R v Bowen [2002] VSCA 199

Court of Appeal (Vic)|2002-11-28|Before: CHERNOV and EAMES, JJ.A. and O'BRYAN, A.J.A.

Criminal Law - Sentencing - Unlawfully and maliciously causing an explosion - destroying a motor vehicle - Possession of explosive substances - Handling stolen goods - Total effective sentence of 3 years' imprisonment partly suspended as to 27 months not manifestly excessive - Sentence not manifestly disparate with sentence imposed on a co-accused who pleaded guilty and assisted police - Appellant entitled to sensible moderation of his sentence on account of a mental disorder.

I will ask O'Bryan, A.J.A. to deliver the first judgment.

On 17 July 2002 the appellant, now aged 21, pleaded guilty in the County Court to four counts in a presentment and admitted having appeared in a Magistrates' Court on two charges of burglary and one charge of theft and, the charges having been proved, was sentenced to be released on a community-based order. The first count presented that on 23 November 2001 the appellant unlawfully and maliciously caused by an explosive substance an explosion of a nature likely to cause serious injury to property. The maximum penalty for causing an explosion is 15 years' imprisonment. The second count presented that on the same date and at the same place the appellant intentionally without lawful excuse destroyed a motor vehicle. The maximum penalty for damaging property is 10 years' imprisonment. The third count presented that on 27 November 2001 the appellant knowingly had in his possession or under his control explosive substances, namely powergel and detonators. The maximum penalty for possessing explosive substances is 5 years' imprisonment. The fourth count presented that on the same date the appellant handled stolen goods. The maximum penalty for handling stolen goods is 15 years' imprisonment.

Following the plea the judge sentenced the appellant as follows. On count 1 to be convicted and imprisoned for three years. On count 2 no conviction was recorded. The judge was of the opinion that s.51(1) of the Interpretation of Legislation Act 1984, as explained in R. v. Sessions[1], meant that the appellant was not liable to be punished more than once for an offence arising out of the same act as the offence of causing an explosion created by s.317(2) of the Crimes Act 1958. On count 3 to be convicted and sentenced to four months' imprisonment. On count 4 to be convicted and sentenced to four months' imprisonment. No order for cumulation was made.

The term of three years' imprisonment was partly suspended as to 27 months for 18 months following release. The immediate custodial term was nine months effective on 25 July 2002 less a period of 64 days declared to be reckoned as the period of imprisonment already served under the sentence.

Initially the appellant relied upon four grounds of appeal:

1. The learned sentencing judge erred by imposing a sentence on count 1 that was manifestly disparate with the sentence imposed for this offence upon the co-accused Hubregtse.

2. The learned sentencing judge erred by failing to give sufficient weight to the appellant's serious psychiatric illness.

3. The learned sentencing judge erred by failing to place sufficient weight upon the appellant's plea of guilty.

4. The learned sentencing judge erred by imposing sentences on counts 1, 3 and 4 and a total effective sentence that were manifestly excessive in all the circumstances.

The Registrar granted leave to the appellant to add a further ground of appeal:

5. The learned sentencing judge erred by failing to place sufficient weight upon the appellant's youth and prospects for rehabilitation.

The evidence for the prosecution was that on or about 9 November 2001 the Doncaster Quarry was broken into by Derek Hubregtse and Adrian Richards and a quantity of explosives and detonators was stolen. On 23 November 2001 David Maxwell parked his company car, a 2000 Holden Commodore sedan, in the driveway of the Maxwell family home in Glen Waverley. At about 5 a.m. David Maxwell was woken by a huge explosion and glass being thrown on his bed. He found that his vehicle had been exploded and destroyed. Forensic examination of the vehicle determined that two separate high order explosions had occurred under the offside wheel arches on top of each tyre. The explosion had considerable potential for multiple deaths or serious injury to persons in close proximity.

On 26 November Hubregtse and Richards committed a burglary on a gun shop. Hubregtse was arrested on the following day for that burglary. A search of his premises found explosives which were traced to the Doncaster Quarry theft. Hubregtse made a statement implicating Richards in the quarry theft and the appellant in storing some of the stolen property. In addition he implicated the appellant in the explosion and destruction of Maxwell's vehicle by saying that it was the appellant's idea to blow up Maxwell's vehicle because Maxwell's daughter had been "unfair on him" following the rejection of his romantic advances. Hubregtse stated that the appellant prepared the explosives, placed the explosives and detonated them.

When Richards was arrested he admitted complicity in the quarry theft and said that Hubregtse told him that he had set up the bomb and that the appellant had set off the explosives.

The appellant was arrested on 28 November 2001. He made admissions about explosives being at his premises but denied knowing where they came from. He denied being involved in the explosion but admitted knowing Maxwell's daughter, having been at school with her. He said that on 23 November he was with his girlfriend all night.

Hubregtse offered to plead guilty and give evidence against the appellant on 20 February 2002 at the committal. On 6 May Hubregtse and Richards pleaded guilty in the County Court before the judge who later sentenced the appellant. Hubregtse pleaded guilty to seven counts including the quarry theft, the gun shop theft, causing an explosion and damaging property, namely Maxwell's vehicle. On count 3, the count of using explosives, he was convicted and sentenced to two years' imprisonment. On count 4, the count of destroying the Maxwell vehicle, he was convicted and sentenced to 18 months' imprisonment. Apparently the argument based upon s.51(1) of the Interpretation of Legislation Act was not raised. The sentences on counts 3 and 4 were to be served concurrently. With cumulation on counts 2 and 6 the total effective sentence became three years' imprisonment. The sentence of imprisonment was wholly suspended for two years.

Richards, who played no part in the explosives count, also received a wholly suspended sentence.

Hubregtse was given a discounted sentence because he entered an early plea of guilty and assisted the police by offering to give evidence against the appellant. On 30 May at the appellant's committal hearing Hubregtse gave evidence against the appellant. Following the committal the appellant pleaded guilty to the four counts to which I earlier referred.

During the plea three psychiatric reports were tendered. Professor Patton in early July 2002 said that the appellant's mood status was predominantly depressed over the past month with clear evidence of depressive disorder. The doctor said it was difficult in retrospect to ascertain what his mood state was in November 2001 when he was charged, but considered the appellant's mood disorder was a significant contributor to his behaviour at the time he offended. The doctor considered the severe mood disorder is best described as manic depression with phases of low mood. Dr Barry-Walsh prepared two reports, the first in December 2001, the second in April 2002. In December 2001 Dr Barry-Walsh agreed that the appellant had depressive symptoms but did not think he currently suffered from a depressive illness. He opined: "I would characterise his problems as being in the realm of the psychological difficulties that are the product of his underlying personality traits interacting with his life experiences."

In a most thorough and carefully reasoned sentence his Honour analysed the facts pertaining to the offending and the medical evidence. His Honour said that he was satisfied the appellant suffered from manic depression or bipolar disorder and that the disorder was a contributing factor at the time of the offending. His Honour also said he was not prepared to form any conclusion that the appellant was the person who placed the explosives on the wheel rims. Nor was he prepared to find that it was the appellant's idea to target the Maxwell vehicle. His Honour said these issues mattered little because the appellant "was aware of what was going to happen, he offered no resistance to the idea and he went along with it". His Honour noted that Hubregtse pleaded guilty earlier than the appellant and that on account of his cooperation with the police and in giving evidence a less severe sentence than would otherwise have been imposed was imposed. An informer's discount is in the discretion of the sentencing judge, but it is usually quite significant for sentencing purposes.

Before turning to Mr Boyce's submissions in support of the appeal against sentence it is desirable that I make some preliminary observations about the offences to which the appellant pleaded guilty. The offending the subject of counts 1 and 2 was most serious and frightening. Fortunately such crimes are uncommon in Victoria and, indeed, in other states and territories in Australia. The serious nature of such crimes would usually call for severe and fitting punishment, the important factors in sentencing being general and specific deterrence and denunciation by the court of the type of conduct in which the offender engaged. But for the special circumstances applicable to Hubregtse, which required the judge to discount his sentence, I consider it likely that he would have received an immediate custodial sentence.

I now turn to consider Mr Boyce's submission in support of ground 1. Mr Boyce argued that unjustified disparity exists between the head sentence imposed on the appellant on count 1 and the sentence imposed upon Hubregtse for the same offence and the total effective sentence in each case. The appellant was sentenced to three years' imprisonment whereas Hubregtse was sentenced to two years, and the appellant is required to serve nine months in custody whereas Hubregtse's sentence was wholly suspended.

Mr Boyce sought to argue that Hubregtse was sentenced upon the basis that his role in the explosives offence was diminished because he was not the prime offender and only went along with the appellant's suggestion to target Maxwell's vehicle. I do not accept that his Honour sentenced Hubregtse upon that basis. There is nothing in the judge's sentencing remarks to indicate he considered Hubregtse was less culpable than the appellant because his role was different. When his Honour sentenced the appellant he made it clear that he regarded the two offenders as equally responsible for the explosion and its consequences. All things being equal, co-offenders should receive the same punishment. The judge found differences which required him to impose a higher sentence on the appellant. The early plea of guilty in Hubregske's case was, the judge considered, a significant matter because it indicated limited remorse. The offer to give evidence was a very significant matter. The personal circumstances of the two offenders differed to a slight degree. The appellant had a prior criminal history and Hubregske was of good character.

In my opinion, there is no justifiable sense of grievance in the appellant. The matters to which I have already referred, the early plea of guilty and the cooperation provided by Hubregske, required the judge to be lenient with Hubregske. Notwithstanding that there was little basis for distinguishing the relative criminality of the two offenders (Hubregske and the appellant), the judge found they should be treated differently. The appellant was entitled on account of his mental disorder to sensible moderation of his sentence[2]. By reason of his being affected to some degree at the time of offending by a bipolar disorder, he was entitled to have that circumstance taken into account. The judge said: "This should have some but only very limited effect on general deterrence as an appropriate purpose of punishment."

It follows, in my opinion, that the judge was justified in imposing a higher head sentence on the appellant on count 1 than that imposed on Hubregske for the same offence and he was justified in imposing an immediate custodial sentence on the appellant and not on Hubregske. The principles enunciated in R. v. Taudevin[3] and Postiglione v. R.[4] are not applicable to this case.

Ground 3 was touched upon when ground 1 was argued. Mr Boyce submitted that the judge did not place sufficient weight upon the appellant's plea of guilty. The judge was aware of when the plea of guilty was made and it must be assumed that he took the plea into account, for his Honour said:

"In the defendant's case the plea of guilty will attract some consideration but far less than the matters affecting Hubregske's sentence. The defendant did not admit his involvement in the explosion until the indication of his plea following the committal hearing. It was essentially the evidence of Hubregske which connected the defendant with the explosion. Without his evidence the defendant would not have been under any pressure to alter the position he expressed when interviewed by police. He has done so, and some credit must be given for that. However, compared to Hubregske who immediately cooperated with police and provided the evidence to implicate the defendant, the defendant can only expect to receive limited consideration."

There is a statutory requirement that a sentencing judge have regard to a plea of guilty and the stage in the proceedings at which the offender did so or indicated an intention to do so is a relevant matter[5]. The sentencing guidelines in s.5 do not in any way fetter the discretion of the judge with regard to the plea of guilty. I am unpersuaded that the judge failed to place sufficient weight on the plea of guilty.

Ground 4 asserts that the head sentences on counts 1, 3 and 4 and the total effective sentence were manifestly excessive, principally because the appellant has to serve his sentence in prison and not in a youth training centre. I have had regard to the written and oral submissions of Mr Boyce on this ground and am of the opinion that the individual sentences and the total effective sentence were well within the range available to the judge. The sentences were not by any means excessive. Every consideration was given to mitigating circumstances such as the age of the offender, his illness, his remorse evidenced in his plea of guilty, and his prospects of rehabilitation. Nothing was overlooked by the judge. He was entitled to reject youth training centre as the appropriate disposition for the offender.

Finally, there is ground 5, which simply provides particulars of why the

sentence is said to be manifestly excessive. It too fails. It has not been demonstrated that the appellant's youth and prospects for rehabilitation were not given sufficient weight by the judge.

The order of the Court will be that the appeal against sentence in this case is dismissed.

[2] R. v. Champion (1992) 64 A.Crim.R. 244 at 254-5; R. v. Giles [1999] VSCA 208; R. v. Williams [2000] VSCA 174.

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