Gyory v R [2012] ACTCA 28

Court of Appeal (ACT)|2012-05-09|Before: Young CJ, Jenkinson JJ, Higgins CJ, Rares JJ

On 23 June 2011, the appellant was sentenced upon a plea of guilty in respect of an offence of possessing a drug of dependence and for breach of a good behaviour order, which I had imposed in respect of an aggravated burglary and associated theft. The sentence imposed by his Honour the sentencing judge was three years imprisonment with a non-parole period of two years dating from 23 June 2011.
In my view, the sentence imposed was in error for two reasons. First, the mental state of the appellant was such as to render him, to a substantial degree, an inappropriate vehicle for retribution, general deterrence and, indeed, even personal deterrence. The focus had to be on the rehabilitation of the appellant.
Secondly, the sentence upon the breach of the good behaviour order was imposed without the sentencing judge being fully apprised of the circumstances surrounding the original offences, including the circumstances of the appellant as revealed at that time. Further, since those proceedings, we have admitted without objection additional material which provides even more information regarding the appellant's childhood physical abuse at the hands of his father. His relationship with his mother seems to have been little better.
In short, he had an horrific upbringing. The only bright spot was his relationship with his uncle, Andrew Gyory, and the latter's family. Andrew Gyory was not aware of the original offending and nor was he aware of the subsequent offending until after it happened. He gave evidence before the sentencing judge indicating that he is supportive of the appellant and I think that is substantial. Indeed, he is prepared to support the appellant in any way that he can.
In my view, the sentences imposed were excessive in the circumstances, particularly in the light of the additional material.
I would impose a sentence of 15 months for the aggravated burglary, six months for the theft, which is to be served concurrently with the above sentence, and 15 months accumulated as to nine months for the drug offence. That is a total of two years imprisonment, which is, of course, to date from 23 June 2011. I would order a non-parole period of one year. That shortened period will allow for the appellant's rehabilitation and will also enable enough time for the Sentence Administration Board to ensure that there is a sufficient support structure in place for the appellant should he be released on parole.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

IN THE SUPREME COURT OF THE ) No. ACTCA 40 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

I agree with the re-sentencing proposed by the Chief Justice and with his comments about the sentencing Judge's failure to consider the circumstances of the burglary and theft offences before re-sentencing the defendant for those offences. I also agree with the Chief Justice's comments about the inadequate attention paid by the sentencing Judge to the appellant's mental health problems and to the importance of rehabilitating young offenders, noting that the appellant was 19 years old at the time of the burglary and theft and is even now only 22.
However, I am not satisfied that this is a case in which it can be properly be said that the appellant's mental health difficulties are such as to render him an inappropriate vehicle for general deterrence, and would expect to see a more careful explanation of the connection between the appellant's undoubted troubles (which seem to result largely from seriously dysfunctional parenting over many years), and the particular offences being dealt with, before such a conclusion could be reached.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

IN THE SUPREME COURT OF THE ) No. ACTCA 40 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

I agree with the Chief Justice's remarks but wish to add some additional observations. First, in exercising the Court's powers under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) to re-sentence the appellant under s 110(2)(b) for the earlier offence, the primary judge, as the Chief Justice has remarked, did not appear to address, in exercising his discretion, the obligation to re-sentence the appellant in the same way as applied to his sentencing on conviction for the earlier offences required by s 110(4). Relevantly, s 110 provided:
1. Cancellation of good behaviour order with suspended sentence order

(1) This section applies if -

(a) an offender's good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender's conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender's good behaviour obligations.

(2) The court must cancel the good behaviour order and either -

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

...

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

Ordinarily, the Court will need to have before it as much of the material as is relevant to the offending for which the offender is being re-sentenced as is available. In my opinion, the prosecution has an obligation in such circumstances to do all that is possible to ensure that that material is before the sentencing judge. There will be occasions, of course, when a transcript of either the evidence or reasons of the sentencer will not be available, particularly where the earlier proceedings had taken place in the Magistrates Court.
But it is important in the re-sentencing exercise that proper regard is had to the obligation to apply the principles made applicable by s 110(4). In Wilkins v Hague and Brian [2011] ACTSC 189, Refshauge J considered some of the principles, and I think, correctly, indicated that the second sentencer is free to impose the sentence that appears, on all the material now before the Court, the sentence that was appropriate to be imposed in the first place. That includes, where appropriate, a sentence that is greater than originally imposed or, as in this case, where the circumstances reveal that not all the material that is now seen to be relevant was before the original sentencer, a lesser sentence, as the Chief Justice has proposed.
Secondly, I am of opinion that the psychological evidence before his Honour indicated that the appellant was at risk of further re-offending by reason of his three diagnosed mental illnesses, namely a major depressive disorder recurrent with mild to moderate symptoms in partial remission, post traumatic stress disorder, also moderate and in partial remission, and a personality disorder. General deterrence, while forming a matter to which the Court must have regard, may be given appropriate weight, sometimes more and sometimes less in sentencing in such cases. The principles applicable in such circumstances were discussed by Maxwell P, Buchanan and Vincent JJA in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 270 [1], 275 [26], 276 [32] and in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ("Muldrock") at 138-140 [53]-[58]. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ made it clear that the principle identified in R v Mooney (unreported, Court of Criminal Appeal, VIC, Young CJ, Lush and Jenkinson JJ, 21 June 1978) by Young CJ and Lush J required sentencers to carefully weigh the general deterrent and retributive effect of a sentence on an offender who suffers from a mental illness, having regard to all of the circumstances in the case. The plurarity discussed cases involving sentencing offenders who suffered from mental illness or, as in Muldrock, from an intellectual handicap. They approved what Lush J had said, namely:

A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.

In this matter, an important factor to be considered in fixing a sentence is the desirability of the appellant being in a position to undergo suitable rehabilitative treatment, given his youth, the disturbing circumstances of his childhood and his ongoing psychological illnesses; see Muldrock 244 CLR at 140 [58]. For these additional reasons, I agree with the orders proposed by the Chief Justice.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares.

Solicitor for the Respondent: Director of Public Prosecutions for the ACT

(Sentence Administration) Act 2005

(Sentencing) Act 2005

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