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[2020] VSCA 286
General information, not legal advice.
Court of Appeal (Vic)
2020-11-17
Mr J, Kaye JA, Forrest JA
Original judgment source is linked above.
DPP v Haberman [2019] VCC 2147 (Judge Hampel)
ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE
CRIMINAL LAW - Appeal - Sentence - Applicant pleaded guilty to 58 charges - Theft - Attempted theft - Criminal damage - Burglary - Attempted burglary - Possession of a drug of dependence - Obtaining financial advantage by deception - Arson - Reckless conduct endangering life - Total effective sentence 5 years 8 months with 3 years 2 months non-parole - Whether judge erred in failing to apply Verdins principles - Whether judge failed to consider hardship caused by applicant's mother's illness as mitigating factor - Whether sentence manifestly excessive - Whether judge erred in applying general deterrence in precedence of sentencing considerations in s 362(1) Children, Youth and Families Act 2005 - Leave to appeal refused - R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
1 The applicant pleaded guilty, before a judge in the County Court, to 58 charges, consisting of one charge of reckless conduct endangering life, one charge of arson, nine charges of burglary, one charge of attempted burglary, 36 charges of theft, one charge of attempted theft, six charges of criminal damage, one charge of obtaining a financial advantage by deception, one charge of handling stolen goods, and one charge of possessing a drug of dependence. He also pleaded guilty to summary charges of failing to stop at police direction, driving while disqualified and a rolled-up charge of committing 15 indictable offences while on bail.
2 Following a plea, made on his behalf, the judge sentenced the applicant to five years and eight months' imprisonment with a non-parole period of three years and two months.[1] That sentence was constituted in accordance with the following table:
s 76,
s 76,
s 76,
s 76,
s 76,
s 88,
s 76,
ss 197(1), (6) &
s 76,
ss 74(1) & 231M,
s 22,
from holding a licence for 10 years (Charge 58)
3 The applicant seeks leave to appeal against sentence pursuant to s 315(2) of the Criminal Procedure Act 2009, leave having been refused by a single judge of the Court. The application for leave to appeal is made on the following grounds:
1. The sentencing judge erred in failing to apply the Verdins principles.
4 Each of those four grounds are the subject of written submissions filed on behalf of the applicant. In oral argument, counsel for the applicant focused primarily on the third ground.
5 The applicant was born on 21 February 1999. He was 19 years of age at the time of the offending, and 20 years of age at the time of sentence. The offending, for which he was sentenced, was committed in two concentrated spates, the first, in the Geelong area, between 13 September and 26 September 2018, and the second, in the Geelong-Warrnambool area, between 8 October and 14 October 2018.
6 The applicant had an extensive record of previous offending, to which we will further refer. Relevantly, on 7 August 2018, he was convicted by the Geelong Magistrates' Court on a number of offences, including two charges of reckless conduct endangering life, six charges of driving while disqualified, four charges of theft of a motor vehicle, twelve charges of theft from a motor vehicle, and eight charges of attempted theft from a motor vehicle. He was sentenced to an aggregate term of 225 days' imprisonment, and a community correction order of 18 months was imposed. As the applicant had already been held in custody for 201 days, he was released on or about 1 September 2018, that is, less than two weeks before he resumed offending.
7 The offending on which the applicant then embarked was prolific. It is not necessary, for the purposes of this application, that we set it out in detail. By way of example, on 15 September he committed five burglaries and he also committed the offence of criminal damage of three motor vehicles, the windows of which he smashed in order to attempt to steal items of property contained in them. On the following day, he committed two further burglaries and an attempted burglary.
8 The first bout of offending came to an end when, on 26 September 2018, a search warrant was executed by the police on premises in Corio where the applicant was then located. On his arrest, he was found to be in possession of a number of stolen items, including personal cards, a mobile telephone, and five sets of motor vehicle keys belonging to stolen vehicles. A quantity of methylamphetamine was also located on his person. On the same day, the applicant was bailed by a bail justice to appear at Geelong Magistrates' Court on 25 October next.
9 The second episode of offending by the applicant took place in the Geelong-Warrnambool area between 8 October and 14 October 2018. That spate of offending was as prolific as the first bout undertaken by the applicant. By way of example, on 8 October, he broke into a white utility vehicle which he stole. He then broke into another vehicle in the South Geelong area, from which he stole a wallet, and used the bankcard contained in it to purchase an item of spray paint and a safe. Following that, he broke into five motor vehicles in Bell Post Hill, from which he stole coins and other items of value from the owners. On the following day, he dumped the stolen vehicle he was driving, and stole another vehicle in St Albans Park.
10 During the following days, the applicant continued to commit similar offences. On 11 October, he drove a stolen Hyundai sedan to a house in Moolap. There he forced entry into the home, and stole jewellery and other personal items, including keys to a Ford sedan. The applicant then set fire to the stolen car which he had driven to the house, completely destroying the vehicle, which was parked in the driveway to the house. He then stole the Ford vehicle, belonging to the owner of the premises, using the keys he had stolen from the house.
11 The applicant continued to offend during the next three days. On 14 October, (on the day of his arrest) he committed the most serious of the offences for which he was charged, that of reckless conduct endangering life. In order to properly depict the gravity of the offending, it is necessary to summarise it in some detail.
12 At about 10:54 am on that day, the applicant was observed by highway patrol members driving a vehicle, that he had stolen on the previous day from premises at Warrnambool. He was first observed driving on the Princes Highway between Swan Marsh Road and Timboon-Colac Road in Pirron Yallock, west of Colac. Police estimated the speed of the vehicle between 120 kph and 130 kph in a 100 kph zone. He was driving in a dangerous and erratic manner. The highway patrol police activated the red and blue lights on their vehicle and attempted to intercept the applicant. The applicant responded by increasing the speed of the vehicle. He crossed the double lines of the roadway and travelled on the wrong side of the road, that is, east in a westbound overtaking lane, for approximately three kilometres at a speed that was estimated between 160 kph and 180 kph.
13 The applicant then crossed back to the correct side of the road, but he again veered onto the wrong side of the road, forcing oncoming traffic to brake and move off the road in order to avoid a collision. He was next seen near the Deans Creek Road exit on the Princes Highway west of Colac. At that time, his vehicle was travelling at an extremely fast speed in a 60 kph zone. One vehicle had to take evasive action in order to avoid a collision. The police lost sight of the applicant's vehicle in Colac, but it was observed by other road users, travelling at between 80 kph and 100 kph in a 50 kph zone, and driving through a give way sign at an intersection without stopping or slowing down.
14 The applicant was next observed driving on the Princes Highway, east of Colac. Due to roadworks, the prescribed speed limit was 60 kph. At that point, the applicant overtook vehicles on the incorrect side of the road at a fast speed through the roadworks, with oncoming vehicles in his path. He moved back and forth from the correct side to the incorrect side of the road in an attempt to overtake vehicles. In doing so, he was required to pull back onto the correct side of the road to avoid a head-on collision.
15 The applicant was again seen not far from Colac, overtaking other vehicles at a fast rate of speed with oncoming traffic in his path. In doing so, he forced the oncoming traffic to take evasive action in order to avoid a serious collision. He continued overtaking a number of vehicles in circumstances which were completely unsafe, including while driving around a bend. On one occasion, he overtook another vehicle on the left-hand side, passing so close to it that the driver could feel the shockwave as he drove past. At that point, the speed of the applicant's vehicle was estimated at between 160 kph and 200 kph.
16 Eventually, the police located the applicant on the Princes Highway in Waurn Ponds. They deployed stop sticks on the highway, but the applicant drove straight through them, as a result of which the front driver's side tyre of the vehicle came off the rim. He continued to drive on three wheels. In doing so, he sideswiped a vehicle on the highway. He then drove into Highton, once again on the incorrect side of the road into the path of oncoming traffic. He continually overtook vehicles travelling both on the incorrect side of the road, and also by veering to the left-hand side of the road and passing inside them. He then drove the incorrect way down a one-way street, which was an area of heavy pedestrian traffic near shops and supermarkets. Ultimately, he dumped the vehicle in Highton and ran away. He was located by police nearby, in a house crouching under a table.
17 On his arrest, the applicant was so impaired by drugs that he could not be certified to be fit to be interviewed for two days. When he was interviewed, he admitted that he had seen the highway patrol members who wanted to pull him over, and he kept going. He agreed that he was driving at almost 200 kph and he knew he was being followed all the time. He agreed that he drove into the path of oncoming traffic and that he drove recklessly. He also admitted to breaching bail.
18 In total, during the two periods of offending, the applicant stole, or was seen driving, twelve stolen vehicles. He stole property from 21 cars or business premises and one home. He filled stolen vehicles with petrol on two occasions, driving away without paying. He broke into eight separate businesses and one home, and attempted to break into another business. He caused damage to property, vehicles and businesses on six occasions.
19 The applicant has an extensive list of previous convictions. They commenced in March 2011 in the Children's Court when he was twelve years of age. Since then, the applicant has had some 20 separate court appearances. He has been dealt with in the Children's Court and the Magistrates' Court for offences of violence, including attempted armed robbery, intentionally causing injury, assault with a weapon, indecent assault, assault, and threat to inflict serious injury. He has also been dealt with for numerous offences of dishonesty, including burglary, obtaining property by deception, theft of motor vehicles and theft. The applicant's previous convictions also include offences of damaging property and arson. Significantly, he has four previous convictions (in 2013, 2016, 2017 and 2018) for reckless conduct endangering life, and one previous conviction (in 2016) for reckless conduct endangering serious injury, in addition to a previous conviction for dangerous driving. He had in the past been sentenced to periods of youth detention and to terms of imprisonment. As already noted, at the time of the present offending, the applicant was on a community correction order, that had been imposed by the Geelong Magistrates' Court on 7 August 2018.
20 On the plea, counsel for the applicant relied, in mitigation, on the applicant's early plea of guilty, his youth and the need to give priority to rehabilitation, and on the circumstance that his mother was required to undergo surgery in the next month to repair brain aneurysms, and that he was concerned for her wellbeing and wished to be with her in the event that surgery was unsuccessful.
21 The applicant also relied on a report prepared by Mr Ian Mackinnon, consultant psychologist. That report set out the applicant's background in some detail, which was a background of some significant trauma and disadvantage during his childhood.
22 The applicant was the fourth in a family of some eleven children, comprising siblings, half siblings and stepsiblings. His parents separated when he was very young, and for the first seven years of his life he was raised by his mother and stepfather to whom he was close. When the applicant was seven years of age, his stepfather was murdered. During his childhood and adolescence, his mother struggled with heroin abuse, and issues of anxiety and paranoia. She was subjected to acts of violence in the applicant's presence, and she was robbed by other people who were also involved in drug abuse. When he was young, the applicant was placed into care, during which time he was subjected to sexual abuse. His education was significantly interrupted. In his early teens, he commenced to abuse drugs. The judge noted that the applicant's drug abuse had a significant role in the offending, which was either fuelled by it or committed by the applicant in order to obtain money so that he could purchase more drugs.
23 The applicant told Mr Mackinnon that he had been diagnosed to have an intellectual disability. However, on examination, Mr Mackinnon considered that his general cognitive function came within the normal adult range and that his general cognitive functioning appeared to be normal. Mr Mackinnon diagnosed the applicant to have suffered post-traumatic stress disorder ('PTSD') as a result of his experiences when he was younger, and he expressed the view that that disorder had played a role in his offending.
24 Based on that report, counsel for the applicant sought to rely on the principles stated by this Court in R v Verdins.[2]
25 The sentencing judge summarised, in detail, the offending engaged in by the applicant. Her Honour noted that, at the time of the offences that were committed on 14 October, the applicant was impaired by substance abuse. She considered that the applicant's history of substance abuse and of 'appalling' driving, when he evaded police pursuit, made it clear that he was aware how dangerous his driving was and how impaired his judgment could be when affected by the use of methamphetamine.[3] The judge also noted that the applicant's persistent reoffending, in driving vehicles while disqualified and committing offences while on bail, and his persistent refusal to acknowledge authority and the law, meant that the sentencing purposes of condemnation and specific and general deterrence were relevant.[4]
26 In mitigation, the judge took into account the fact that the applicant was young at the time of the offending and sentence.[5] Her Honour also took into account the applicant's background of significant disadvantage and deprivation. She noted that the applicant was first removed from his mother's care at the age of nine years and that, although he was placed in State care, he was not provided with supports which might have diverted him from offending. As a result of being taken into care, his education had been significantly interrupted, and he had turned to early substance abuse which had had a significant role in all of the offending in which he engaged. The judge noted that, due to the applicant's learning disadvantage and deprivation in his childhood, his resort to substance abuse was not as morally culpable as the conduct of others who have not been subjected to such disadvantage.[6]
27 The judge noted that notwithstanding the applicant's background of disadvantage and deprivation, he still had the support of his two biological parents. His father had written a letter of support in which he stated that he would be able to provide the applicant with a home, and also to assist him to find employment.[7]
28 The judge also noted that the applicant had been in custody for 14 months, which had given him the opportunity to detoxify and to remain substance free. Her Honour considered the applicant's prospects of rehabilitation must 'at best be considered to be guarded', but she considered it appropriate to structure the sentence to give the applicant the opportunity, with support, to successfully rehabilitate.[8]
29 In the course of discussion with counsel for the applicant during the plea, the judge had indicated that she was not prepared to accept the assessment by Mr Mackinnon that there was any causal connection between his diagnosis of PTSD and the applicant's offending. Her Honour considered that Mr Mackinnon's report, in that regard, constituted no more than an assertion of such a causal connection, without describing any aspect of the applicant's condition that had had a causal role in the offending. Accordingly, in her reasons for sentence, the judge stated that she was not prepared to act on the assessment of Mr Mackinnon that there was a causal connection between the diagnosis and the applicant's offending.[9] Nevertheless, her Honour recognised that the significant disadvantage and deprivation suffered by the applicant in his youth and childhood reduced his level of moral culpability for the offending, in accordance with the principles stated by the High Court in Bugmy v The Queen.[10]
30 In support of ground 1, counsel for the applicant submitted that Mr Mackinnon's report had set out, in detail, the applicant's background, including the traumatic circumstances of his early years. In doing so, Mr Mackinnon noted that the applicant's condition had its origins in the violent death of his stepfather when he was seven years of age, and subsequently with the applicant witnessing acts of violence against his mother, his separation from his family and placement in a welfare unit, the sexual assaults to which he was subjected while in that placement, and the general neglect and deprivation that he suffered throughout his childhood and formative years. Counsel contended that Mr Mackinnon described how those traumas had led the applicant to engage in substance abuse and offending. Mr Mackinnon noted that the applicant's symptoms would likely be elevated at times of perceived threatened danger, and that the second part of his crime spree occurred after his mother had engaged in self-harm in front of him. It was submitted that, in that way, Mr Mackinnon had set out appropriately the basis for his conclusion that the applicant's condition of PTSD was the source of his offending history and of his offending in the present case. Counsel contended that the rejection by the judge of the application of the principles stated in Verdins was not reasonable in light of the detailed analysis contained in Mr Mackinnon's report.
31 In response, counsel for the respondent submitted that the conclusion by the judge, that the applicant had failed to establish a relevant factual basis for the application of principles contained in Verdins, was reasonably open to her Honour. Counsel contended that Mr Mackinnon failed to describe how the applicant's condition of PTSD was causally related to his offending. Mr Mackinnon expressed the view that the applicant expressed relief from his chronic distress by driving vehicles at high speed. That observation, by Mr Mackinnon, was contrary to the evidence. The applicant did not drive in a reckless manner in order to alleviate his symptoms. Rather, he did so in order to avoid apprehension by police. It was submitted that it would be contrary to principle for the Court to accept, in mitigation, a submission that the applicant offended in order to make himself feel better. Further, counsel contended, if in fact the applicant drove in the manner in which he did because of an underlying psychological condition, although that circumstance might reduce his moral culpability, on the other hand, it would enhance the need for weight to be given to the sentencing purposes of significant deterrence and community protection.
32 Counsel submitted that, in any event, Mr Mackinnon's report failed to demonstrate how he had concluded that the applicant did suffer from PTSD. In particular, the list of symptoms, stated by Mr Mackinnon, that supported that diagnosis, did not correlate with the description given to Mr Mackinnon by the applicant of his symptoms.
33 Ground 1 is directed to the conclusion by the judge that the contents of the report of the psychologist, Mr Mackinnon, did not establish a basis for the application of any of the principles discussed in Verdins. In order to be able to rely on those principles in mitigation of sentence, the applicant bore the onus of proving, on the balance of probabilities, that he suffered from a mental impairment in a manner which relevantly attracted the application of one or more of the principles outlined in Verdins.[11] Consequently, in order to establish a material error under ground 1, the applicant must demonstrate that the conclusion by the judge, concerning that issue, was not reasonably open on the evidence.[12]
34 It is well established that particular rigor must be exercised by a sentencing judge in a case in which the principles, outlined in Verdins, are relied on as a mitigating circumstance of the case.[13] As the Court stated in its recent decision in Brown:
Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender's impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[14]
35 At the same time, it is accepted and understood that, ordinarily, pleas in mitigation of sentence are not presented and conducted with the same adherence to the rules of evidence as in a trial. Quite commonly, where an offender seeks to rely on the principles discussed in Verdins, the evidence on that issue consists solely, or most substantially, of the expert report of either a psychologist or psychiatrist. Nevertheless, taking that consideration into account, it is important that the expert report, that is relied on, should properly explain the basis of the conclusion by the expert as to the nature and degree of impairment suffered by the offender. The report should also explain how the particular impairment, or an aspect of it, might engage one or more of the principles specified in Verdins.
36 In the present case, the judge, in her sentencing reasons, dealt only briefly with the contents of the report of Mr Mackinnon, stating that she was not prepared to act on Mr Mackinnon's assessment that there was 'any causal connection between any diagnosis of post-traumatic stress disorder and [the applicant's] offending'.[15] As earlier discussed, in the course of sentencing submissions, the judge outlined her reasons for that conclusion. It is noteworthy that in doing so, the judge did not express a concluded view as to whether she accepted the diagnosis by Mr Mackinnon that the applicant suffered from PTSD. Rather, her Honour focused, in argument, and in her reasons, on the lack of any explanation by Mr Mackinnon as to how such a condition had a causal connection with the applicant's offending.
37 In our view, the applicant has not demonstrated any relevant error in the manner in which the judge dealt with the contents of the report of Mr Mackinnon. In the first place, it is not at all clear, from that report, how and on what basis Mr Mackinnon made a diagnosis that the applicant suffered from PTSD. In the report, under the heading 'Psychosocial Background', Mr Mackinnon described the difficult circumstances of the applicant's upbringing, his education, and his substance abuse. Without reference to any testing undertaken by him, Mr Mackinnon then expressed the view that, at the time that he assessed the applicant, he was suffering from symptoms that met the clinical criteria for PTSD. At that point, Mr Mackinnon did not describe any of the symptoms that he considered met the criteria. Nor did he describe how any symptoms, demonstrated by the applicant, equated with those that were specified in the relevant diagnostic manual that prescribes the test to be conducted for diagnosis of PTSD.
38 Having referred to aspects of the applicant's clinical presentation, and concluded that the applicant's intelligence fell within the normal adult range, Mr Mackinnon then repeated his opinion that the applicant was suffering from PTSD 'of moderate intensity'. It was at that point that he mentioned the issue of symptoms. The terms in which Mr Mackinnon did so are revealing, namely:
Symptoms of Mr Haberman's PTSD may include: anxiety; flashbacks; rumination; intrusive thoughts; avoidance behaviour; sensitivity to environmental cues and triggers; panic attacks; nightmares; disturbed sleep; anger; low frustration tolerance; difficulty in concentrating and persevering; substance abuse; and so on.[16]
39 Relevantly, Mr Mackinnon does not seem to have ascribed each of those symptoms to the applicant; rather he said that the applicant's symptoms of PTSD 'may' include them. For example, at no point in the report, did Mr Mackinnon actually record that the applicant experienced flashbacks, rumination, intrusive thoughts, avoidance behaviour, panic attacks, nightmares, disturbed sleep, and anger.
40 Further, and in any event, the judge was entitled to conclude that if the applicant did suffer from PTSD, it had not been demonstrated that that condition had been a relevant contributing factor to the applicant's offending.
41 Mr Mackinnon did venture a view on that aspect, stating:
... Mr Haberman's PTSD made a significant contribution to his offending by degrading his ability to reason and make sound judgment, causing perceptual and cognitive distortion, eroding his sense of morality and personal responsibility, making him more impulsive and easily frustrated and, generally and engendering a self-destructive tendency and self-absorbed perspective that tended to disregard the needs of others.[17]
42 However, in apparent contradiction of that hypothesis, Mr Mackinnon observed that many of the offences were a reflection of the applicant's 'obsession' with motor vehicles - an obsession, which the applicant stated (to Mr Mackinnon), he would like to turn into a legitimate career. It was not suggested by Mr Mackinnon that the obsession was itself a product of PTSD.
43 In addition, earlier in the report, Mr Mackinnon ventured the view that many of the applicant's offences appeared to have served a psychological function, by providing him with relief from his distress. However, a more direct explanation for the offending was the applicant's excessive consumption of the substance methylamphetamine. When interviewed by police, about the most serious charge, reckless conduct endangering life, the applicant did not say that his driving was an attempt to alleviate his chronic distress. Rather, he said that he had accelerated in the way that he did because, having caught sight of the highway patrol members, he wished to avoid being intercepted by them. He said that he had accelerated his vehicle to almost 200 kph in order to put an end to the police pursuit. In those circumstances, the involvement by the applicant in the multiple car thefts, and in the reckless driving on 14 October 2018, was not demonstrated to have any relevant connection with his PTSD. The judge was correct, therefore, to conclude that the applicant's moral culpability was not mitigated by reason of his PTSD.
44 Nor do we consider that Mr Mackinnon's report provided an appropriate evidentiary basis upon which the other aspects of sentencing, referred to in Verdins, might be affected by any such condition. There was no suggestion by Mr Mackinnon that as a result of his diagnosis, a different kind of sentence should be imposed on the applicant. Further, the condition was not of such severity as to warrant moderation or elimination of general deterrence or specific deterrence as sentencing considerations, particularly in light of the seriousness of the offending and the applicant's history of repeated offending.[18] Further, Mr Mackinnon's report does not contain any basis for suggesting that the applicant's condition meant that a sentence of imprisonment might weigh more heavily on him, or that there was a serious risk that a sentence of imprisonment might have a significant adverse effect on his mental health. Indeed, we interpolate that the applicant has, commendably, embarked on a genuine program of rehabilitation while in prison. He has sought and received treatment for his serious drug addiction, and it would appear he has genuinely gained some insight into the gravity of his offending. In that respect, on the plea, (and before this Court), the applicant expressed his sincere regret for his conduct and for the harm that he caused by it.
45 Accordingly, we are not persuaded that the judge erred in failing to apply the principles discussed in Verdins. It follows that ground 1 of the application must fail.
46 In support of ground 2, counsel for the applicant noted that the applicant's mother gave evidence at the plea hearing that she had been recently diagnosed to have three aneurysms of the brain, which had been detected when she was hospitalised after engaging in an episode of serious self-harm. She stated that she would be undergoing surgery early in the New Year, and that there was a 25 per cent chance that she would not survive the operation or that she would be left with a disability. She also gave evidence that she would be unable to visit the applicant in prison because of her previous history. In the course of the plea, counsel specifically raised, as a mitigating factor, the applicant's concern for his mother's wellbeing, which would constitute an additional burden of imprisonment that should be taken into account in mitigation of sentence. However, it was contended, the judge failed to make any reference to this relevant factor in her reasons for sentence.
47 In response, counsel for the respondent noted that the judge's reasons for sentence were delivered on the same day as the plea. Although the judge did not specifically mention, in the reasons, the applicant's concern for his mother's health, her Honour did note that the applicant's mother had given evidence that morning about (inter alia) her own 'serious physical condition'. Thus, it was submitted, the judge was mindful of that circumstance.
48 In any event, it was submitted, the applicant's mother's health was not a matter on which significant, if any, weight could be placed in mitigation. Counsel contended that Markovic v The Queen,[19] which was relied upon by counsel for the applicant, is not authority for the proposition that mere concern about what might happen to a relative while an offender is in custody is a mitigating factor. Further, counsel for the respondent noted, while the applicant's mother was supportive of him, they did not appear to be particularly close, as the applicant's mother stated that she had only seen the applicant 'probably ... eight times in the last six years'.
49 The fact, that the judge did not make any reference to the medical condition of the applicant's mother, does not mean that her Honour ignored that fact, or failed to take it properly into account. While it is important that sentencing reasons be reasonably comprehensive, nevertheless, it is not necessary that a judge address each and every circumstance that has been the subject of the plea. In the present case, the medical condition of the applicant's mother was the subject of the evidence by her. The judge was clearly cognisant of that circumstance.
50 It is, of course, accepted that, in exceptional circumstances, hardship occasioned to a member of an offender's family by reason of the offender's imprisonment may constitute a relevant mitigating circumstance.[20] As counsel for the respondent correctly pointed out, plainly, the applicant's mother's health condition was not caused or affected by the incarceration of the applicant. It could not, by any means, be characterised as an exceptional circumstance for the purposes of that principle in any event.
51 Further, there was only limited evidence as to any concern that the applicant might feel concerning his mother's condition, while he remained in prison. It is understandable that he might experience some additional anxiety by reason of the fact that the surgery to be undertaken on his mother would occur without him having the opportunity to be by her side before and after the operation. However, we would not regard that consideration as a particularly substantial mitigating factor, and certainly it would not be sufficient, of itself, to warrant the imposition of a different sentence from that determined by the sentencing judge.
53 In support of ground 3, counsel for the applicant submitted that, although the offending by the applicant was serious, nevertheless there were a number of substantial mitigating factors which required the imposition of sentences that were significantly lower than those determined by the judge. Those mitigating circumstances included: the applicant's early plea of guilty; the applicant's remorse; his youth; his deprived background and impaired mental functioning; the added burden of imprisonment due to his mother's ill health; and the applicant's prospects for rehabilitation.
54 In quite compelling oral submissions, counsel for the applicant placed particular emphasis on the applicant's youth, and on his disadvantaged and troubled upbringing. He submitted that, in those circumstances, particular weight should have been placed by the judge on the applicant's rehabilitation as a predominant sentencing consideration. In making that submission, counsel did not advance any separate argument in support of ground 4. Rather, he relied on the sentencing purposes, specified by s 362(1) of the Children, Youth and Families Act 2005 ('Children, Youth and Families Act'), and on the decision of this Court in CNK v The Queen,[21] as illustrating the priority given by the law to the importance of rehabilitation of young offenders.
55 In support of ground 3, counsel referred to the sentences that had been imposed on youth offenders in other cases, including R v Mills,[22] Azzopardi v The Queen,[23] and Atem v The Queen.[24] He submitted that, by comparison with the sentences imposed in those cases, the sentences imposed on the applicant are excessive.
56 In conclusion, counsel submitted that the sentence of three years' imprisonment for the charge of reckless conduct endangering life (charge 58), constituting 30 per cent of the maximum penalty, together with a ten year ban on the applicant obtaining a driver's licence, is manifestly excessive in light of the significant mitigating factors relied on by the applicant. He also submitted that the sentence of 18 months' imprisonment on the charge of arson was well outside the permissible range and suggested that the judge had incorrectly taken into account that the offence had placed other people in risk of some danger. Counsel further submitted that, taking into account the principle of totality, the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period, were manifestly excessive, as being outside the range of sentences open to the judge in the circumstances.
57 In response, counsel for the respondent submitted that the offending by the applicant included a very serious example of the offence of reckless conduct endangering life. His offending was aggravated by the fact that the applicant drove in such a manner only six weeks after he had been released from prison, having completed a sentence in respect of offences which included two charges for the same offence. At the time of the offending, the applicant was subject to a community correction order. His criminal record included another three previous convictions for that offence, as well as previous convictions for conduct endangering serious injury, a conviction for dangerous driving while being pursued by police, and seven convictions for failing to stop his vehicle on direction by the police. In those circumstances, it was submitted that the sentence imposed on the applicant, in respect of charge 58, was moderate.
58 Counsel further submitted that the offence of arson committed by the applicant (charge 37) was also a relatively serious example of that offence. The applicant completely destroyed another person's vehicle in an attempt to avoid detection. The fact that the vehicle was set alight in the driveway of another person, near their home, was a relevant sentencing consideration. In addition, the applicant has a previous conviction for arson.
59 Counsel for the respondent noted that while the other offences committed by the applicant might normally be dealt with in the Magistrates' Court, nevertheless, they were not minor offences. In the course of one month, the applicant burgled nine premises, stole twelve vehicles, and committed a number of other offences. While some significant matters were put in mitigation, nevertheless, the sentencing purposes of specific deterrence, general deterrence and denunciation were of particular importance in the case. Accordingly, it was submitted that the individual sentences imposed on the applicant, the total effective sentence, and the non-parole period, were not manifestly excessive.
60 In order to succeed, on the ground that the sentences imposed on the applicant were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentences, that are the subject of the application for leave to appeal, are so excessive as to manifest error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error may be identified in her Honour's reasons for sentence.[25]
61 In considering ground 3, the starting point is that the offending, in respect of which the applicant was sentenced, had a number of serious aspects attaching to it. In particular, the offence of reckless conduct endangering life, committed by the applicant on 14 October 2018, was most serious. Such an offence is, by its nature, serious. By pleading guilty to the offence, the applicant acknowledged that, at the time at which he drove the vehicle, he foresaw that his conduct would probably create an appreciable risk of death to another person or to other persons.[26]
62 In addition, there were a number of particularly serious aspects of the offending in the present case. The applicant drove at a very high speed over a substantial distance, often on the incorrect side of the road, and while overtaking other vehicles in very dangerous circumstances. He plainly put the lives of a number of other persons (as well as himself) at real risk. In essence, his conduct was grossly irresponsible and extraordinarily reckless. As such, the objective gravity of the offending was at a very high level. It was committed in circumstances in which the applicant had, less than two weeks previously, completed a prison sentence for a number of offences, which included two charges of reckless conduct endangering life, and six charges of driving while disqualified. At the time of the offending, he was subject to a community correction order that had been imposed in respect of those offences. In total, he had four previous convictions of reckless conduct endangering life, and one previous conviction for reckless conduct endangering serious injury, all accumulated in the five years preceding the offending in the present case.
63 The offence of arson, to which the applicant pleaded guilty, was also of itself particularly serious. The maximum sentence for that offence is 15 years' imprisonment. There were serious aspects to the offending in the present case, in particular, constituted by the fact that the applicant set fire to a motor vehicle in close proximity to a suburban home. The sentence imposed for that offence - 18 months' imprisonment - constituted some ten per cent of the maximum prescribed sentence for the offence.
64 An additional serious feature of the overall offending in the present case concerned the particularly high number of offences committed by the applicant in two bursts of offending that extended over some 31 days. They included a prodigious number of offences of dishonesty, consisting of 36 charges of theft, nine charges of burglary and one charge of attempted burglary. Those offences were committed in the context of an extensive criminal history that includes numerous offences of dishonesty.
65 Taking those matters into account, and in the absence of significant mitigating factors, the conclusion would be inevitable that the individual sentences, the total effective sentence and the non-parole period, in the present case, were lenient, if not wholly inadequate to reflect the gravity of the offending and the applicant's moral culpability for it. Viewed in isolation, the offending, and the applicant's previous criminal history, would have required that the sentencing purposes of general deterrence, specific deterrence, denunciation and protection of the community be given particular weight.
66 There were, however, important mitigating factors, upon which the applicant was entitled to rely in mitigation of the sentence imposed on him.
67 The first such factor was the applicant's plea of guilty. His plea to the 58 offences, and the three related summary offences, was of significant utilitarian value. It constituted an appropriate acknowledgement by the applicant of his offending and his responsibility for it. Further, the applicant gave evidence before the judge, evidencing his remorse, and indicating that he had gained some insight, by the time of sentence, as to the nature and effect of his antisocial conduct.
68 The applicant's young age was a particularly important mitigating factor. The law has long recognised that the youth of an offender is a significant mitigating factor for a number of reasons. In particular, it may reduce the offender's level of culpability, compared with the culpability that might be attributed to an offender of more mature years. In addition, the law places particular emphasis on the need to rehabilitate young offenders, not only in their interests, but in the interests of society as a whole.[27] In her reasons for sentence, the judge, in some detail, explained to the applicant the significance and importance of his youth as a mitigating factor.
69 On the other hand, the weight to be ascribed to an offender's youth, as a mitigating factor, necessarily depends on the particular circumstances of the case in question. Where the offending is serious, and where the offending under consideration is of a kind that is often engaged in by young offenders, the weight to be attributed to the offender's youth may need to be moderated, so as to give way to other important sentencing principles, such as general and specific deterrence, and the protection of the community.[28]
70 In the present case, the offending by the applicant - and particularly the offences of reckless conduct endangering life and arson - was serious for the reasons already discussed. That genre of offending is commonly engaged in by young persons. In those circumstances, it was appropriate that the judge should consider that the weight, to be given to the applicant's age, as a mitigating factor, should be moderated. Nevertheless, her Honour correctly recognised that it was important that the sentence, imposed on the applicant, should make sufficient allowance for the applicant's rehabilitation. The judge catered for that aspect of the sentencing disposition by providing for a substantial period during which the applicant would be eligible for parole.
71 The third, and significant, mitigating circumstance was the applicant's particularly disadvantaged and dysfunctional upbringing, which was recognised by the judge in her sentencing remarks. In Bugmy, the High Court observed that the experience of a young person growing up in an environment surrounded by dysfunction, disadvantage and trauma may leave its mark on that person throughout life, and in that way may play a significant role in the development of that person's personality and reactions. The Court recognised that for those reasons, such circumstances might reduce the moral culpability of the offender.[29]
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent's sentence.[32]
73 As we have noted, the judge in the present case took into account, as a mitigating factor, the significant disadvantage and deprivation suffered by the applicant during his childhood and youth, and the effect that it had on his development. As her Honour correctly noted, by reason of those circumstances, the applicant was not a person who should be made an example of, so that the weight to be attributed to the sentencing purpose of general deterrence was significantly reduced.[33]
74 The mitigating circumstances in this case, which we have discussed, were of some significance in the determination of the sentence to be imposed on the applicant. Nevertheless, and giving full weight to those circumstances, we are not persuaded that the sentences imposed on the applicant for the individual offences, the total effective sentence and the non-parole period, were wholly outside the range of sentences available to the judge in the circumstances of this case. As already mentioned, in the absence of those mitigating circumstances, the sentences would, in view of the gravity of the offending, be particularly lenient. Weighing the gravity of the offending on the one hand against the appropriate weight to be given to the mitigating circumstances that we have discussed, it cannot be concluded that the sentences imposed on the applicant were manifestly excessive, or even approached that level.
75 In support of ground 3, counsel for the applicant referred to sentences imposed on other youthful offenders as in the cases of Mills, Azzopardi and Atem. He noted that the offending in each of those cases was more serious than the offending in this case. By comparison with the sentences imposed in those three decisions, counsel submitted that it could be demonstrated that the sentences in the present case were manifestly excessive.
76 In each of the cases referred to by counsel, the offences were relevantly different to the offences for which the applicant was sentenced. Further, as the High Court made clear in Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym),[34] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless, they are only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case.[35] So called 'comparable cases' are not precedents, as no two cases are alike. The factors that affect the exercise of sentencing discretion in each case are different, and the weight to be attributed to each of those factors, in a particular case, may vary. Taking those matters into account, we are not persuaded that the sentences that were imposed in the cases referred to, namely, Mills, Azzopardi and Atem, were such as to demonstrate that the sentences imposed in the present case were manifestly excessive.
77 It follows that ground 3 of the application must fail.
78 As already mentioned, counsel for the applicant did not seek to rely on ground 4 as a separate ground. Rather, he referred to the decision of this Court in CNK, and s 362(1) of the Children, Youth and Families Act, as reflecting the principle that, in exercise of the sentencing discretion, an offender's youth and immaturity are important, if not foremost, considerations.
79 Certainly, as formulated, ground 4 is plainly misconceived. In CNK, the Court held that, on its proper construction, s 362(1) of the Children, Youth and Families Act precludes any consideration of general deterrence in sentencing an offender who is at law a child.[36] The applicant was not a child at the time of the offending.[37] Accordingly, the principles discussed in CNK do not apply to the present case.
81 For the foregoing reasons, the applicant has not succeeded in any of the grounds of the application for leave to appeal. It follows that the application for leave to appeal must be refused.
82 In reaching that conclusion, we refer to, and endorse, the recommendation made by the sentencing judge that the corrections authorities give favourable consideration to the applicant's release on parole on the expiration of his non-parole period, and that while he is in custody they make available to the applicant courses and programs which will assist him to demonstrate his eligibility for parole.[38] In that respect, we note that the applicant has taken steps to attend to his longstanding drug addiction, and that he has, it would seem, gained important insight into, and expressed his regret for, the offences that were committed by him. It would be hoped that the corrections authorities support and encourage the applicant on his pathway to reform, so that, on the expiration of his non-parole period, he will be able to demonstrate his eligibility for a period of parole during which he could have the advantage of appropriate supervision and support.
83 Finally, before departing from this matter, it is appropriate that we acknowledge, and express our gratitude to, Mr Vincent Peters for his assistance in the case. Mr Peters appeared pro bono on behalf of the applicant. In doing so, he provided invaluable assistance, not only to the applicant, but also to the Court, and he thereby made an important contribution to the functioning of our system of justice. Mr Peters performed his role in a manner that was consistent with the highest and best traditions of the Victorian legal profession. The Court was assisted by Mr Peters' submissions, and we commend him for acting in the matter pro bono.
[1] DPP v Haberman [2019] VCC 2147 ('Reasons').
[2] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').
[10] (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').
[11] R v Storey (1998) 1 VR 359, 370-1 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
[12] Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579, 581 [7]-[8] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2009] HCA 13.
[13] Bennett v The Queen [2011] VSCA 253, [60]-[61] (Ashley, Redlich and Hansen JJA); DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 410 [59], 412 [68] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325 ('O'Neill'); Brown v The Queen [2020] VSCA 212, [61]-[63] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) ('Brown').
[14] Brown [2020] VSCA 212, [61].
[18] O'Neill [2015] VSCA 325; (2015) 47 VR 395, 409-10 [57]-[59] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.
[20] Ibid 591 [3], 603 [77] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
[21] (2011) 32 VR 641; [2011] VSCA 228 ('CNK').
[22] [1998] 4 VR 235 ('Mills').
[23] (2011) 35 VR 43; [2011] VSCA 372 ('Azzopardi').
[24] [2020] VSCA 35 ('Atem').
[25] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Lieu v The Queen [2016] VSCA 277, [50] (Beach and Kaye JJA).
[26] R v Nuri [1990] VicRp 55; [1990] VR 641; Mutemeri v Cheesman [1998] 4 VR 484; R v Toms [2006] VSCA 101.
[27] Mills [1998] 4 VR 235, 241 (Batt JA).
[28] See, eg, DPP v SJK [2002] VSCA 131, [65]-[66] (Phillips CJ, Chernov and Vincent JJA); DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P); [2004] VSCA 154; Azzopardi [2011] VSCA 372; (2011) 35 VR 43, 56-7 [42]-[44] (Redlich JA); [2011] VSCA 372.
[29] Bugmy (2013) 249 CLR 571, 594-5 [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[31] Ibid [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
[32] See DPP v Heyfron [2019] VSCA 130, [57]-[58] (Priest, Kaye and T Forrest JJA).
[35] Ibid 434 [5]-[9] (Kiefel CJ, Bell and Keane JJ), 453-4 [82] (Gageler and Gordon JJ).
[36] CNK [2011] VSCA 228; (2011) 32 VR 641, 644 [7] (Maxwell P, Harper JA and Lasry AJA); [2011] VSCA 228.
[37] Children, Youth and Families Act 2005, s 3(1) (definition of 'child').
Haberman
DPP [2020] VSCA 286
(2007) 16 VR 269
(2013) 249 CLR 571
(1998) 1 VR 359
(2009) 83 ALJR 579
(2010) 30 VR 589
(2011) 32 VR 641
(2015) 47 VR 395
(2011) 35 VR 43
(2011) 32 VR 361
(2004) 10 VR 125
(2017) 262 CLR 428