Court of Appeal (Vic)|2011-03-28|Before: Weinberg JA, Maxwell P

Edwards v The Queen [2011] VSCA 87 (28 March 2011)

DPP v Edwards (Unreported, County Court of Victoria, Judge Cannon, 24 June 2010)

1 I will invite Weinberg JA to deliver the first judgment.

2 The appellant, Corey Edwards, now aged 33, pleaded guilty in the County Court at Melbourne to two counts of burglary, three counts of theft, two counts of handling stolen goods, one count of reckless conduct endangering serious injury and one count of possession of a drug of dependence. He was sentenced as follows:

Offender was driving or a passenger in a number of stolen motor vehicles

Offender attached stolen number plates to the stolen vehicle (see count 3)

Involved in police pursuit for 12 minutes - drove at wildly excessive speed and went through 1 red light

Total Effective Sentence: = 3 years 6 months' imprisonment

Non-Parole Period = 2 years 3 months' imprisonment

3 On 21 October 2010, Maxwell P granted leave to appeal.

4 By notice dated 22 November 2010, the appellant relied upon four grounds in support of his contention that his sentence should be viewed as excessive.

5 The grounds, as originally drawn, were as follows:

the total effective sentence, individual sentences and non-parole period are manifestly excessive (ground 1);
the appellant should be re-sentenced taking into account the fact that the Parole Board has cancelled the appellant's parole that was breached by the instant offending (ground 2);
the learned sentencing judge erred in her assessment of the appellant's level of culpability connected with count 8 insofar as it was concluded that the appellant had endangered 'any hapless road users' (ground 3); and
the learned sentencing judge erred by failing properly to take into account the appellant's mental condition in sentencing the appellant (ground 4).

6 For reasons that will become apparent, the appellant essentially confined his argument in this Court to ground 2.

7 The facts surrounding the commission of these offences can be summarised briefly.

8 At some stage between 22 and 24 August 2009, the appellant broke into a car detailing business known as 'Autobuff' which was located at a factory site in Mornington. With the assistance of at least one accomplice, he forced open the roller door to the factory by bending it upwards. This gave rise to count 1.

9 Once inside the factory, the appellant gained access to a steel safe and took a set of keys that belonged to a Ford XR8 utility valued at $30,000. He then drove away in the Ford. This gave rise to count 3.

10 At some point during the period in question, a number of vehicles were driven away from the factory. The appellant was charged with handling those vehicles because the Crown could not prove that he, rather than his accomplice, actually stole them. This offending gave rise to count 2.

11 Before the appellant left the factory in the Ford, he put the door to the steel safe in the back of the Ford. This gave rise to count 4.

12 In the early hours of the morning of 25 August 2009, the appellant broke into the premises of a forklift driver training centre located in Dandenong South. He gained entry to the premises by forcing the front door. This gave rise to count 5.

13 Once inside the office, he stole two large grey plastic safes that contained documents relating to the business. This gave rise to count 6.

14 On the morning of 26 August 2009, the appellant was in the Ford Utility that he had stolen several days earlier. He was accompanied by a woman named Alyse Thomas. The Ford was parked on the side of the road in an industrial area in Berwick when police noticed it during a patrol of the area. As they approached the vehicle, the appellant drove away at great speed. At that point there was a police chase. The pursuit lasted for about 12 minutes. At one point the appellant failed to stop at a red light, and drove at approximately 150 km/hour in an 80 km/hour zone. Subsequently, the Ford pulled away from the police vehicle and drove at speeds of more than 140 km/hour in a 60 km/hour zone.

15 The police lost sight of the appellant temporarily. Moments later, his vehicle was spotted by other police cars that had become involved in the pursuit. He drove directly towards two oncoming police vehicles at a high speed. The sentencing judge accepted that the appellant was travelling at between 70 km/hour and 80 km/hour as he approached those two vehicles. In any event, his driving directly towards those vehicles caused them to take evasive action and move to the side of the road in order to avoid a collision. The appellant did not slow down, but increased his speed to about 160 km/hour in a 60 km/hour zone. A short time later, he was intercepted as the Ford came to a stop after running out of petrol. This conduct gave rise to count 8.

16 Following a search of the Ford, police located some of the goods stolen from the two previous burglaries as well as various implements that could be used to effect a forced entry into premises of that kind. They also found a clear plastic bag containing approximately two grams of amphetamine. The possession of that bag gave rise to count 9.

17 In addition, the Ford had stolen Victorian registration plates attached to it. That gave rise to count 7.

18 The appellant took part in a record of interview after his arrest. He gave a series of 'no comment' answers.

19 In the course of her sentencing remarks, the sentencing judge observed that:

Any hapless road users, quite apart from the police who were pursuing you, (as well as your passenger) were endangered by your utter disregard of their presence in the vicinity of your driving.

20 In sentencing the appellant, her Honour accepted that he was affected by amphetamine when he committed these offences. Nonetheless, his capacity to carry out these offences and his ability to steal or handle items of significant value, persuaded her that notwithstanding his use of drugs, he was able at the time to function at an effective level.

21 The appellant had a history of drug abuse, and had committed a number of previous criminal offences. Because he was aware, from past events, that his use of drugs had led him to commit other offences, her Honour considered that his drug-taking during the commission of these offences should be viewed as an aggravating feature. She described the appellant as having made a conscious decision to take drugs knowing that, for him, this was a recipe for re-offending.

22 We were invited, by counsel for the appellant, to depart from her Honour's conclusion that the use of amphetamine in these circumstances constituted an aggravating factor. In essence, the submission was that this finding was unwarranted, having regard to the fact that the appellant had a longstanding addiction to amphetamine. It was further put that his having refrained from using this drug for a period of about seven months from the time of his release on parole in February 2009 until the commission of these offences in August 2009 ought to have counted in his favour, but paradoxically, had been turned against him by treating his return to drug use as increasing his culpability for this offending.

23 I am unable to accept that submission. The finding that the appellant's use of amphetamine, in circumstances where he had foreknowledge of the likely consequences of his drug-taking, and his decision to continue doing so, should be viewed as an aggravating feature was in accord with orthodox principle and authority. His decision to revert to using drugs, after having remained drug-free for some months, with full knowledge of the consequences that were likely to flow from his doing so, brings this case squarely within the principles so comprehensively discussed by this Court in R v Martin[1] and the various cases cited therein. It is well established that substance abuse can, in some circumstances, constitute an aggravating feature of the offending and, in my opinion, her Honour did not err in treating the matter in that way in this case.

24 The appellant had 166 prior convictions from 16 court appearances. These convictions dated from August 2000 until May 2008. On that last occasion, the appellant was sentenced to 12 months' imprisonment in relation to a number of burglaries, thefts and other related offences. In addition, he had a prior conviction for reckless conduct endangering serious injury for which he had been sentenced in the County Court in 2005 to six months' imprisonment, that sentence having been ordered to be served by way of an Intensive Corrections Order.

25 The sentencing judge described the appellant's previous history as having a 'familiar ring' about it in the light of his offending in relation to the matters before her. The previous conviction for reckless conduct endangering serious injury was said to be particularly significant, since it involved driving a motor vehicle erratically and at high speed, and causing interference to a number of other drivers.

26 The appellant had been accorded some leniency in the past. Regrettably, he had not taken advantage of that benevolence. He breached the Intensive Corrections Order within one day of it being granted and had been sentenced to one years' immediate imprisonment as a consequence.

27 The appellant had also been described as suffering from a borderline personality disorder. He had previously sought to have his imprisonment for other offences ameliorated by relying upon what was said to be a final appreciation that drugs had been a 'scourge' and that unless he ceased using them, he would be in prison all of his life.

28 The sentencing judge noted that the appellant had been a model prisoner when previously incarcerated. She accepted that he was capable of behaving well when not affected by drugs, but observed that, despite numerous chances, he continued to succumb to temptation, and consequently re-offended.

29 Her Honour was impressed by the evidence led on the appellant's behalf, principally that given by his sister. Her evidence was in the period leading up to the present offending, the appellant had attended Narcotics Anonymous for a period of six months. She said that she had a very close relationship with the appellant, and that he had lived with her in the past. She said that he had a major problem with addiction and that he suffered from depression and anxiety. She also recounted an attempt on his part to commit suicide by trying to slash his wrists. She gave evidence of the appellant's various attempts at receiving counselling, and suggested that, notwithstanding his relapses, he was intent on rehabilitating himself.

30 The appellant also received support from various other family members.

31 Having taken all these matters into account, as well as the contents of a lengthy report prepared by a clinical psychologist, Mr Bernard Healey, the sentencing judge concluded that the appellant's prospects of rehabilitation could only be regarded as poor, though there was a 'glimmer of hope' if he maintained his present attitude. She referred to the need for any sentence that she imposed to give effect to principles of deterrence, both specific and general, and to adequately denounce and punish the appellant for his conduct.

32 The sentencing judge was told by the appellant's counsel that he owed time to the Parole Board. It seems that he was released on parole for previous offences on 19 February 2009, with an expiry date of 19 February 2010. As the current offences took place in August 2009, the appellant had offended whilst on parole. That was a further circumstance of aggravation which had to be taken into account.

33 Her Honour was further told that the Parole Board was awaiting the results of outstanding matters and that, depending on that outcome, the appellant might owe a period of 12 months. She rightly said that with respect to that matter, this was not something she could take into account. Any attempt to predict what the Parole Board might do by way of reclamation would have been wholly speculative.

34 Finally, it should be noted that the medical evidence before her Honour indicated that the appellant's depressive disorder had responded well to treatment, and that there was no basis to assume that his time in custody would be more burdensome than for those who did not have his particular difficulties. She added, however, that she took into account the matters pertaining to his depressive disorder as reported by Mr Healey, and by Dr Kate Roberts, another clinical psychologist, 'in a general way'.

35 The sentencing judge took into account in the appellant's favour his early plea of guilty and accepted that there was an element of remorse attached to it. The appellant's counsel, on the plea, accepted that only a term of immediate imprisonment would be appropriate. It was submitted, however, that the range put forward by the Crown of between two and a half and four years, with a non-parole period of between 18 months and 30 months, was excessive.

36 It was in those circumstances that the appellant was sentenced as set out earlier in this judgment.

37 It was originally submitted, in the written submissions filed on behalf of the appellant, that the total effective sentence of three years and six months, the individual sentences, and the non-parole period of two years and three months were all manifestly excessive. Because of the Crown's concession that there was fresh evidence available to re-open the sentencing discretion pursuant to ground 2, ground 1 was not pressed before us. I should say, however, that in my view it was without merit. The appellant committed a series of offences, all of them serious, over a period of several days. The burglary and theft charges revealed a level of planning and organisation. His taking of drugs was properly regarded as an aggravating factor given his knowledge of the past links between drug use and offending of this kind.

38 The appellant had an appalling criminal record. Many of his prior convictions related to offences of a similar nature to those which he committed in this case. He had essentially relied upon the same matters of mitigation on previous occasions, and while professing a desire to reform, had continued to offend. He had been treated leniently in the past, but had not taken advantage of that generosity. His prospects of rehabilitation were properly described as poor.

39 The pursuit which gave rise to count 8 was of particular concern. It lasted some 12 minutes or so, and it was significant that the appellant, whilst under the influence of drugs, drove at high speed, went through a red light, and drove directly at two police vehicles.

40 An overall sentence of three years and six months for offending of this nature by an offender with this record could not conceivably be viewed as manifestly excessive. Nor could a non-parole period of two years and three months be so regarded.

41 With regard to ground 2, which is the focal point of the appellant's submissions, it is the case that on 7 July 2010, the Parole Board reclaimed the appellant by cancelling his parole. The reimposed parole period relates to a total effective sentence of two years and six months imposed by Judge Chettle in the County Court on 28 September 2006 for the offences of prohibited person in possession of an unregistered firearm, possession of methylamphetamine, and handling stolen goods. The reclaimed period was 12 months which, pursuant to s 16(3B) of the Sentencing Act 1991, would be added to the sentences imposed by the sentencing judge in this case. In effect, that translates to a total effective sentence of four years and six months.

42 We were told this morning from the Bar table that the current earliest release date so far as the appellant is concerned is 26 November 2011. That translates to a period of two years and three months from 26 August 2009, the date upon the appellant was taken into custody for these offences. If he serves every day of the current sentence plus the reclaimed period of 12 months, his release date will be 24 February 2014.

43 The respondent acknowledges that the effect of the reclaimed period of parole on the appellant's overall sentence is capable of amounting to 'fresh evidence'. That concession is in accordance with the decision of this Court in R v Alashkar; R v Tayar.[2]

44 This means that this Court must consider whether, having regard to the appellant's overall criminality, the totality principle calls for a reduction in the sentences now being served for these offences. The respondent submits that, in the particular circumstances of this case, that principle does not warrant any such reduction. The appellant submits that it does.

45 In my view, there is no basis upon which the intervention of this Court would be warranted. The gravity of the offending, coupled with the appellant's prior history, amply justify a sentence which potentially could reach as long as four years and six months. It is neither unjust, nor inappropriate, that the appellant be required to serve both the sentence of three years and six months imposed for these offences and the 12 months reclaimed by the Parole Board in respect of the sentences imposed in 2006.

46 The totality principle, which is applied to ensure that the aggregation of sentences is a just and appropriate measure of an offender's criminality for multiple offences, is, of course, also applicable where the sentence currently being served derives from a breach of parole. However, in the context in which that principle is to be applied, a Court must ensure that it does not override the legislative policy inherent in s 16(3B) of the Sentencing Act 1991. A Court may conclude that a sentence remains the correct sentence or is within the range of sentences reasonably open even where fresh evidence shows that an offender is required to serve a parole sentence as well. Indeed, in R v Mangelen[3] it was noted that it may transpire that the circumstances in which this Court will feel compelled to interfere, even where such evidence is received, may prove to be uncommon.

47 I should add, for the sake of completeness, that there is no substance whatever in either grounds 3 or 4. Her Honour was perfectly entitled to characterise the appellant's culpability in relation to count 8 as being heightened by the fact that he had endangered 'any hapless road users'. Indeed, ground 3 was formally, and properly, abandoned before us.

48 As regards the reports prepared by Mr Healy and Dr Roberts, these were properly taken into account. There was no basis upon which the Verdins[4] principles could properly have been invoked.

49 I would not wish to leave this case without saying how terribly sad it is to see a young man, with such strong family support, brought down by the scourge of an amphetamine addiction. By all accounts, the appellant has been a model prisoner,

and were it not for his difficulties with drugs, he might have a worthwhile life ahead of him. Whether or not the Parole Board takes the view that he is worth another chance is, of course, a matter for that body. I would only make the point that the use of illicit substances such as amphetamine has caused untold grief to many in this community, and regrettably, the appellant is yet another victim of that drug.

50 I agree. For the reasons which his Honour has given, I would dismiss the appeal. I would add my specific concurrence with his Honour's concluding remarks about this appellant's future.

51 I wish to say something briefly in relation to count 8, which, as his Honour has noted, was abandoned. The language of s.23 of the Crimes Act 1958 is as follows:

23 Conduct endangering persons

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence.

The conduct which is punishable is conduct which 'places or may place another person in danger of serious injury'. It is, on its face, a prohibition on conduct which creates danger for others. Driving through a red light at high speed is conduct of that character whether or not, at the moment the driver goes through the red light, there is another driver in proximity. Objectively viewed, that is conduct which places or may place another person in danger of serious injury.

52 I respectfully agree with Weinberg JA that her Honour was therefore acting in accordance with the provision when she referred to 'any hapless road users'. It is plain that anyone who had been unfortunate enough to cross the appellant's path, when he was driving in that manner, would have been in danger of serious injury by virtue of his reckless conduct.

53 I agree, for the reasons given by Weinberg JA, that the appeal should be dismissed. I too would wish to associate myself specifically with the sentiments expressed by his Honour in his final paragraph.

[3] [2009] VSCA 63; (2009) 23 VR 692, [32] (Redlich JA with whom Ashley JA agreed).

Edwards v The Queen [2011] VSCA 87

At a glance

Court

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Judgment (71 paragraphs)

Edwards v The Queen [2011] VSCA 87 (28 March 2011)

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Cases Cited (4)