R v Dudas [2003] VSCA 131

Court of Appeal (Vic)|2003-08-20|Before: WINNEKE, P., CHARLES and CHERNOV, JJ.A.

Criminal law - Sentence - Burglary, theft and arson - Offences committed when applicant on community-based order and good behaviour bond - Youthful offender with prior criminal history - Sentence of four-and-a-half years with minimum term of two years ten months not manifestly excessive.

On 3 October 2002, the appellant, then aged 20 years, was sentenced in the County Court to a total term of imprisonment of four-and-a-half years; and ordered to serve a period of two years and ten months of that term before becoming eligible for parole. That sentence was imposed for a number of offences committed by the appellant on the night of 23 April 2002 when he was aged 19 years. He pleaded guilty to those offences at the earliest opportunity and made a written statement of his offending to the police.

The appellant has - as the sentencing judge noted - a somewhat depressing criminal history. He admitted to the court 38 previous convictions from five court appearances. At the time of the commission of the offences with which we are concerned the appellant was subject to both a community-based order and a good behaviour bond granted by different courts for previous breaches of the law. His criminal history demonstrated to the judge a propensity for dishonesty and driving offences committed with complete indifference to legal sanctions imposed upon him. That history justified the comment made by the sentencing judge that:

"You are now but 19, yet have amassed a significant number of convictions for offences of dishonesty and for driving offences, the nature of which points to a generally lawless disposition."

That description has been challenged by Mr Thomas, who has appeared for the appellant in this Court today. His Honour noted, however, that, to this point, the courts had not subjected the appellant to a custodial disposition. The mercy which the courts had previously shown and the tolerance which had been demonstrated had clearly worn thin by the time the appellant stood for sentence before this experienced County Court judge.

It is necessary to say something about the offending which brought the appellant before the County Court in September 2002. He was charged with, and pleaded guilty to, five offences arising out of a criminal episode on 23 April of that year. The offences were:

Count 1 Burglary of a building in Exley Drive, Moorabbin with intent to steal.

Counts 2 and 3 Theft of various items of property belonging to two different corporate entities from the building.

Count 4 Dishonestly obtaining a financial advantage by making telephone calls whilst in the building.

Count 5 Arson of the building and property within it.

Counts 1 to 4 inclusive attract a maximum penalty of 10 years' imprisonment. Count 5 (arson, involving destruction of or damage to property) carries a maximum penalty of 15 years. The sentences which his Honour imposed in respect of those counts were as follows:

His Honour directed that six months of the sentence imposed upon count 1 (burglary) be served cumulatively upon the four years imposed on count 5. The total effective sentence was therefore, as I have said, four-and-a-half years, and his Honour directed the appellant to serve the minimum to which I have referred of two years and ten months. It is against this sentence that a judge of this Court has previously given leave to the appellant to appeal.

The circumstances of these offences are best described in the appellant's own words in the written and signed statement which he made to the police on 18 September 2002, shortly after he had been apprehended:

" My full name is David DUDAS. I am 19 years old and I am working as an apprentice chef. I have been interviewed and charged by police over my involvement in a burglary and fire at a factory at 1 Exley Road, Moorabbin earlier this year. I am making this statement of my own free will. I have not been threatened or offered any favours to make this statement. Earlier this year in April sometime I broke into a factory located in Moorabbin. The factory was at 1 Exley Road, next to the railway line. I broke in through the roof and had a look around inside the factory. I was curious as to what I would find and I was looking for something to steal. In stayed in there for about 10 minutes and then I thought about stealing the computers inside the factory. I thought I would need some help stealing the computers. I got out of the building the same way that I had got in which was through the skylight and went home. My room at 91 Spring Road, Moorabbin is only a short distance from the factory. At the time I lived there with two people, Callum RAMSAY and a girl Rhiannon. When I got home Callum was awake in his room. I knocked on his door and told him about the computers and that I wanted to steal them. I told Callum about the computers because he had been talking about wanting to buy a computer. I told Callum that we could take the computers and have two each and that we might make some money from them. My intention was to use one for school and sell the other one to pay an orthodontic bill. Callum agreed to help steal the computers and we went back to the factory. We got back into the factory through the roof. Callum knows a little bit about computers so I got him to turn them on and check them out. Once he told me that they were worth about $700 each or something we started to dismantle them. Then we opened one of the front windows, I hopped outside while Callum passed the goods out of the window. The first thing we took out were the computers, which took an hour or so. Then we took other stuff, which included stationary, printer, pens and other stuff that I can't remember what it was. We then began carrying the computers back home one by one. It would have taken about another hour and a half to get all the computers and other goods back home. We put two computers in my room and two computers in Callum's room. We made about 5 or 6 trips between our place and the factory. We went back to the factory one last time to grab the remaining bits and pieces that we may have left behind. I also took back a pornographic magazine. While we were in the factory that time I began making phone calls on the office phone to expensive sex lines. Callum made a couple of calls but then he got interested in trashing the inside of the building. Callum found a white out pen somewhere and wrote a message on the front door. I also wrote on the other front door. When I wrote that I was sorry for what we did I was referring to the burglary and theft of the computers. While I was on the phone I could hear Callum in the other office making a mess of the place. I was worried about that because I've been in trouble with the police before and thought he may have left fingerprints and footprints making the mess. I was worried that I may have left footprints walking through the mess that he'd made. I suggested to Callum that we might have to burn the place down to destroy any evidence. He didn't object to this but he wasn't exactly eager to do it either. Callum had ripped open a big plastic bag full of shredded paper and spread it by kicking it around in a back office. It looked like he thought he was in the snow. As he was doing that I repeatedly said to Callum, "Do you reckon we should do it". I was nervous about lighting a fire in the factory because I had never done anything like that before. I wasn't really that serious about it at the time. I was waiting for Callum to say yes or no to lighting it. He definitely knew that I was talking about burning the place down and he may have even said "Yes" at one stage but I can't really recall because he talks really softly. He certainly didn't try and talk me out of burning the place down. Callum and I didn't have a cigarette lighter to get the fire started so we went back home to look for one. When we got back home we were both looking for a lighter. I couldn't find one in my room, the loungeroom was too dark to look in and we didn't have a light globe in there. Callum ended up finding a lighter but I don't know where he got it from. We then went back to the factory. As far as I was concerned we were going to set the place alight together. He knew what we were looking for a lighter for, which was to burn the factory down. I never threatened him to help me he was more than willing to stick by me. When we got back to the factory I looked around for something to boost the fire and I found some liquid in a container near the toilet. I knew it was flammable from the sticker on the side of the tin. Callum was inside with me when I was spreading the liquid. You could smell it while I was spreading it around. Callum was in sight of what I was doing. By the time I had finished spreading the liquid he was ready to get out of the building through the front window. I saw him standing there waiting for me. After I had emptied the container I lit the fire with the cigarette lighter near the hallway where the shredded paper was. All of a sudden everything in front of me lit up. The way back to the window was blocked by flames and I had to get out of the building through the skylight. I then jumped off the roof quickly. We then headed off to the other side of the railway line and watched what we had done. Callum seemed quite excited because he was laughing while we were watching the fire. We waited until the fire trucks arrived and then went back home. I accept responsibility for suggesting and lighting the fire but Callum was well aware of what I wanted to do. He never disagreed with me, he found the cigarette lighter and was present at the time I lit the fire."

The sentencing judge, having referred to the circumstances that I have set out, noted for himself the fact that these offences had occurred whilst the appellant was subject to the community-based order and the adjourned bond which had emanated from the previous court orders. He also referred to the somewhat troubled personal circumstances of the appellant which had mainly derived from family difficulties which the appellant had clearly encountered. Notwithstanding these difficulties, and the fact that the appellant was living in welfare-provided housing, it was apparent that the appellant is a highly intelligent young member of our community. Indeed, his intelligence quotient puts him in the top ten percent of the members of this community. His Honour was conscious of the fact that the appellant had pleaded guilty at the earliest opportunity and had offered to give evidence against his co-offender Ramsay, the semi-literate boy who was boarding with the appellant not far from the burgled factory. The appellant, we were told, made good his promise to give evidence against Ramsay, notwithstanding that Ramsay was acquitted of the arson charge. It was, of course, the appellant who had enlisted the aid of Ramsay for the purpose of carrying the stolen goods from the factory to their combined place of abode. Although his Honour regarded the appellant's willingness to give evidence against this co-offender as a "matter of significance", he did not consider it to be, however, in the circumstances, of great weight. Having regard to the fact that the appellant had enlisted the aid of this co-offender and had encouraged his participation in the offences, it seems to me that this was a view that his Honour was entitled to take. His Honour was, of course, alert to the appellant's youth, but, because of his constant offending, his Honour had little confidence in his capacity to rehabilitate. His Honour was also satisfied, perhaps not surprisingly, that specific and general deterrence needed to be reflected in the sentences which he was to impose.

The primary ground of appeal taken in this Court (ground 1) is that the sentence imposed by his Honour is manifestly excessive. Grounds 2 and 3, asserting that his Honour had failed to give adequate weight to various aspects material to the sentencing of the appellant and excessive weight to other aspects are, as it seems to me, merely particulars of the primary ground. In addition it was asserted, under cover of amended ground 4, that the sentence imposed upon the appellant is manifestly disparate from the sentence imposed upon the co-offender Ramsay. By way of history, it should be noted that Ramsay had pleaded guilty to the offences of burglary and theft but had stood his trial on the offences of obtaining property by deception and arson. The jury convicted him of the former offence but acquitted him of the arson. The judge who sentenced Ramsay noted the significant differences between the sentencing considerations which applied to him and those which applied to the appellant. Those differences included: first, the fact that it was the appellant who broke into the factory; secondly, the fact that Ramsay had no history of prior offending; thirdly, the fact that it was the appellant who had encouraged Ramsay to participate; fourthly, the fact that the appellant was the moving spirit behind the arson, whereas the jury had acquitted Ramsay of involvement in that crime; finally, the fact that Ramsay was of low intelligence and his conceptual and comprehension powers were low and confused. These matters of difference led the judge who sentenced Ramsay to conclude that Ramsay was entitled to be sentenced on a very different basis from that which was relevant to the appellant. That judge also expressed the view that Ramsay was misled and beguiled by the more worldly-wise appellant; and that it was obviously necessary to provide support for the young first offender who appeared before him. The judge was well aware, when sentencing Ramsay, of the issue of "parity" and determined in the circumstances to release him without recording convictions against him.

Mr Thomas, who appeared in this Court for the appellant, placed emphasis upon his client's early guilty plea , his making of full confessions to the police, his willingness to give evidence against Ramsay, the fact that he did give that evidence, his client's youth and lack of previous custodial dispositions. Mr Thomas submitted that this offence should be seen in the light of his client's immaturity and incapacity to understand fully the problems he had had to face, which drove him, in circumstances of immaturity, to these criminal enterprises. His offending, therefore, ought to be seen in that light. It was put by Mr Thomas that the judge had failed to adequately appreciate what it was that was driving his client's criminal actions, and had also failed to appreciate the tension which exists between the need to reflect aspects of general and specific deterrence in sentencing youthful offenders and the countervailing need to tailor a sentence to take account of the purpose of rehabilitating such an offender as his client. The latter purpose, Mr Thomas contended, was the primary consideration to be taken into account in sentencing a person of the appellant's age and characteristics. He referred to the decisions of this Court in R. v. Mills[1] and R. v. Bell[2]. Mr Thomas emphasised the relative youth of his client, his general intelligence and his latter work record as a basis for his submission that in this case rehabilitation should have featured far more prominently in his Honour's sentencing disposition. It was far too early, Mr Thomas submitted, to be characterising the appellant as a person of "generally lawless disposition". Furthermore, Mr Thomas submitted, it was an error, in the circumstances which he was relying upon, to cumulate any of the sentences which were imposed upon his client. It was further put that the sentences which his Honour had imposed can now be seen to be far too high in the light of the sentences imposed on the co-offender Ramsay. In making that submission Mr Thomas admitted that some difference between the sentence imposed upon the first offender Ramsay and the sentences which were to be imposed upon his client was to be expected. Nevertheless, he said, the sentences imposed upon his client must engender a justifiable grievance not only in the appellant but also in the eyes of the objective bystander. He referred to the case of Lowe v. R.[3]

Notwithstanding the eloquence of Mr Thomas's submissions, I am far from persuaded that his Honour's sentencing discretion has miscarried. True it may be that the appellant can be characterised as a youthful offender, but he was not a "youthful first offender" of the type who has come under this Court's consideration in cases such as Mills and the cases which have followed Mills. True it is, also, that the appellant has not before been sentenced to a term in prison, but his Honour was entitled, in my opinion, to come to the view that the time for merciful dispositions was up in respect of this appellant, who had demonstrated a clear inclination not to "mend his ways" and, indeed, had effectively been "thumbing his nose" for some time at the opportunities which had been previously afforded to him to terminate his criminal activities and to put his obvious God-given talents to law-abiding pursuits. In short, I have little doubt that this very experienced sentencing judge was entitled to regard this man as a poor prospect for rehabilitation having regard to his well-embedded lawless disposition. I do not share Mr Thomas's view that his Honour was not entitled to so regard this young man. The offences which he committed were premeditated and serious and his deliberate decision to burn down the factory to better prevent his own detection can only be described as an act of breathtaking delinquency. The sentences which his Honour imposed for these offences were, in my view, measured and well within the range of those available to him, as was the minimum term which he ordered to be served. Furthermore, I am not persuaded that the sentences are in any relevant sense manifestly disparate from those imposed upon the co-offender, who did not stand for sentence on the most serious offence of arson. The judge who sentenced Ramsay displayed towards him, as a first offender, the same leniency which has been extended - perhaps too often - to this appellant in the past. Making the comparison between Ramsay and the appellant which was made by the judge who sentenced Ramsay, that judge was entitled, I think, to conclude that he should extend to Ramsay the leniency he did without offending the principles of sentencing parity. In my opinion, no objective bystander would quibble with - let alone share a sense of grievance over - the fact that the appellant received the disposition he did and that Ramsay received the disposition which he received from his judge. In short, there was no basis for rational comparison.

It follows from what I have said that I do not accept the submission that the sentences imposed on the appellant were manifestly excessive or that any of the other grounds of appeal has been made out. I would accordingly dismiss the appeal.

The formal order of the Court is that the appeal is dismissed.

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