McCarthy v The Queen [2018] VSCA 91

1 On 1 February 2018, the applicant pleaded guilty in the County Court to one charge of attempted armed robbery contrary to ss 75A(1) and 321M of the Crimes Act 1958. The maximum term of imprisonment for attempted armed robbery is 20 years.[1]

2 On 8 February 2018, the applicant was sentenced to a term of imprisonment of one year and 292 days and a three-year community correction order commencing upon completion of the term of imprisonment. The community correction order included conditions as to supervision, treatment and rehabilitation. It also included a condition that the applicant perform 100 hours of unpaid community work. Pursuant to s 18(1) of the Sentencing Act 1991, the judge declared that a period of 292 days was to be reckoned as a period of imprisonment already served by the applicant under the sentence imposed.[2]

3 The applicant now seeks leave to appeal against the sentence imposed upon him. His proposed grounds of appeal are:

1. The sentencing judge's consideration of the applicant's prior criminal history was erroneous, which led to undue weight being placed on the principle of specific deterrence.
2. The sentencing judge erred in failing to give any, or sufficient weight to the applicant's plea of guilty.
3. The sentence was manifestly excessive and outside the range of sentences reasonably open in the circumstances of this offence and this offender.

4 At approximately 4:10 pm on Saturday 22 April 2017, the applicant entered retail business premises, known as Club X, in Ballarat. Two employees of Club X, Mr Thomas Collins and Ms Mathilda Ward, were in the premises. The applicant approached Ms Ward and said 'You're not the girl' and then walked out of the shop. Ms Ward recognised the applicant as she had previously served him as a customer.

5 At approximately 4:20 pm, the applicant returned to the premises. He leaned over the counter and said 'I will have two seven grams of Turbo and I'll leave'. The applicant then repeated this demand and flicked out a knife with his left hand. There was a short exchange between Mr Collins and the applicant, finishing with Mr Collins telling the applicant to 'get the fuck out and never come back'. The applicant immediately left the premises and Ms Ward pressed a panic alarm which resulted in the police being notified. Despite her doing so, we think it is very clear that the occupants of the premises, particularly Mr Collins, were far from terrified by the applicant, who was said to have been a regular purchaser of drugs at the premises.

6 Police attended. A short time later, they located the applicant sitting on the ground in an underground car park. He had really made no attempt to flee. He was arrested. When asked where the knife was, the applicant stated that he had thrown it away. The knife was located by police near drainage pipes a short distance away.

7 The applicant was taken to the Ballarat police station, where a record of interview was conducted. During the course of the interview, the applicant made frank admissions to having attended the premises and making a demand for synthetic cannabis while having a knife in his possession. The reason the applicant gave for his offending was that he was homeless, afflicted by alcohol and drugs, and decided to commit this crime 'to give himself a roof over his head and some good meals'.[3]

8 The applicant was remanded in custody on 22 April 2017, and remained in custody until he was sentenced. He pleaded guilty at a committal mention on 31 August 2017.

9 The applicant was born in September 1965. At the time of his offending he was 51 years of age. At the time of sentencing, he was 52.

10 The applicant had not been in employment since he was about 30, was on a disability pension, and had been homeless for 12 months prior to his offending. He has a history of substance abuse, including alcohol, heroin and cannabis (both natural and synthetic).

11 A neuropsychological assessment in 2010 concluded that the applicant had a cognitive impairment consistent with a diagnosis of alcohol related brain injury, with impairments in executive skills and memory. His past history includes head injuries and mental health problems, with potential diagnoses of schizophrenia, bipolar disorder and anxiety. Neuropsychological testing in August 2017 showed the applicant to have an IQ of 81, a score 'at the low end of the low average range'.

12 Against this background, the applicant has prior convictions dating back to January 1985. In summary:

(1) Between January 1985 and September 1998, the applicant amassed a number of convictions for being drunk and disorderly in a public place, using indecent language in a public place, resisting police, unlawful assault, criminal damage, assaulting police, behaving in an offensive manner, using threatening words in public and breaching intensive correction orders. For these offences, the applicant received fines, community based orders, short terms of imprisonment which were suspended and short terms of imprisonment which were ordered to be served by way of intensive correction orders.

(2) In February 2001, the applicant was sentenced in respect of charges of wilful and obscene exposure in public, behave in an offensive manner in a public place, assault police, escape from police gaol, unlawful assault, intentionally threatening serious injury, failing to answer bail and harassing a witness. The applicant was sentenced to a total effective sentence of one year and 43 days, with a non-parole period of three months.

(3) In May 2002, the applicant was sentenced in respect of failing to answer bail and intentionally threatening serious injury. For these offences, he was sentenced to an aggregate term of imprisonment of nine months, four months of which was suspended.

(4) In June 2004, the applicant was given a one month suspended sentence for driving whilst disqualified.

(5) In December 2007, the applicant was sentenced for refusing a preliminary breath test, driving while exceeding the prescribed concentration of alcohol, refusing to remain at a breath test station, driving while disqualified, failing to answer bail, careless driving, unlicensed driving, failing to give name and address, possessing a controlled weapon without excuse and breaching the suspended sentence imposed in June 2004. He received a total effective sentence of six months for this offending.

(6) In August 2010, the applicant was sentenced for contravening a family violence intervention order. He received a community based order for 12 months for this offending.

(7) In September 2010, the applicant was sentenced for failing to comply with the CBO imposed in August 2010, and contravening a family violence intervention order. On this occasion he received a community based order for 12 months.

(8) In November 2010, the applicant was sentenced, for armed robbery, to a term of imprisonment of two years with a non-parole period of nine months.

(9) In February 2011, the applicant was sentenced, for contravening a family violence intervention order, to a term of imprisonment of one month. This sentence was ordered to be served concurrently with the sentence imposed in November 2010.

13 On the plea, the prosecutor tendered an agreed prosecution summary and a photograph of the knife. No victim impact statements were tendered or relied upon.

14 In the course of her plea for the applicant, counsel tendered reports from a consulting psychologist (Mr Warren Simmons) and a consultant clinical neuropsychologist (Mr Martin Jackson). Counsel summarised the applicant's background, noting that he had left school in Year 10. Counsel referred to the applicant's problems with alcohol, noting that the applicant had worked from the age of 15 in a number of jobs until he was approximately 30, and that the applicant had not worked since that age. Reference was made to the applicant's substance abuse issues, head injuries and mental condition.

15 The applicant's counsel referred to the fact that the applicant had been 'offence free' prior to the current offending. The applicant instructed her that at the time of the offending, he had consumed a two litre cask of port and was also affected by the consumption of synthetic cannabis. It was submitted that the offence of attempted armed robbery should be viewed at the lower end of seriousness because it was 'not overly menacing', the use of the knife being 'limited'.

16 During the course of the plea, the applicant's counsel conceded that the applicant's prospects for rehabilitation were 'somewhat guarded'. As to the sentence to be imposed, counsel said:

Ultimately, your Honour, it's considered a period of imprisonment is warranted and he has spent 285 days in custody. However in all the circumstances it is my submission that a combined sentence of imprisonment and a corrections order is within range.

17 In argument, the judge expressed doubt that a community correction order would be appropriate. In the course of this debate, reference was made to the fact that s 44 of the Sentencing Act 1991 permitted a community correction order to be combined with a term of imprisonment of one year imposed in addition to any pre-sentence detention already served.

18 After counsel for the applicant had made her plea, the prosecutor made a submission about the appropriateness of a combined term of imprisonment and CCO. The prosecutor said that because a term of imprisonment of one year (in addition to the pre-sentence detention already served) could be combined with a CCO, such a combined sentence was within range.

19 After observing that the applicant had pleaded guilty to a charge of attempted armed robbery,[4] the judge commenced his reasons for sentence by saying that the seriousness of attempted armed robbery 'is best demonstrated by the fact that the Parliament ... has prescribed a maximum penalty of 20 years'.[5] After making this observation, the judge then said about the circumstances of the applicant's offending:

[W]hile the word 'Bizarre' is not probably appropriate, it was an attempted armed robbery at the lowest order.[6]

20 The judge accepted, as the applicant's reason for his offending, that the applicant was homeless and afflicted by alcohol and drugs, and wanted to give himself 'a roof over his head and some good meals'.[7] These circumstances, the judge said 'makes this a very unique situation'.[8]

21 The judge summarised the applicant's criminal history.[9] In the course of this summary, the judge said that the applicant had been gaoled on three occasions for breaches of family intervention orders; and that, in 2002, the applicant received a term of imprisonment 'for a series of breaches of family intervention orders and a charge of threaten serious injury'.[10] It is these statements by the judge that form the basis for proposed ground 1. Contrary to the judge's statements, the applicant was only gaoled once for breaching a family intervention order; and the sentence imposed in 2002 was imposed for failing to answer bail and intentionally threatening serious injury - rather than for any 'series of breaches' of family intervention orders.

22 The judge described the circumstances of the armed robbery for which the applicant was sentenced in November 2010. This robbery was committed on a liquor outlet where, as in the case of the present offending, the applicant was very well-known. Whilst he had also been armed with a knife on that occasion again, as in the present case, he had made no attempt to mask or disguise himself. The prospect that he would not be identified was zero. In respect of that armed robbery, the judge said, 'the grand sum for [the offending] was a slab of beer'.[11]

23 Next, the judge noted that following the applicant's release from custody in August 2011, there was a period of six years where the applicant did not commit any offending. The judge described this as 'a significant result'.[12] But, as the judge then said:

Unfortunately, nine to 12 months prior to the date of this offending, that is, April [2017], [the applicant] became homeless again, went back on the street, and his substance and alcohol issues (sic).[13]

24 The judge then referred to the evidence of Mr Simmons and Mr Jackson, before concluding that 'all of the Verdins'[14] principles are appropriate'.[15]

Here is a man who committed an offence in circumstances that one can only view as being closely connected to his cognitive impairment. It is indicative of the type of offence, and the motivation for the offence. Therefore given his cognitive impairment, and the operation of Verdins, the need, which is usually a significant and most apparent need in sentencing to pass a sentence which effects general deterrence, and indeed specific deterrence, must be moderated.

The question is, how much moderation, given the difficult balancing process with the serious nature of this criminality.

The one positive in all this is that Mr McCarthy, prior to committing this crime, spent six years without any criminal convictions, an amazing change given his background. So one must be positive, in regard to this sentencing.

Taking all the above into account, as best I can, I have concluded that I should, despite my grave reservations, accept the joint submission from the Bar table that this is an appropriate case, where a period of gaol and a community correction order should be imposed.

But again, the difficulty is the period of gaol that should be imposed, given the serious nature of this crime, and the balancing against the particular personal factors that I have rehearsed, that relate to Mr McCarthy.[16]

26 The judge then quoted from a speech said to have been given by Sir Winston Churchill in 1911, before saying:

Because of the seriousness of the offence, albeit why you committed it and your background, I have decided that you need to serve further gaol, that the offending warrants further gaol, albeit taking into account fully the matters that have been put to me.

I have determined therefore that there should be a period of gaol imposed, plus a community correction order. You have served now 292 days and I am going to order that you will serve another one year, and then you will serve a community correction order for three years.[17]

This was the maximum period of imprisonment which (together with pre-sentence detention) the judge could have imposed whilst still making a community correction order.

27 Having sentenced the applicant, the judge did not make any declaration under s 6AAA of the Sentencing Act 1991, as to the sentence he would have imposed if the applicant had pleaded not guilty. In a somewhat Delphic comment, the judge said '6AAA does not apply in these circumstances'.[18] While s 6AAA plainly had application in this case, neither the prosecutor[19] nor the applicant's plea counsel[20] took any issue with the judge's comment.

28 Under proposed ground 1, the applicant submitted that the errors made by the judge in his recitation of the applicant's prior criminal history (to which we have already referred) were fundamental, requiring the judge's sentence to be set aside and the applicant resentenced. The applicant was wrongly sentenced on the basis of a more serious prior history for violence than that which he actually possessed. Moreover, a different sentence should now be passed.

29 Under proposed ground 2, the applicant contended that the judge failed to give any, or any sufficient weight, to the applicant's plea of guilty. In support of that submission, the applicant noted that, apart from the first sentence of the judge's reasons in which reference was made to the mere fact of the plea of guilty, nowhere in the reasons did the judge say anything about the timing of the plea or what if any regard the judge had to the applicant's plea.

30 Additionally it was submitted that, while a failure to make a declaration under s 6AAA would not ordinarily be fatal to a sentence imposed on a plea of guilty, the judge's statement that s 6AAA did not apply was suggestive of a failure by his Honour to give any, or at least any sufficient, weight to the applicant's plea of guilty.

31 Under proposed ground 3, the applicant contended that the sentence was manifestly excessive. In support of that submission, the applicant relied upon the fact that his offending was 'at the lowest level for this offence'. He also relied upon:

• his early plea of guilty;
• his homelessness at the time of the offending;
• the fact that there was no evidence of any significant effect of the offence on his victims;
• evidence of his remorse as disclosed in the report of Mr Simmons;
• the significant 'gap' (six years) in the applicant's offending behaviour prior to this offending; and
• the applicant's cognitive deficits and psychological impairments.

32 While it was submitted that the total sentence imposed was manifestly excessive, in his submissions the applicant concentrated on the length of the term of imprisonment, rather than the length of the CCO or its conditions.

33 The respondent accepted that the judge made the errors identified by the applicant in his submissions under proposed ground 1. The respondent submitted, however, that leave to appeal should be refused on this ground because the errors could not be said to have had a material effect on the sentence imposed. The respondent contended that a fair reading of the judge's reasons reveals that it was the effect of the prior conviction for armed robbery that was the judge's primary concern when he considered the applicant's prior criminal history.

34 The respondent dealt with proposed grounds 2 and 3 together. Proposed ground 2 was submitted to be a particular of proposed ground 3. That said, the respondent submitted that it could not be contended that the judge gave no weight to the applicant's plea of guilty. This submission was made notwithstanding the acknowledged absence of any specific reference in the judge's reasons dealing with what if any account the judge had taken of the plea of guilty.

35 As to manifest excess, the respondent submitted that, while the applicant's offence 'was not a serious instance of attempted armed robbery', it was still a 'serious offence'. Moreover, when all of the relevant circumstances were considered, it could not be said that the sentence imposed was wholly outside the permissible range.

36 In our view, the applicant has made out proposed ground 1. There is also considerable force in the complaint made by the applicant in proposed ground 2.

37 The judge sentenced the applicant on an incorrect understanding of the applicant's criminal history - and one that involved the applicant having a more significant history for violence than he actually possessed. Moreover, we are left with the impression that the applicant was sentenced as an offender who had not made an early plea of guilty and not shown remorse. Having regard to the circumstances of this case, it was (to say the least) surprising that in his reasons for sentence the judge made no reference to the applicant's plea of guilty and how that plea mitigated the sentence that was to be imposed.

38 Additionally, in light of the prosecutor's concession before the judge (and the respondent's concession in this Court) that the objective seriousness of this offending was at the lower end of the spectrum for attempted armed robberies, it seems to us that the applicant was sentenced without due regard to his immediate and frank admissions, his early plea of guilty, or any remorse. The sentence imposed by the judge could well have been imposed on an offender with the applicant's background, who had chosen to contest the charge laid against him and pleaded not guilty.

39 The applicant has persuaded us that there is an error in the sentence imposed by the judge.[21] Moreover, having regard to the circumstances of the offending and the circumstances of the applicant (which include the years he was offence-free before becoming homeless), we are persuaded that a different sentence should be imposed.[22] In these circumstances, it is not necessary for us to consider the applicant's complaint of manifest excess.

40 All that said, the offence of attempted armed robbery is undoubtedly serious. But that is only one of the matters to be taken into account in the sentencing synthesis. When one looks at the applicant's reasons for offending, his circumstances and the very much unsophisticated and low-level nature of his offending, one is driven to the conclusion that, notwithstanding the seriousness of the offence of attempted armed robbery, a different sentence from that imposed by the judge should now be imposed. In the circumstances of this case (described by the judge as 'very unique')[23] we would set aside the term of imprisonment imposed by the judge and, in its place, impose a term of imprisonment of 12 months. We would otherwise confirm the CCO imposed by the judge and all other orders made by his Honour.

(1) The application for leave to appeal against sentence is granted.

(3) The sentence of imprisonment imposed by the judge is set aside and, in its place, the applicant is sentenced to a term of imprisonment of 12 months.

(4) All other orders made by the judge (including the CCO and its terms and conditions) are confirmed.

42 Pursuant to s 18(1) of the Sentencing Act 1991, we will declare that the applicant has served, as pre-sentence detention, 356 days in custody as a period of imprisonment already served under this sentence. For the avoidance of doubt, it is our intention to make orders that will result in the applicant's release from custody on 21 April 2018, and that he then commence to serve the CCO imposed by the judge.

[1] See ss 75A(2) and 321P(1) of the Crimes Act 1958.

[2] DPP v McCarthy (Unreported, County Court of Victoria, Judge McInerney, 8 February 2018) ('Reasons').

[14] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[19] Not counsel who appeared in this Court.

[20] Again, not counsel who appeared in this Court.

[21] See s 281(1)(a) of the Criminal Procedure Act 2009.

[22] See s 281(1)(b) of the Criminal Procedure Act 2009.

[23] Reasons [9]. A description the gist of which, if not the language in which it was expressed, we agree.