DPP v Suckling & Brougham [1999] VSCA 190

Court of Appeal (Vic)|1999-11-26|Before: PHILLIPS, C.J., TADGELL and BUCHANAN, JJ.A.

CRIMINAL LAW - Sentence - Director's appeal - Armed robbery - Youthful offenders - Prospects of rehabilitation - No specific error - Not manifestly inadequate.

For the reasons given by Buchanan, J.A. I agree that these appeals should be dismissed. Specific error has not been established. While I, myself, would have imposed more severe sentences, I am not persuaded that the sentences fell altogether outside the range of those properly available to the sentencing judge.

His Honour's reasons for sentence require comment. Reasons for sentence may be of real interest to a variety of persons, including the members of an appellate court. They should, therefore, as a basic requirement, contain a clear statement of the facts upon which the sentence is based. The reasons for sentence in the cases of the respondents were not so formulated. Rather, his Honour visited a variety of topics including an aspect of the duties of the Crown Prosecutor; his own background and experience; his conversations with other judges; the transportation of convicts and the recent tragic events at Port Arthur. Indeed, his Honour appears to have perceived that his obligation to the administration of justice in sentencing could be satisfied by the delivery of a colloquial homily to the respondents. There is, of course, a place for homilies in the sentencing process in appropriate cases, providing they supplement properly informative sentencing remarks.

I regret that I am obliged to say that the reasons for sentence in these matters fall short of an appropriate standard.

The respondents were each sentenced for two offences of armed robberies of service stations. On the face of it, custodial sentences of eight months for the offences appear to be remarkably lenient, whether to be served in a Youth Training Centre or an adult prison. I should nevertheless, but for one circumstance on which I should make my own comment, be content to dismiss these Crown appeals without adding to what Buchanan, J.A. has said. I refer to the unfortunate manner in which the judge framed his sentencing remarks. I should be sorry to see them used as a model.

An examination of the sentencing remarks with a view to discovering in them any reasoned explanation for the sentences is disappointingly unproductive. The remarks can scarcely be said either to meet the immediate purpose for which they should be designed or to serve the wider administration of justice. The immediate purpose has conventionally been to explain the reasons for the sentence to the person on whom it is passed. Generally, a wider and concurrent purpose will also fall to be served: to provide an explanation of and information about the sentence for the benefit of those in other quarters who have or may be expected to have a legitimate interest in it. Those others will commonly include the prosecutor, police and prison authorities, any victims of the crime or persons otherwise affected by it, including families, friends and any employer (or, it may be, employee) of either a victim or, indeed, the prisoner; one or more of State, Commonwealth and local government agencies or authorities; and institutions (both public and private) including those concerned with public benevolence, education, and the like. My catalogue is by no means exhaustive, but it should naturally also include the general public, and thus the public news media, and any court of appeal to whose lot it might fall to appraise the sentence.

A moment's thought will show that an adequate expression of a judge's sentencing remarks is of essential importance in the administration of justice in the widest sense. It will usually be convenient, if not necessary, in order to place the sentence in an intelligible context, that the judge should give at least a succinct statement of the relevant facts. This, of course, is not so much to inform the prisoner of what was done in the commission of the crime - for that in itself will seldom be required - as to record the facts upon which the judge has proceeded in formulating the sentence. The whole exercise, if it is to fulfil its proper function, will be carefully undertaken. The sentencing remarks should be expressed plainly, economically and with no unnecessary legalism. Importantly, however, they should be expressed in the language of judgment.

In this case the judge's remarks were in several respects ill fitting. They contained not even a general statement of the relevant facts on which he proceeded in formulating his sentences. On the other hand the judge made several discursive and completely irrelevant references to himself. It was inappropriate to say, as he did early in his remarks, "I will tell you just a little about me", and to proceed to do so. The judge indulged in some unhelpful historical and even geographical generalities, some of them also inaccurate. He couched some of his remarks in a low level of language, reflecting no credit on the judicial office. I venture to suggest that the sentencing process is poorly served by a judge's persistent use, however well intentioned, of an argot or slang that is better left outside the courtroom. Thus, for instance, the judge's references to the two prisoners as "you guys", and to counsel as "the two guys at the Bar table", and his comment that one of the prisoners had helped the other "to get into a hell of a lot more trouble than he should have been" (all in the course of the sentencing remarks) set no kind of acceptable judicial example. I hope that we shall see no more of the kind.

I agree, for the reasons that Buchanan, J.A. has assigned, with the orders proposed.

On 25 June 1999 the respondents each pleaded guilty in the County Court to two counts of armed robbery. The maximum penalty for the crime is 25 years' imprisonment. Suckling was aged 19 years and Brougham 22 years at the time the offences were committed. On 4 August 1999 Suckling was sentenced to be detained in a Youth Training Centre for a period of eight months while Brougham was sentenced to a term of eight months' imprisonment on each count and it was ordered that four months of the term be suspended for a period of 12 months.

The Director has appealed against the sentences as manifestly inadequate, contending that the sentencing judge failed to recognize the gravity of the offences, failed to impose sentences which adequately reflected the requirements of general and specific deterrence and gave too much weight to mitigating considerations. In the case of Brougham, the Director also complains that the sentencing judge erred in failing to order any cumulation.

On 17 December 1998, the date of the commission of the first robbery, the respondents were penniless and out of work. Suckling was to tell the police later, "I didn't have any money and I couldn't get nothing for me family for Christmas." Neither applicant drank nor used hard drugs. Neither was idle by inclination. A forensic psychologist who assessed Suckling in 1999 described him as "a compulsive worker" who was not happy unless he was in full-time employment. From the age of nine years Suckling worked after school and at weekends. He left school after completing Year 10 and commenced work at a local abattoir, leaving after two years because he became ill. He next worked at a business converting cars to run on LPG, and then obtained work in a butcher's shop. He lost that job when the shop closed. He obtained work in an abattoir at Packenham. The abattoir also closed, and he obtained employment in another butcher shop. Suckling's health is poor. In 1997 his back was injured when he was crushed against a wall by a forklift tray. He suffers ongoing pain, which is relieved by chiropractic manipulation. At the time of his injury he developed epilepsy as a result of contracting a virus. When the offences occurred Suckling had been out of work for some time due to his poor health; he could not afford chiropractic treatment; his rent was in arrears; the girl with whom he lived had returned to her parents; and he was receiving letters of demand from solicitors acting for doctors who had treated him.

Brougham left school during Year 10 and commenced a plumbing apprenticeship. After six months the company employing him was wound up, and Brougham was unable to find another plumber to continue his apprenticeship. Hearing that work was available at an abattoir in Katherine in the Northern Territory, Brougham travelled to Katherine and obtained work for the 1998 season. When the season ended he returned to Melbourne and obtained casual work by attending at the gates of abattoirs early in the morning. If work was available it was offered to those in attendance at the gates. A forensic psychologist who interviewed Brougham reported, "He has a very strong orientation to work. He wants to be able to settle and work."

Suckling and Brougham were friends. On 17 December 1998 they were both without money and spoke about obtaining food to get through Christmas. They had recently sought work, but without success. Suckling suggested to Brougham they should rob a service station. After some resistance Brougham acquiesced. He drove Suckling in his car to a BP Service Station in Pakenham and parked a hundred metres away. Suckling entered the service station while Brougham waited in the car. Suckling wore a windcheater with a hood over his head and part of his face. Inside the shop at the service station Suckling confronted a young male employee. He thrust a boning knife at the employee and demanded money. The employee gave him $280 from the till. Suckling fled to the car where he gave Brougham $40 or $50. A passerby thought Suckling was behaving suspiciously and noted the car number. The passerby notified the police who traced the car to Brougham, but only after the pair had held up another BP Service Station in Cranbourne four days later. Suckling entered the service station disguised with a beanie and sunglasses. He approached the counter staffed by two women, one aged 16 years, the other 24 years. Suckling produced the knife and demanded money, leaning towards the younger woman. She took $295 from the till and gave it to Suckling, who fled to the car.

Soon after the second robbery, the pair were arrested by the police, who had traced the car's registration number to Brougham. Both made full confessions to the police and expressed remorse. Brougham said: "[I]ts been preyin' on my mind ... Shouldn't have been doin' it ... It's - it's wrong, stupid." Suckling said: "I know I shouldn't have done it and that. Dunno how I could have done it. Just never done that nothing like that before... Makin' the biggest mistake of me life." The psychologist who examined Brougham reported that he was "extemely distressed over his behaviour ... There was no doubt over his contrition and remorse at all." The psychologist who examined Suckling said he was "well aware of the seriousness of the offence of armed robbery" and spoke of "his distaste for the result of his actions." The respondents pleaded guilty at the earliest opportunity.

The respondents' early lives were marked by discord and deprivation. Suckling has never known his father. His mother had a succession of partners, some of whom fought with the respondent. Suckling was sent away from time to time to live with his aunts or grandmother. At the time of the commission of the offences Suckling was living in a caravan park at which his mother worked as a caretaker. For the last three years he had lived with his girlfriend, although from time to time she returned to her parents when Suckling was out of work or because of the requirements of her course in veterinary nursing. Brougham's parents separated when he was born and, like Suckling, he had never met his father. Brougham's mother married a man who was aggressive and a heavy drinker. The couple separated early this year and Brougham's mother has been diagnosed as suffering from lung cancer.

Suckling has five prior convictions from four court appearances. They were generally minor offences in respect of which fines were imposed. The most serious offence was that of intentionally or recklessly causing injury, for which Suckling received a suspended sentence of 14 days' imprisonment. Brougham had prior convictions for theft of and from motor vehicles and handling stolen goods and was given a community based order. He breached the order and received a prison sentence of eight months, which was wholly suspended. The current offences occurred during the period of suspension. Hithereto neither respondent had been imprisoned.

At the forefront of his case counsel for the Director placed the gravity of the offences, and in doing so emphasized the maximum penalty, the commission of two robberies, the use of a knife and the deliberate terror instilled by Suckling in his victims. While the sentencing remarks lacked the usual structure of a rationale of the sentences but rather took the form of a series of observations in an idiom evidently designed to be understood by the respondents, his Honour did comment on the prevalence of the crimes and how frightening it was to the victims, referring to a victim impact statement made by the younger woman victim of the second robbery. He also stressed the youth of the offenders and the importance of their rehabilitation. In doing so the sentencing judge may well have had in mind the statements of Batt, J.A., with whom the other members of the Court agreed, in R. v. Mills [1998] 4 V.R. 235 at 241, where his Honour agreed with counsel that in general terms the authorities established the following propositions:

"i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)"

Batt, J.A. also said that an applicant who was 21 years old at the date of sentence, and no longer a "young offender" within the meaning of s.3(1) of the Sentencing Act 1991, was to be treated as youthful in the application of the propositions.

Counsel for the Director contended that the sentence imposed upon Brougham appeared to have been based on a notion of parity which recognized that it was likely that Suckling would be released after about four months in a Youth Training Centre. I doubt that was so. The sentencing judge said only this in respect of parity:

"If I deal with you persons, unless there are specific reasons to differentiate, I have got to deal with you equally. The fancy word is parity of sentencing. That is difficult because once you turn 21, the system of going to a youth training centre is lost."

Those remarks are not inconsistent with the deliberate imposition of a lesser sentence upon Brougham who was persuaded to join in Suckling's enterprise, played a subsidiary role and received a commensurately small proportion of the proceeds. Counsel for the appellant recognized that Suckling was the more active of the two and appeared to have retained almost all the proceeds of the robberies.

It was submitted on behalf of the Director that once the sentencing judge formed the view, as he should have, that custodial sentences were appropriate, he was obliged to impose sentences which reflected the fact that the respondents were guilty of serious armed robberies. In my view the seriousness of the offences should not wholly dictate the punishment that is appropriate. No doubt the seriousness of the crimes played a significant part in the imposition of custodial sentences, but the respondents remained young offenders never before incarcerated whose attitude to work and reaction to their own crimes enabled the sentencing judge to give considerable weight to the prospect of their rehabilitation.

While ordinarily one would expect a degree of cumulation of the sentences imposed for two robberies, each case must depend on its own facts. In the case of Brougham the acts giving rise to the discrete offences were the result of his acquiescence in Suckling's enterprise, and in my view concurrency did not produce a sentence which was so disproportionate to the gravity of Brougham's conduct as to signify error.

In my view the appellant has not established that the sentencing judge fell into any specific error, and accordingly the appeal can only succeed if the sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle: Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295 at 299 per Brennan, Deane, Dawson and Gaudron, JJ.; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, J.A. In considering the adequacy of the sentence "it should not be forgotten that [a Crown appeal] represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy": Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227 at 234 per Deane and McHugh, JJ.

The sentences imposed on the respondents are less than those which I would have imposed. However, the question is whether the sentences were open to the sentencing judge. In all the circumstances, I do not think that the sentences reveal such an emphasis upon the prospects of rehabilitation or minimisation of the gravity of the offences as to take them beyond the limits within which the sentencing judge was bound to operate.

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