R v Airey [2006] VSCA 31

1 I invite Eames, J.A. to give the first judgment.

2 The appellant pleaded guilty in the County Court to one count of burglary, two counts of theft and one count of obtaining property by deception. Each of those offences carried a maximum penalty of ten years' imprisonment. In addition, he pleaded guilty to one count of possession of cannabis, carrying a maximum penalty of a $500 fine.

3 The dishonesty offences were committed at a residential property owned by a businessman who had employed one David Sharp. After working for the businessman for some years and gaining insight into his business and private lives, Sharp believed that his employer kept a substantial sum of cash at his home in Bacchus Marsh. Sharp knew the appellant, and upon Sharp being dismissed from his job by the businessman, he told the appellant and the appellant's co-offender, Lisa Thomas, about the hoard of cash said to be located at the Bacchus Marsh home.

4 On 8 October 2003, the appellant, who was then aged 56 years (and nearly 59 at the time of the appeal), and Thomas, who was then aged 32 years, broke into the home by smashing a glass back door. Upon entry they found no cash, but they stole jewellery, stereo equipment, computer equipment, cameras, sporting goods, telephones, and a motor vehicle. In all, the value of the stolen property was more than $16,000. In addition, the offenders stole a Commonwealth Bank Keycard belonging to a daughter of the businessman and used that later to obtain $800 cash from an automatic teller machine, employing the PIN number for the account which was with the Keycard.

5 Upon investigation, police identified the appellant and the co-offender by virtue of security footage taken when they used the stolen credit card. On 17 October 2003, the appellant was arrested and admitted the offences, but declined to name the co-offenders. The motor vehicle was recovered by virtue of his information, and when police searched his premises they found a small amount of cannabis, which was accepted to be for personal use. Some of the other property, but not all, was recovered.

6 When interviewed, the appellant said that his offending was stupid and occurred because he was "desperate for a quid". He said that he had made sure that no one was at home and he would not have committed the offences if he had thought that someone would have been present. The appellant was released on bail and his pleas of guilty were not entered until 10 June 2005. The appellant admitted 75 prior convictions from 33 court appearances. At the time of these offences he was on parole.

7 On 14 October 2005 a judge of the County Court sentenced him as follows:

Count 2 (theft): 9 months' imprisonment (this count related to all of the property apart from the Keycard);

Count 3 (theft): 1 month's imprisonment (This count related to the Keycard);

Count 4 (obtaining money by deception): 1 month's imprisonment;

Count 5 (possession of a drug of dependence) : Fined $50, without conviction.

The judge ordered that three months of the sentence on count 2 were to be served cumulatively with the sentence on count 1. The total effective sentence, therefore, was 15 months' imprisonment, and the judge ordered that seven months of that sentence be suspended for a period of three years. His Honour made an additional order, which reads as follows on the Return of Prisoner:

"As to the eight months' imprisonment to be served immediately, I direct that four months of that eight months be served cumulatively upon the unexpired part of the sentence imposed on 1 June 1996, in the event that the prisoner is called upon to serve all or part of that unexpired sentence. I otherwise direct that the sentence imposed today be concurrent with the unexpired portion of the sentence imposed on 1 June 1996."

8 The appellant, who was given leave to appeal by a judge, appeals against sentence with respect to counts 1 to 4[1] on the following grounds:

Ground 1: The learned judge erred in his approach to the possibility that the appellant's parole would be cancelled and the operation of s.16(3B) of the Sentencing Act 1991; and in particular he erred:

(a) in failing to have regard to that risk when fixing the total effective sentence;

(b) in ordering partial cumulation upon the parole sentence despite his finding of exceptional circumstances.

Ground 2: The learned judge failed to pay any or sufficient regard to the following matters:

(a) his finding as to exceptional circumstances;

(b) that the offences occurred more than two years into the appellant's three years of parole;

(c) that the appellant had otherwise successfully completed parole and had no pending matters;

(d) the prosecution's stance on sentence.

Ground 3: The sentence is manifestly disparate with the sentence imposed upon the appellant's co-offenders.

9 It was not until after he had announced his sentence that the judge had his attention drawn to the terms of s.16(3B) of the Sentencing Act 1991. On both sides it is agreed by counsel who appeared on the appeal that his Honour fell into error when addressing that provision. Mr Silbert for the Director conceded that, the complaint of sentencing error having been made out, the orders made below should be quashed and the sentencing discretion was thereupon reopened. Mr Silbert and Mr Kassimatis agreed that it was unnecessary to further address the grounds of appeal and the hearing before us therefore proceeded as a plea.

10 The major difficulty confronting the appellant in seeking leniency is his truly appalling record of prior offending. His prior convictions commenced in 1964. A few may be highlighted. In 1969 he was sentenced to five years' imprisonment, with a non-parole period of two years' imprisonment, for housebreaking and stealing and attempted housebreaking and stealing. Also in 1969 he was sentenced to five years' imprisonment with a minimum of three years, for possession of an explosive with intent to endanger life or property, and also shopbreaking and stealing and officebreaking and stealing. In July 1985 for handling stolen goods he was sentenced to seven years' imprisonment with a non-parole period of five years. In 1986 he was sentenced to eight years' imprisonment with a non-parole period of six years, for conspiracy to commit armed robbery and going equipped to steal. In 1987, for armed robbery and false imprisonment, he was sentenced to 12 years' imprisonment with a 10-year non-parole period; and on 1 June 1996 he was sentenced to 10 years' imprisonment with a non-parole period of seven years for a series of offences, including attempted armed robbery, causing serious injury intentionally and using a firearm to resist apprehension. With respect to that last sentence, he was released on parole on 25 July 2001 and was on parole when the current offences occurred. His parole period ended on 24 July 2004. Notwithstanding that fact, he remains at risk of being recalled by the Parole Board, but that has not happened to date. The fact that he is at risk in that regard is relevant as a general sentencing consideration.[2]

11 The co-offenders were dealt with in the Magistrates' Court. Sharp was fined $2,000, without conviction. Thomas was sentenced to six months' imprisonment, to be served by way of intensive correction order. The question of parity has been raised in the submissions of counsel for the appellant, and the sentence which I will propose in this case takes that factor into account and would not, in my opinion, give rise to a justifiable sense of grievance on the part of the appellant,[3] having regard to the fact that Sharp had no prior convictions, and to the fact that although Thomas did have many prior convictions, none were comparable to those of the appellant. In addition, Thomas was much younger than the appellant and had not previously been in prison.

12 Notwithstanding the prior offending history of the appellant, he had many factors which were capable of mitigating his sentence. Mr Ian Joblin provided a psychological assessment of the appellant and plainly was impressed by his frankness and sense of remorse. As emerged in that report, the appellant had a very difficult upbringing, being one of twelve siblings whose father died when the appellant was six years old. The appellant became an uncontrollable child and was placed in boys' homes from the age of eight. He has never attended secondary school. He celebrated his 17th birthday in an adult prison. He had been in prison many times and for much of his life. He had not, however, committed an offence since 1995 (although for part of the time subsequently he was again in prison). Upon release on parole in 1999 he had difficulty settling down. His wife, who gave evidence which impressed the judge, and understandably so, said that she had moved house while he was in prison, so that upon his release he would not be close to any of his old friends. In this unsettled period, and for the first time in his life, he began amphetamine use. His wife attested to the impact that that had on his stability, saying that he had been irrational and highly strung, although she did not then know the cause. Debts which had arisen due to his amphetamine use were, he told Mr Joblin, the motivation for these offences.

13 The fact that he was on parole is a most serious aggravating factor, and in my view that fact, coupled with the prior convictions, means that this is not a case where it would be appropriate to impose a wholly suspended sentence of imprisonment, as was urged on the appellant's behalf, having regard to the time already spent in custody. Nonetheless, I consider this is a case where the exercise of mercy is justified.

14 Evidence was called on the plea from the appellant's wife of 33 years, who described her dependency on her husband, who did most of the housework. The appellant's wife suffers serious medical conditions which greatly affect her mobility. The appellant was on a carer's pension, his wife on a disability pension. She said that whereas once the appellant had just treated gaol as part of his life, now he was frightened by imprisonment. His life now revolved around his adult daughters. Mr Joblin said of the appellant that he should not be considered incorrigible and he did not have an antisocial personality disorder. He was insightful, remorseful and no longer using amphetamines. When released on bail the appellant did not rush to get his case dealt with. Instead, as he freely acknowledged, he wanted to take the opportunity whilst on bail to demonstrate that he was capable of rehabilitation and to thus enhance his prospects of a more lenient sentence.

15 Called as a witness in the hearing below was one Gregory Lovett, a community development co-ordinator dealing, in particular, with Aboriginal youth. He had known the appellant for 25 years. For two-and-a-half years, that is, whilst on bail, he had been engaged as a volunteer worker with the Aboriginal community of Broadmeadows, dealing with both juveniles and adults. He attended every Wednesday and at weekends for sporting events and his role was to talk to and counsel the mainly young people. Asked about the appellant's impact and whether the fact that he had a criminal history impeded his task, Mr Lovett said, speaking for the young people: "If they can see help, they appreciate it."

16 The appellant told the police that he was an idiot for committing these offences. With some self-irony, the appellant told Mr Joblin that he was an armed robber, not a house burglar. It seems reasonable to assume, however, that his days as an armed robber are also at an end. Mr Joblin said that the appellant was enthusiastic about his role in keeping young people away from drugs and crime, and he said it was deserving of credit. I agree. It is plain that the judge below was also impressed by the appellant's efforts whilst on bail. He said that he was imposing what he called a short sentence, and I agree that it was indeed a merciful sentence, one which in fact I propose to largely replicate, although I would suspend slightly more of the sentence than did his Honour.

17 I would impose the same sentences on each count as did his Honour and also the same order as to cumulation, but I would vary the order as to the period of suspension, so that nine months of the sentence of 15 months' imprisonment would be suspended, thereby requiring the appellant to serve six months' imprisonment, rather than the period of eight months which was ordered by his Honour.

18 I agree with the proposed disposition of the appeal by Eames, J.A., and I do so for the reasons he has given.

20 Before pronouncing the orders of the Court, it is recognised that the Sentencing Act 1991 requires us to explain or cause to be explained to the appellant the purpose and effect of the proposed orders and, in particular, the consequences that might follow if he commits, whether in or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence, namely three years from 14 October 2005. The Court was given an undertaking by the appellant's counsel that he or his instructing solicitor will explain those matters to the appellant in language likely to be readily understood by him.

21 In light of that undertaking, the Court makes the following orders:

1. The appeal is allowed.

2. The sentences imposed below are quashed and in lieu thereof the appellant is sentenced to the following terms of imprisonment:

Count 1: 12 months;

Count 2: 9 months;

Count 3: 1 month;

Count 4: 1 month.

The Court directs that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, thereby making a total effective sentence of 15 months' imprisonment.

3. The Court orders that 9 months of that sentence be suspended for an operational period of 3 years.

4. The sentence is deemed to have been imposed and the operational period to have begun on 14 October 2005.

5. It is declared that the period of 133 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

[1] The Notice of Application for leave to appeal was confined to counts 1 to 4.

[2] See DPP v. Reid [2004] VSCA 105 at [18], R. v. Greenslade [2004] VSCA 213 at [31] and R. v. Orphanides [2002] VSCA 86; (2002) 130 A.Crim.R. 403, at 410-415.

[3] See R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404.