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[1995] FCA 411
Federal Court of Australia
1992-03-19
Hunt CJ, Allen JJ, Nicholson JJ, Gallop J
Original judgment source is linked above.
ee, including, but not limited to, psychological or other counselling, rehabilitation and/or educational programs, place of residence and/or employment. In respect of the trespass and stealing charges, there will be convictions recorded without further penalty. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) DISTRICT REGISTRY ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY No. ACT G4 of 1995 BETWEEN: JASON ALLAN DOUGLAS Appellant AND: THE QUEEN Respondent No. ACT G6 of 1995 BETWEEN: ANTHONY JOHN ALBONE Appellant AND: THE QUEEN Respondent CORAM: von Doussa, Higgins and Nicholson JJ PLACE: Canberra DATE: 4 April 1995 REASONS FOR JUDGMENT THE COURT: These are appeals from sentences imposed on the appellants on 20 December 1994 by his Honour Justice Gallop in the Supreme Court of the Australian Capital Territory. The appellant, Jason Allan Douglas (Douglas), pleaded guilty to three counts, alleging that on 1 May 1994, he: ...intentionally and without lawful excuse did destroy by means of fire, property, to wit, a 1980 Subaru Leone sedan bearing ACT registration YMZ238 belonging to Kathleen Mary Johnston. ...did enter a building, to wit, 42 Ebden Street Ainslie as a trespasser with intent to steal therein. ...did steal 1 Phillips brand colour television of the value of $300 belonging to Kathleen Mary Johnston. He also asked that seven other offences, being three burglaries and associated thefts and an attempted burglary committed on 1 and 3 May 1994, be taken into account. The other appellant, Anthony Albone (Albone), pleaded guilty to 14 counts, alleging that on various dates between 4 April 1994 and 17 May 1994, he: ... intentionally and without lawful excuse did destroy by means of fire, property, to wit, a 1980 Subaru Leone sedan bearing ACT registration YMZ238 belonging to Kathleen Mary Johnston. ... did enter a building, to wit, 42 Ebden Street Ainslie as a trespasser with intent to steal therein. ...did steal 1 Phillips brand colour television of the value of $300 belonging to Kathleen Mary Johnston. ...did enter a building, to wit, 4 Stuart Street Griffith as a trespasser with intent to steal therein. ... did steal 1 Mitsubishi brand VCR and 1 Olympus brand camera of the value of $1400 belonging to Josephine Whitton. ... did enter a building, to wit, 29 Derwent Street Lyons as a trespasser with intent to steal therein. ... did steal 1 gold bracelet and 1 Nikon camera of the value of $1700 belonging to Rhonda Lipton. ... did enter a building, to wit, 50 Derwent Street Lyons as a trespasser with intent to steal therein. ... intentionally and without lawful excuse did destroy property, to wit, 1 glass window panel forming part of the premises at 50 Derwent Street Lyons belonging to Anabelle Walters. ... did enter a building, to wit, 3 Moorehead Street Curtin as a trespasser with intent to steal therein. ... did steal twenty five dollars cash monies belonging to Tanya Stackpool and Sherif Eldin. ... did enter a building, to wit 2 Marawa Place Aranda as a trespasser with intent to steal therein. ... did steal 1 Sanyo brand cassette recorder and 50 assorted compact discs of the value of $1500 belonging to Kylie Naveau. ... intentionally and without lawful excuse did destroy property, to wit, 1 glass panel forming part of the premises at 2 Marawa Place Aranda belonging to Kylie Naveau. The first three offences alleged against both Douglas and Albone were committed by them in company with each other and two juveniles. The four other incidents giving rise to the remaining 11 counts against Albone were committed by Albone alone. The four incidents giving rise to the seven additional offences admitted by Douglas were allegedly committed in company with Albone. Albone requested that those and a further six offences be taken into account. The facts relating to the arson offence were that on Sunday, 1 May 1994, the appellants, with the two juveniles, entered the premises mentioned. The occupant of the premises, Kathleen Mary Johnston, was a widow, 81 years of age and had lived at the address for 47 years. She was absent on holidays. The offenders located and used a key to effect entry. A quantity of food and a television set were stolen. Albone found the keys to a 1980 Subaru Leone (registration no. ACT YMZ238) which was parked in the garage attached to the premises. The vehicle was then driven away by Albone in company with the other three offenders. The stolen property was taken away in the vehicle. Before leaving the premises, in an act of wanton destruction, Albone poured a quantity of Bailey's Irish Cream over the lounge room furniture and carpets. The value of the damage was $200.00. After removing the stolen property from it, the vehicle was driven to Stromlo Forest. On the way, Albone discussed burning the vehicle to prevent fingerprints being located in it. Once in the forest, all offenders except Albone alighted from the vehicle. Albone then drove the vehicle into various trees finally hitting a tree stump head-on. With the vehicle rendered inoperable, Albone set fire to cloth and paper placed inside the vehicle's petrol tank. The other three offenders watched this, although Douglas conceded that he tore up some paper to assist Albone in burning the car. The vehicle was destroyed as a result. It was valued at $2,800.00. The television set was recovered. The loss of the vehicle and the intrusion into her home in her absence caused considerable shock and distress to Mrs Johnston. When apprehended and questioned, Douglas made full admissions to police. Albone, though admitting all other offences, initially denied that he had participated in the arson offence. Douglas offered to give evidence against Albone. Indeed, he gave evidence on 14 December 1994 when arraigned for sentence which evidence clearly implicated Albone. Shortly after Douglas gave that evidence, Albone agreed to plead guilty to the charge of arson. It is not entirely clear whether the appellants volunteered information as to their own participation in offences not up until then known to police but it can be assumed that some of the offences admitted were in that category. As at 14 December 1994, Albone had spent 22 days in custody. Both appellants were, on 14 December 1994, remanded in custody until sentenced on 20 December 1994. The learned sentencing judge adopted the view that Albone's culpability in relation to the arson was greater than that of Douglas. This was a conclusion clearly open on the evidence. The appellant Douglas, at the time of the offences, was just 18 years of age (dob 5.3.76). His Honour dealt with him in the following terms: I turn to the subjective factors in relation to the accused Douglas. He was born on 5 March 1976 in Liverpool, New South Wales, which means that he was just 18 years of age when he committed these offences in May this year. He was a constant problem throughout his schooling and was finally expelled in year 9 for truancy. He had not been attending school because he did not want to. He attained no educational certificates. Throughout those years and since, he has been supported by his father who gave evidence on his behalf. Notwithstanding being a burden to such an extent that it would be understandable if the father withdrew his emotional and financial support the accused Douglas simply continued to make trouble and be a constant nuisance in the community. Drugs, of course, are blamed by him for his constant failure to obtain an education and later to maintain a job. In the course of this sort of behaviour, of course, he picked up some convictions in the Childrens Courts of New South Wales. On 6 April 1992 in Condobolin Childrens Court he was found guilty of an offence of stealing. On 3 May 1993 in Queanbeyan Childrens Court he was found guilty of break, enter and stealing, given two years probation and 50 hours community service work. So, he was on probation from the Queanbeyan Court when he committed these offences in May this year. He took no account of that circumstance when he committed all these offences. The pre-sentence report before me is to the effect that Douglas appears to feel some remorse for his offending and he expressed those feelings in evidence. He seems to have suffered a particular pang of conscience about Mrs Johnston. I accept that. He completed 50 hours of community service in Queanbeyan satisfactorily. He visited Goulburn Gaol since the commission of these offences and he is particularly worried about a prison sentence. At the time of the offences he had been living in a halfway house and other accommodation provided for him and his co-offender Albone at the community's expense. But instead of capitalising on that sort of assistance and his father's support he simply let others persuade him to commit a series of property offences of a very serious nature. The offences are so serious that notwithstanding everything that has been put on his behalf by his counsel Mr O'Donnell no further leniency can be extended to him, at least not to the extent that a non-custodial sentence could be imposed. I propose to sentence the accused Douglas to a term of imprisonment and fix a non-parole period. I am satisfied that no other punishment is appropriate in all the circumstances, having regard to the seriousness of the offences to which he has pleaded guilty and taking into account the offences on the schedule. That means that he will serve some time in gaol and if he earns parole he will then be released on a parole order. He will be out in the community on a parole order which will have conditions attached to it. If he breaches those conditions the parole order will be revoked and he will go back to prison to serve the unexpired portion of his gaol sentence. In respect of the offence of destroying Mrs Johnston's car by fire I sentence the accused Douglas to three years imprisonment. In respect of the offence of entering Mrs Johnston's house as a trespasser with intent to steal I sentence him to 12 months imprisonment. In respect of the offence of stealing the television I impose a sentence of 12 months imprisonment. All sentences to be concurrent. He has spent no time in custody in relation to these offences, except from 14 December 1994. I fix a non-parole period of 15 months. The head sentences and the non-parole period will date from 14 December 1994. Remove the prisoner Douglas. The appellant Albone, at the time of the offences, was just 19 years of age (dob 1.3.75). His Honour sentenced Albone in the following terms: ... He too was receiving community support from ACT welfare authorities at the time he committed these offences. The pre-sentence reports demonstrate that he has been a problem for his parents and welfare authorities throughout his life. He claims to have a long history of abuse of cannabis and alcohol and now wishes to be drug free. He ultimately appeared for sentence unrepresented. He is described as having a pervasive sense of sadness as well as being angry and self-destructive. I am satisfied on the evidence that he was more culpable than the accused, Douglas, and the other co-offenders in relation to the burglary of Mrs Johnston's premises and vandalising her home and car. I see very little prospect of a useful existence for the accused, Albone. I think he is likely to offend and re-offend for the rest of his life unless he himself is able to make a change. He is well entrenched in his criminal activities and I agree with the assessment of Dr Knox, consultant psychiatrist, who examined the accused, that there is not very likely to be a quick change of behaviour on the accused's part, no matter what guidance and counselling he is offered. I doubt whether he will ever accept the advantages of applying his intelligence and energy productively within society. I think he will always prefer to be destructive and selfish. In relation to the offence of destroying Mrs Johnston's motor car by fire, I sentence the accused to five years imprisonment. In relation to the second and third counts relating to the burglary and stealing from Mrs Johnston, I impose sentences of 12 months in each case to be served concurrently with the first sentence. In relation to each of the other offences set out in the indictment and to which the accused pleaded guilty; being burglary, theft and damaging property, I sentence the accused to 12 months imprisonment on each count, all to be served concurrently and concurrently with the five year sentence in relation to the destruction of the car by fire. I fix a non-parole period of two years, six months. The head sentences and the non-parole period will date from 24 November 1994. Remove the prisoner, Albone. There was, as his Honour had noted in argument, a considerable difference in the criminality exhibited by Albone as opposed to Douglas. That alone justified a lesser sentence being imposed on Douglas than upon Albone. In addition, Douglas appeared genuinely remorseful, had pleaded guilty at the earliest opportunity and had cooperated fully with police. Indeed, his cooperation extended to implicating a co-offender. Such cooperation warrants, at the least, a considerable discount in sentence: see R v Kelly (1993) 113 ALR 535, 540-2 per Mahoney JA.
In this case, the assistance was substantial. It placed Douglas at risk of reprisals and rendered it likely that he would need to be placed in protective custody. It may be that Albone's change of plea made the latter consequence less likely but Douglas did not know that when he offered co-operation and gave his evidence. It is necessary also to compare the antecedents of the offenders. Douglas had two previous convictions. The first, for stealing, was recorded on 6 April 1992 at Condobolin, New South Wales. He was then aged 16 years. The second was for break, enter and steal. It was recorded on 3 May 1993 at Queanbeyan, New South Wales. He was placed on probation for two years for the latter offence. It followed, therefore, that he committed the offences to which he admitted in these proceedings whilst on probation. Albone had only three traffic convictions and illegal use of a conveyance arising out of one incident. Convictions were recorded on 24 March 1992. By 24 March 1993, Albone had completed a 12 month recognisance to be of good behaviour in respect of those offences. Each appellant was, therefore, facing imprisonment for the first time and was for the first time being dealt with otherwise than in a Childrens Court. The two juveniles who aided Douglas and Albone were given non-custodial sentences. They were respectively aged 17 and 15 years at the time, thus a different sentencing regime, placing more emphasis on rehabilitation was appropriate. The appellants, however, were not much older. It could give rise to a justifiable sense of grievance if the sentences imposed on the various offenders were grossly disproportionate. The 17 year old was also sentenced in respect of other offences of burglary and theft. His sentence was a 64 hours attendance centre order and 12 months probation. The younger offender was ordered to perform 64 hours community service within 6 months. Douglas, following a disturbed and physically abusive family background, left home at 14 and survived virtually by himself, with the aid of youth refuges. He commenced abusing alcohol at age 11 and drugs from about 15 years. It seems that drug abuse was in fact responsible for his offending behaviour. It is, of course, not a mitigatory factor that a person commits crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted, at 105, in Talbot v R (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered: ... evaluation of moral culpability remains in my opinion as fundamental to our system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor. The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct. The appellant Albone had just recently turned 19 at the time of the offences. He was always a problem child. He began abusing alcohol and drugs at age 8. He was imposed upon sexually by a 15 year old female at this time. At age 15 he left home. He was well and truly addicted by age 13. Dr Knox, psychiatrist, considered Albone had abnormal mental conditions identified by him as Conduct Disorder and, acquired more recently, Antisocial Personality Disorder. Despite all those problems and the illicit drug taking, his criminal record is quite brief. It justifies Dr Knox's comment that these offences seem: ... atypical of his general behaviour, and represent either a particularly stressful time in his life or the influence of his companions of the time. It must be doubted whether the moral culpability of a child of 8 or 11 who, because of an abused background or other compelling circumstances, acquires a drug or alcohol addiction can be equated with that of an adult or much older juvenile who, for his or her self-gratification, chooses to experiment with illicit drugs and thus becomes addicted. So far as prospects for rehabilitation of Douglas were concerned, Ms Jones, Community Corrections Officer reported: The offender impresses as having the potential to improve his circumstances despite his limited formal education. He has taken the initial steps to abstain from amphetamine, reduce his marijuana consumption and attend drug counselling regularly. He has thought about the future to the extent that he can envisage a time when he will be drug free; and has plans to improve his literacy skills next year in order to expand and enhance his range of employment prospects. In the short time he has lived at the Half Way House he has discovered the benefits of a stable home and regular meals, and has been able to take advantage of the guidance and encouragement offered by the house staff. It seems that he has matured sufficiently to recognise that he needs help and guidance to learn to manage his life successfully and has the advantage of a caring though perplexed father. His Honour did not refer to those prospects by reason, it seems, of the following consideration: At the time of the offences he had been living in a half-way house and other accommodation provided for him and his co-offender Albone at the community's expense. But instead of capitalising on that sort of assistance and his father's support he simply let others persuade him to commit a series of property offences of a very serious nature. The offences are so serious that notwithstanding everything that has been put on his behalf by his counsel Mr O'Donnell no further leniency can be extended to him, at least not to the extent that a non-custodial sentence could be imposed. Ms Buick took the view in her report that there was a high risk of Albone re-offending. Nevertheless, he was described as: ... a young man who struggles with both a drug dependency and psychological problems. He is currently homeless and has led a transient life style for the past few years. He impressed as having a pervasive sense of sadness, as well as being angry and self-destructive. Dr Knox addressed Albone's future prospects in the following terms: The well established behavioural disturbances in this young man will mitigate against a quick change of behaviour on his part. He will need very intelligent, very flexible guidance and counselling to connect him to a straighter way of life and show him that there are advantages of applying his intelligence and energy productively within society rather than destructively in society outside of it. In addition to parole supervision at some time in the future I believe that [Albone] would benefit from the guidance of a well motivated psychiatrist used to working with such individuals. With such a contact point I believe [Albone] could begin to lay the foundations for a more mature and disciplined life, although the process will inevitably require several years. His Honour concluded from that evidence: I see very little prospect of a useful existence for the accused, Albone. I think he is likely to offend and re-offend for the rest of his life unless he himself is able to make a change. He is well entrenched in his criminal activities and I agree with the assessment of Dr Knox, consultant psychiatrist, who examined the accused, that there is not very likely to be a quick change of behaviour on the accused's part, no matter what guidance and counselling he is offered. I doubt whether he will ever accept the advantages of applying his intelligence and energy productively within society. I think he will always prefer to be destructive and selfish. In our view, this assessment was unduly pessimistic. His Honour's sentence, in any event, did allow for the prospect that Albone would spend 2 years and 6 months on parole. In the context of their criminal conduct, serious as it was, it was in our view, manifestly excessive to have imposed on these young offenders with their deprived backgrounds sentences of the length imposed. We take account of the view his Honour came to that a period of time in prison was necessary for the purposes of general and personal deterrence. The prospect of further service in prison also has a role to play in giving incentive to the offenders to engage in rehabilitative programs. It is, however, important that the offenders should commence what, in all probability, will be lengthy residential rehabilitation programs as soon as appropriate consistently with that objective. In the case of R v Richards [1981] 2 NSWLR 464, Street CJ pointed out that offenders who repeat their offences whilst on bail cannot expect to do that, "for free". Street CJ said, at 465: The only means open to the criminal courts to seek to provide this protection [that is, against persons offending whilst on bail] is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. The offender in that case had a history of similar offences and had previously been imprisoned for them. They were all offences similar to those committed by the present offenders, though greater in number and frequency. She was on parole when first apprehended. She committed further offences after being released on bail. She was sentenced to a total of 5 years imprisonment with a non-parole period of 2 years 6 months. That sentence was subject to the possibility of remissions for good behaviour and other causes. The sentences in the present case are not subject to remissions. It must be recognised that there is a retributive and deterrent aspect to sentencing offenders, particularly those who have abused a state of conditional liberty granted by reason of previous similar offences. Consideration of the need for deterrence, however, should not mandate a higher sentence than the totality of the criminal conduct warrants. Indeed, in another case to which we were referred, R v Martin, unreported, NSW Court of Criminal Appeals, Hunt CJ at CL, Enderby and Allen JJ, 19 March 1992, the majority considered the case of an offender with a worse record than either of these appellants, although being sentenced for similar offences. The offender had breached the terms of a recognisance and of parole. Some offences were being perpetrated whilst on bail. The Court supported as appropriate, total sentences of 2 years with an additional sentence of 8 months. Enderby J would have reduced the minimum term of 2 years to 12 months. In that case there were excellent prospects for rehabilitation. It should also be said that the prospect of residential rehabilitation on release from imprisonment is not to be equated with setting an offender at liberty. A person subject to such a regime may, of course, more easily abscond than a person in a high security prison. The same may be said of a prisoner in a minimum security prison. If an offender is to be deprived of liberty to satisfy the purposes of both retribution and deterrence, it is preferable that the circumstances accompanying that deprivation be as conducive as practicable to any real prospects there are of rehabilitation. This is particularly a matter which presents itself as desirable in the case of drug-addicted young offenders such as the present appellants. It was by reason of these considerations that this Court ordered that the appeals be allowed and that the sentences appealed from be set aside. In lieu thereof it was ordered that, in respect of the charge of arson, the appellant, Anthony John Albone, be sentenced to 2 years 6 months imprisonment, to date from 24 November 1994, to be released after 6 months from that date upon entering into a recognisance, self in the sum of $1,500.00, that he will be of good behaviour for a period of 3 years from the date of such release and that he will, during that period: (i) Accept the supervision on probation of the Director of Adult Corrective Services or the nominee appointed from time to time of such Director; and (ii)Obey the reasonable directions of the Director or nominee, including, but not limited to, psychiatric treatment and counselling, rehabilitation and/or educational programs, place of residence and/or employment. In respect of the trespass, damage and stealing charges, there will be convictions recorded. In view of the sentence already imposed, it is inexpedient to inflict any further punishment. It was further ordered, in respect of the charge of arson, the appellant, Jason Allan Douglas, that, in lieu of the sentences imposed, he be sentenced to 2 years imprisonment, to date from 14 December 1994, to be released after 4 months upon entering into a recognisance, self in the sum of $1,000.00 that he will be of good behaviour for a period of 2 years from the date of such release and that he will, during that period: (i) Accept the supervision on probation of the Director of Adult Corrective Services or the nominee appointed from time to time of such Director; and (ii)Obey the reasonable directions of the Director or nominee, including, but not limited to, psychological or other counselling, rehabilitation and/or educational programs, place of residence and/or employment. In respect of the trespass and stealing charges, there will be convictions recorded. In view of the sentence already imposed, it is inexpedient to inflict any further punishment. I certify that this and the 16 preceding pages are a true copy of the Reasons for Judgment of the Court. Associate Dated: 20 June 1995 ACT G4 of 1995 Counsel for the Appellant: Mr J Sabarwal Instructing Solicitors: Legal Aid Office (ACT) Counsel for the Respondent: Mr M Maxwell Instructing Solicitors: Director of Public Prosecutions
ACT G6 of 1995 Counsel for the Appellant: Mr J Sabarwal Instructing Solicitors: Porter Pilkinton & Bradford Counsel for the Respondent: Mr M Maxwell Instructing Solicitors: Director of Public Prosecutions Date of hearing: 4 April 1995 Date of judgment: 20 June 1995
R
Kelly
(1993) 113 ALR 535
(1992) 34 FCR 100