R v Austin [2002] VSCA 138

Court of Appeal (Vic)|2002-08-27|Before: WINNEKE, P. and CHARLES and VINCENT, JJ.A.

Criminal law - Sentence - Judge calling for pre-sentence report without informing parties - Failure to call for submissions before or after receipt of report - Discretion miscarrying - Appellant re-sentenced.

On 24 October 2001 the appellant, Jason Austin, pleaded guilty in the County Court to one count of theft and one count of attempted armed robbery. He admitted a large number of previous convictions dating back to 1992, which convictions appear to have been mainly recorded in the State of Western Australia, where he was then living. He is now 27 years of age and is of Aboriginal descent. Drink is a large problem with him, as are, I would think, his addictions to substances generally.

Each of the offences to which he pleaded guilty was committed in the evening of 19 March 2001, and each was committed in Fitzroy in the vicinity of Brunswick Street. His Honour described the offending in the following way:

"These offences were carried out within 20 minutes of each other on the evening of 19 March 2001 and near a convenience store in Fitzroy. In committing the first offence you simply walked to the door at about 10.30 p.m. with a number of items of food and drink and simply walked out, brushing aside an employee who tried to prevent you from leaving without paying. Some 20 minutes later, in the company of one Terik, ... you accosted a married couple who had just left a nearby restaurant to go to their car. As the man reached the door of his car you approached him within arm's length with a beer bottle in a brown paper bag in your right hand and a large-bladed knife in your left hand. You demanded that he give you the keys to the car and prodded him in the ribs with the knife, although it did not cut him or his clothing. The man stepped back and threw his keys away and you and [your companion] walked off."

His Honour had before him a report from the forensic psychologist, Bernard Healey, which made somewhat pathetic reading. Clearly the appellant suffers from paranoid schizophrenic-like tendencies, which are probably induced or exacerbated by his poly-substance abuse, including alcohol. As one might expect, he is of very low intellect and incapable of employment. He needs support. Mr Healey agrees that the support needed is of an urgent kind, and he also proffered the view that prison was going to be of little use to the appellant's reclamation. In fact, by the time the plea was heard the appellant had been in custody for more than seven months. Counsel who appeared for the appellant before the sentencing judge referred to the fact that the appellant had been in gaol for more than seven months at that time and that his condition had by then stabilised. He also referred to the fact that constant and stable accommodation was available where treatment and medication could be supervised and continued.

The attitude adopted by the prosecutor on the plea was encapsulated in an exchange between the sentencing judge and the prosecutor in the following form:

Prosecutor: "Your Honour, the Crown sees that he does deserve a bit of a chance. There is clearly a risk that he will be back again, but he deserves a chance, in the Crown's submission." His Honour: "What does that translate to? Are you suggesting that he undergo an immediate custodial sentence or not?" Prosecutor: "No, Your Honour. He has served 219 days. No, Your Honour, we don't submit that."

It appears from his Honour's sentencing remarks that, without informing counsel, his Honour called for a report to see whether or not the appellant was a suitable candidate for a combined custody and treatment order. A report was furnished to his Honour suggesting that the appellant was not suitable, but that report was not made available to counsel, who apparently heard of it for the first time when his Honour imposed sentence. Just why his Honour had called for the report is somewhat obscure to me, having regard to the nature of the sentence which he eventually imposed. Nevertheless, his Honour's failure to advise counsel of the fact that he was proposing to call for a report, and his failure to advise counsel of the report's existence and content before sentencing, was a breach of the rules of fairness: R. v. Wise[1] and R. v. Hogan[2].

Notwithstanding the stand taken by the prosecutor, his Honour sentenced the appellant to three years' imprisonment on count 2 and three months' imprisonment on count 1, and he directed that the appellant serve a period of two years before becoming eligible for parole. His Honour declared that the period of 220 days had already been served by the appellant in custody pursuant to that sentence. It is against these sentences that, with leave granted by a single judge of this Court, the appellant now appeals to us.

The respondent agrees that the failure by the judge to apprise appellant's counsel of the receipt of the report, and his failure to invite submissions in relation to the same, amounts to a denial of fairness in the sentencing process and re-opens the discretion to this Court.

Mr Thomas, who appears for the appellant here, has submitted that we should adopt a view in relation to re-sentence which is different from that adopted by his Honour and more in line with the view that had been adopted by the prosecutor. He submits that we should re-impose sentences which will release the appellant from custody as soon as possible so that the appellant's reclamation can be continued within the community subject to some suitable supervision, in essence, by the Adult Parole Board. In this respect it should be noted that the appellant has now served nearly 18 months of the sentences which his Honour has imposed, and we also note that, following imposition of those sentences, the appellant was sentenced, I think by the Magistrates' Court, to a further term of ten months' imprisonment for breaches of sentences which had been suspended, but that those ten months, as we are now informed, were ordered to be served concurrently with the sentences which his Honour imposed. Those concurrent sentences have now been served. We are told that pursuant to his Honour's sentences the appellant would become eligible for release in March of next year. Mr Coghlan on behalf of the respondent submits that this Court should re-sentence on the basis that the appellant should be released from custody as soon as possible, but under some supervision.

9 In the circumstances I would myself re-sentence the appellant as follows: on count 1 - one month's imprisonment; on count 2 - two years' imprisonment. The total effective sentence would therefore be two years' imprisonment. I would order that the appellant serve a minimum period of 18 months' imprisonment before becoming eligible for parole. I note that he has already served some 525 days pursuant to the sentence imposed, which effectively means that he has a very short period to serve before he becomes eligible for release on parole.

The formal orders of the Court are as follows:

The sentences imposed by the County Court are quashed. In lieu thereof this Court imposes the following sentences: on count 1, one month's imprisonment; on count 2, two years' imprisonment. The total effective sentence is therefore one of two years' imprisonment. The Court directs that the appellant serve a period of 18 months' imprisonment before becoming eligible for parole.

Pursuant to s.18 of the Sentencing Act 1991 we declare that the appellant has already served 525 days pursuant to the sentence that we have imposed.

[2] Court of Criminal Appeal (Vic), unreported, 2 December 1993.

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Judgment (18 paragraphs)

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