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[2004] VSCA 213
Court of Appeal (Vic)
2004-11-30
WARREN, C.J., BATT and EAMES, JJ.A
Original judgment source is linked above.
CRIMINAL LAW - Appeal against sentence of a trial judge pursuant to leave under s.582 Crimes Act 1958 - Whether sentences imposed were manifestly excessive - Whether sentence amounted to an "extraordinary sentence" - Whether too much weight was attributed to appellant's prior convictions - Whether sentences imposed were disproportionate to the gravity of the offences - Whether the judge erred in considering the period of breached parole - Sentencing Act 1991 s.16(3B) - appeal dismissed.
1 The appellant, Craig David Greenslade, appealed against sentence, leave having been granted by a single judge pursuant to s.582 of the Crimes Act 1958.
2 The appellant was convicted after a two day trial in the County Court at Melbourne on 13 November 2003 on two counts of theft of a motorcar (Count 1) and a motorised scooter (Count 3) and one count of burglary of the shop from which the scooter was stolen (Count 2). Both theft and burglary carry a maximum sentence of ten years[1]. The appellant admitted 85 prior convictions and 7 findings of guilt from 17 court appearances between February 1986 and February 2002, the majority of the convictions being for theft and burglary. He had been sentenced to terms of imprisonment on 13 of those appearances.
3 The circumstances of the conviction were that on 20 February 2003 the appellant and his co-offender, Kelly Denise Tiernan, entered a shop at 179 Victoria Avenue, Middle Park, known as "Albert Park Inline Skate Shop" at about 6.25 am. Witnesses observed the appellant leaving the shop at that time through the bottom half of a glass door that was broken. He was observed to be carrying a motorised fold-up scooter (the events constituting Counts 2 and 3). The appellant was then observed to run to a red Holden Commodore car parked at the front of the shop and enter the driver's seat. The vehicle had been stolen from South Melbourne earlier (the event constituting Count 1). When the appellant entered the vehicle, a blue Holden Commodore, in which the co-offender Tiernan was seated, was parked behind the red vehicle in which the appellant was seated. The two vehicles were observed to drive off. Witnesses noted the registration numbers of the vehicles and informed the police.
4 Subsequently, the red Holden Commodore was set ablaze at another location. The appellant was charged with the offence of criminal damage by fire (the event constituting Count 4). He was acquitted at trial of that charge.
5 On the plea, the sentencing judge received a psychologist's report, a drug alcohol counsellor's report and letters concerning the circumstances and the impact of the sentence on the appellant and the contribution by the appellant to a rehabilitation program whilst in custody.
On 12 December 2003, the appellant was sentenced to 12 months' imprisonment on Count 1 (theft), six months to be served cumulatively on Count 2, two years' imprisonment on Count 2 (burglary); and six months' imprisonment on Count 3 (theft). The sentence gave rise to a total effective sentence of two years and six months with a non parole period fixed at 18 months. The sentencing judge ordered that the sentence be served cumulatively with any further period that may be imposed by the Adult Parole Board. A pre-sentence detention period of 29 days was declared.
The present offences occurred on 2 February 2002 whilst the appellant was on parole for the sentence imposed by the County Court on 18 November 1996. Section 16(3B) of the Sentencing Act 1991 operated such that, because the present offence was committed whilst the appellant was on parole, the present sentence is to be served cumulatively upon the appellant's service of the period of parole imposed by the Adult Parole Board, save, of course, unless the sentencing court directed otherwise on the basis of exceptional circumstances. The appellant's parole was cancelled on 26 February 2003.
8 The conviction and sentencing record of the appellant is somewhat complicated. On 24 April 2003 he was convicted in the Magistrates' Court of theft of a motor vehicle and sentenced to imprisonment for a period of 90 days with 69 days of that period suspended and the remaining 21 days ordered to be served immediately. On 11 July 2003 the appellant was released again on parole. On 26 February 2004 the appellant was convicted in the Magistrates' Court of theft of a motor vehicle, going equipped to steal, careless driving and failing to give a name and address. He was sentenced to an aggregate four months' imprisonment. As a consequence of the breach of the sentence ordered to be suspended on 14 April 2003, that sentence of 69 days was wholly restored. The provisions of s.16(3B) of the Sentencing Act were invoked in relation to both offences. On 5 May 2004, parole was cancelled a further time.
9 Hence, there were three sentences affecting the appellant for the purposes of the appeal. The Court was informed that, at the time of the appeal, the appellant was subject to imprisonment for a total period of four years and 72 days, that the non-parole period was calculated at 18 months and 69 days and that the appellant will be eligible for release on parole on 30 June 2005. The sentence will expire on 3 January 2008.
10 The appellant was born on 16 February 1968. He is aged 36 years. He was 34 at the time of the offences. The appellant's personal circumstances were that his parents separated when he was ten years old. He often changed schools as he was passed between his parents and eventually left school after completing Year 10. The appellant was assessed in a psychologist's report as being of high average intelligence. He was diagnosed as having a substance dependent condition recognised by the Diagnostic and Statistical Manual of Mental Disorders 2000 (DSM IV) . He has been on a Methadone programme.
11 The appellant worked for two years after leaving school and then was injured in a car accident that was said to affect his working capacity thereafter. He was said to have encountered difficulty in adjusting to life in the community after his various terms of imprisonment. The appellant had two previous substantial relationships and had fathered two daughters, who are now teenagers, from the first of those relationships. Despite an endeavour to have access to his daughters it appeared to have failed because of the attitude of the appellant's former partner. After release from custody in June 2003, the appellant formed a relationship with a partner who has children with whom the appellant has bonded well. All of these matters were before the sentencing judge.
12 The circumstances of the co-accused are relevant to the appeal. The co-accused, Tiernan, was aged 29 years at the time of sentence. The judge below sentenced the appellant and the co-accused at the same time. His Honour noted that Tiernan was relatively young, had been involved in a relationship with the appellant that had since ended, that Tiernan was employed part-time as a cleaner and was the mother of two young children, aged seven and eight at the time. His Honour noted the difficult circumstances of the co-accused with respect to custody and access of her children and the effect of the former relationship with the appellant in that regard including the background of the appellant. It seemed that Tiernan lost the custody of her two children and was able to have supervised access only with them. The sentencing judge noted that Tiernan was free from drug use at the time of sentence and, significantly, that she was at an important point in her life when choices needed to be made. That matter together with the desire of Tiernan to act as a mother to her children and to build a life that was free from crime were taken into account by the judge.
13 Tiernan was sentenced (having been charged with the same offences and counts as the appellant):
- on the count of theft (Count 1), six months' imprisonment;
- on the count of burglary (Count 2), nine months' imprisonment[2];
- on the count of theft (Count 3), three months' imprisonment.
Tiernan was acquitted on the fourth count of criminal damage. The sentencing judge ordered with respect to Tiernan that four months of Count 1 be served cumulatively on Count 2; that the sentence on Count 3 be served concurrently with the other sentences, giving rise to a total sentence of 13 months. Eight months of that period was suspended for a period of two years and Tiernan was ordered to undergo an immediate custodial sentence of five months.
14 In the course of submissions on the plea for the appellant his prior convictions were discussed and his Honour commented on the sentence imposed on conviction on 18 November 1986 of eight years with a minimum term of three years. The length of the period of parole was relied upon in submissions before the sentencing judge to support submissions as to the attempts by the appellant to rehabilitate himself. In the course of an exchange, his Honour described the particular sentence as "extraordinary". In view of the approach taken on the grounds of appeal to the reasons of the sentencing judge with respect to the appellant and Tiernan it is helpful to summarise those remarks. His Honour described the circumstances of the offences and then observed that the appellant had numerous prior convictions, had been sentenced to custodial sentences many times and that those prior convictions limited the degree of leniency that could be extended to him. His Honour observed that the prior convictions of Tiernan were insignificant when compared with those of the appellant. Notwithstanding the re-offending of Tiernan the sentencing judge took account of her single court appearance, her relative youth and her personal circumstances as described already.
15 In the context of considering a submission on behalf of Tiernan that the sentencing judge should impose a sentence upon her that would have been imposed in the Magistrates' Court, namely, a non-custodial sentence with respect to both the burglary and the car theft, his Honour remarked, among other matters, that burglary is a "particularly prevalent" and "annoying" offence. After referring to the impact on the victim of the car theft, the sentencing judge said:
"I have reminded myself of the higher courts statistics relating to burglary and theft. I note the median time for burglary has carried a mean term of imprisonment of something like 15 months, although not every year; and that car theft has often resulted in a median sentence of eight months."
16 The sentencing judge then proceeded to set out the personal circumstances of the appellant as described already. His Honour described the prior conviction history of the appellant including the breach of parole and the consequential serving of two extra months of imprisonment. The sentencing judge also said:
"By reason of s.15(3)(b) [sic] of the Sentencing Act 1999, any sentence that I impose must be served cumulatively on any sentence you may be asked to serve by way of your parole being cancelled. I bear that in mind."
17 His Honour then proceeded to sentence Tiernan, as described, followed immediately by the sentence of the appellant.
18 The appellant appeals against the sentence on six grounds. Ground 1 was that the sentences imposed were manifestly excessive. Ground 2 was that the sentencing judge attributed too much weight to the appellant's prior convictions. Ground 3 alleged that the sentencing judge imposed sentences that were disproportionate to the gravity of the offences in the light of their objective circumstances. Ground 4 asserted that the judge erred in not considering the period of breached parole owed by the appellant in fixing sentence. Ground 5 was that the judge erred in applying s.16(3B) of the Sentencing Act. Ground 6 asserted that the sentence was manifestly and unjustifiably disparate from that imposed upon the co-offender, Tiernan, (in other words, lack of parity).
19 Turning to the grounds of appeal, it is preferable to leave Ground 1 to the last and, therefore, I turn to the second ground, namely, the allocation of disproportionate weight to the prior convictions of the appellant. It is convenient at this point (as the appellant's counsel had prepared his submissions that way) to deal at the same time with ground 6, that is, disparity with the sentence imposed on the co-accused. It was emphasised in the course of submissions for the appellant that, whilst he had a significant prior history and the co-accused had only one prior conviction, nevertheless, the offences represented "a joint enterprise" with the benefit accruing to the co-accused. As observed above, the co-accused was sentenced to a term of imprisonment of 13 months with eight months of that period being suspended. When compared with the co-accused it was submitted that the sentence imposed on the appellant was inappropriate and disparate. It was submitted that too much weight was placed on the appellant's prior convictions.
20 In my view the sentencing judge was entitled to take into account the extensive criminal history of the appellant. His Honour made comparative remarks with respect to the history of the co-accused. However, those remarks, in my view, can be considered in the context of the comparison with the record of the appellant. As observed by Tadgell, J.A. in R. v. Cuong Manh Tien[3], significant disparity should be capable of "rational explanation". In my view the rational explanation in this case lies in the substantial differences between the criminal records of the appellant and the co-accused. Consideration of his Honour's reasons reveals that Tiernan had a number of factors that the judge weighed in her favour: her relative youth, her lesser number of convictions, her relationship with her young children, her employment and living arrangements and the impact on her life of her relationship with the appellant. The sentencing judge said of Tiernan that she was at a stage of her life when she had to make choices about the future and referred to the aforesaid factors. When the circumstances of Tiernan and the appellant are compared I do not consider that the disparity in their sentences is capable of giving rise to "a justifiable sense of grievance" or "the appearance that justice has not been done"[4]. It follows that in my view grounds 2 and 6 were not made out.
21 The third ground of appeal was that the sentences imposed on the appellant were disproportionate to the gravity of the crime. A number of factors were submitted on behalf of the appellant: that the burglary was of a shop as distinct from a residential property; that the items that were the subject of the theft had a value of $1,700.00 being for the scooter, and between $3,000.00 and $5,000.00 being for the red Holden Commodore car; that the charges could readily have been disposed of in the Magistrates' Court and were not extreme examples of the particular offences; the personal circumstances and history of the appellant and, in particular, his work history up until a car accident combined with his positive attempts at rehabilitation; and, most of all, his relationship with his partner and her children. It was submitted that these matters were not allocated sufficient weight by the sentencing judge. In my view consideration of the reasons below discloses that all of those matters were considered in the overall sentencing synthesis. In all the circumstances of the appeal, the sentences could not be described as disproportionate to the facts underlying the offences. It follows that I do not consider that ground 3 is made out.
22 I turn to grounds 4 and 5 concerned with the treatment of the breach of parole and the operation of s.16(3B) of the Sentencing Act. It was submitted that, as a result of the breaches of parole by the appellant, he is required to spend a period of more than four and half years in custody. It was submitted that, as a matter of totality, this factor should have been taken into account by the sentencing judge and that his Honour erred in not considering all the requirements of s.16(3B) of the Sentencing Act.
23 Section 16(3B) of the Sentencing Act provides that sentences for offences committed whilst a person is on parole must, unless otherwise directed by the Court because of the existence of "exceptional circumstances", be served cumulatively on the outstanding period of parole which may be required to be served. It is apparent that the sentencing judge was not urged to find exceptional circumstances in this case. Indeed, there was no submission made to his Honour to the effect that s.16(3B) was not operative. Even so, if consideration is given to the overall circumstances of the offences and as applied to the appellant, in my view there is nothing in the nature of exceptional circumstances that would warrant the exercise of the discretion under s.16(3B) in this case.
24 In my view, it is clear that the judge below took account of the operation of s.16(3B) of the Act. Indeed, his Honour specifically stated so in his reasons. As observed earlier, no submissions were made to the judge concerning exceptional circumstances for the purposes of the relevant section. In my view, in light of the overall circumstances of the offences, the prior history of the appellant and, in particular, the fact that counsel for the appellant below made submissions to the sentencing judge in relation to the anticipated parole period to be served, it is
apparent that the sentence was imposed after due regard to all the circumstances was given. When consideration is given to the submission that, overall, the sentence was manifestly excessive, I do not consider the sentences offended the principal of totality. It follows that in my view grounds 4 and 5 of the appeal were not made out.
25 I turn, finally, to the first ground of appeal, namely, that the sentence was manifestly excessive. The submissions on behalf of the appellant criticised the sentencing judge for taking into account prior court statistics that reflected certain median terms for the offences of burglary and car theft. It was submitted on the appeal that the circumstances of the appellant's offences did not represent extreme examples of the offences and that, therefore, they did not fall within or beyond the median. In the course of the reasons for sentence a further passing observation was made to the effect that the breach of parole by the appellant led to the sentence that was imposed below being served cumulatively.
26 In the course of sentencing the appellant, the judge took into account all matters that were relevant to the commission of the offences and also the circumstances of the offender, including his prior convictions. In particular, I note there were 20 prior convictions for theft and 14 prior convictions for burglary in the appellant's record of convictions before the sentencing judge. It is not apparent in my view that there was any error in the nature of manifest excess especially when the maximum penalties are considered. The sentence imposed was within range. I do not consider that the first ground of appeal was made out.
27 Accordingly, I would dismiss the appeal against sentence and order accordingly.
28 I agree with the Chief Justice, whose reasons for judgment I have had the benefit of reading in draft. I add, however, some observations of my own on the one question that I found a little troublesome.
29 The subject offences were committed on 20 February 2002. The appellant was then on parole, having been released on 1 November 1999. The commission of offences while on parole had a twofold aspect. First, it was probably an aggravating factor[5], but the sentencing judge did not treat it as such. Secondly, it makes s.16(3B) of the Sentencing Act 1991 applicable. I agree with the Chief Justice that the submission now made that exceptional circumstances existed cannot be accepted. Accordingly, the subsection operated to require the terms of imprisonment imposed on the appellant for the subject offences to be "served cumulatively on any period of imprisonment which he ... [might] be required to serve in custody in a prison on cancellation of the parole order".
30 Now, the parole order pursuant to which the appellant was at large at the time of the commission of the offences was cancelled on 26 February 2003. Had that remained the position at the date of sentence for the subject offences, 12 December 2003, that would have required the principle of totality to bulk large in the determination of the aggregate term of imprisonment for the subject offences[6], though his Honour could probably, without infringing s.5(2AA)(a) of the Sentencing Act, have borne in mind as a background fact the power of the Adult Parole Board under s.78 of the Corrections Act 1986 to release a prisoner on parole although the prisoner's parole has been cancelled on a previous occasion in respect of the same prison sentence.
31 But that did not remain the position at the date of sentence for the subject offences, for on 11 July 2003 the appellant was, pursuant to s.78 just mentioned, again released on parole. The parole order then made was not cancelled until 5 May 2004. Accordingly, the effect of s.16(3B) at the time of his Honour's sentence was as expounded by Phillips, J.A. in R. v. Orphanides[7]: his Honour was required to take into account the existence of the provision as a general sentencing consideration by
recognising what the possibilities were but without speculating as to what the Parole Board might do. His Honour complied with that. For these reasons, as well as those given by the Chief Justice, grounds 4 and 5 fail.
32 For the reasons given by the Chief Justice, I agree that the appeal against sentence should be dismissed. I have also had the advantage of reading in draft the reasons of Batt, J.A. and I agree with his Honour's observations as to the application of s.16(3B) to this case. I also agree with his Honour that the learned sentencing judge applied the section appropriately.
[1] Sections 74 and 76 of the Crimes Act 1958.
[2] The unrevised reasons for sentence of the sentencing judge stated "twelve" not "nine" months' imprisonment in relation to Count 2; however, the record of conviction recorded the sentence as "nine" not "twelve" as contained in the unrevised transcript of reasons for sentence. The reasons were revised and corrected shortly before the hearing of the appeal.
[3] [1998] V.S.C.A. 6 [40]. Note that this case may be cited elsewhere as either R. v. Cuong Manh Tien or R. v. Manh Tien Cuong.
[4] Lowe v. R. [1984] HCA 51; (1984) 154 C.L.R. 505, per Gibbs, C.J. at 610.
[5] Compare D.P.P. v. Reid [2004] VSCA 105 [18].
[6] R. v. Ulla [2004] VSCA 130 [1] and [37].
R
Greenslade [2004] VSCA 213