirely orthodox’.
[10]Sentencing Snapshot, 5.
[11]Ibid. Of the 54 people who were imprisoned for burglary between 2008-09 and 2012-13, 22 people received a sentence of between 2–3 years, 19 people were sentenced to between 1–2 years, 11 people were sentenced to less than 1 year, and 2 people were sentenced to between 3–4 years.
Finally, in relation to the theft offence, the Crown contended that the gravity of the offending needed to be considered in light of the circumstances in which it took place, as opposed to simply the nature of the items that were stolen. The fact that the offending involved the violation of the victim’s privacy, in her own home, was said to make it more serious. The Crown also contended that, although the theft occurred in the context of the burglary, it was properly seen as a ‘separate transaction’. The ‘modest’ measure of accumulation imposed in respect of that charge was, therefore, appropriate.
Conclusion
Had it not been for the applicant’s lengthy list of prior convictions, accumulated over a number of years, there might have been some force in the submission that this sentence was a stern one, towards the top of the permissible range. However, when one factors in the need for deterrence, both general and specific, the only conclusion that can be reached is that the individual sentences imposed on each charge were moderate, the orders for cumulation entirely appropriate, and the non-parole period unimpeachable.
Accordingly, notwithstanding the eloquent submissions advanced on behalf of the applicant by Mr Edney, there is no basis upon which this Court should interfere with the sentence imposed.
In these circumstances, we would refuse leave to appeal.
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