R v Schneider [2007] VSCA 103

2 I would refuse the application for leave to appeal. These are my reasons.

3 In August 2006, the applicant, Mark Schneider, pleaded guilty in the County Court to single counts of the following offences: aggravated burglary (count 1),[1] armed robbery (count 2),[2] attempt to obtain property by deception (count 3),[3] obtain property by deception (count 4),[4] possession of a drug of dependence (count 5).[5] He admitted some 18 prior convictions from four previous court appearances over the period February 2004 to September 2005. Most of those offences related, in one way or another, to the misuse of motor vehicles. Once he was sentenced to a period of imprisonment wholly suspended, which order he breached and then breached again by committing the instant offences. Once he was sentenced to be released on an intensive correction order, and the instant offences occurred within the period of the operation of that order.

4 On 17 August, the applicant was sentenced as follows:

count 1: two years and six months' imprisonment;

count 2: two years and six months' imprisonment;

count 3: six months' imprisonment;

count 4: 12 months' imprisonment;

count 5: a fine of $200.

The learned judge cumulated three months of the sentence on count 3 and nine months of the sentence on count 4 on the sentence passed on count 2, this resulting in a total effective sentence of three years and six months' imprisonment. He fixed a non-parole period of two years and made certain consequential orders.

5 The applicant applied for leave to appeal against sentence. On 8 December 2006, Callaway JA refused the leave sought. Thereafter the applicant elected to have his application for leave to appeal determined by the Court of Appeal and so the matter is before the Court today. The applicant relies upon three grounds in support of his application. I shall set them out later in these reasons.

The circumstances of the offences

6 In early January 2006, the applicant and two other men contemplated making a "run through" of the house of a man named Whiting. The men believed that Whiting was dealing in drugs and that they would be able to steal cash and drugs from him. The men inspected the premises externally on 3 January 2006.

7 The following day they disguised themselves with bandannas and caps. Harrison, one of the men, armed himself with a baseball bat. The third man, Van Scoy, drove his co-offenders to Whiting's home. After they had arrived, Harrison forced entry through the front door by the use of a baseball bat. These were the circumstances of count 1.

8 I turn to the circumstances of count 2. Harrison and Van Scoy entered Whiting's bedroom. Whiting and his girlfriend were in bed. The men demanded "the fucking drugs". Whiting told them he had none, so then a demand was made for his money. They seized his wallet, which contained, amongst other things, his credit card. Meanwhile, the applicant was elsewhere in the house, searching for other items of value. He stole jewellery to a total estimated value of $5,525, of which some only was later recovered. Whiting, his girlfriend and his brother were in the premises at the time of the robbery. Whiting and his girlfriend were shocked and scared by what occurred. The brother was told by Van Scoy that it had nothing to do with him.

9 I go to the circumstances of count 3. Van Scoy drove his co-offenders to an ATM in Heathmont. The applicant attempted to withdraw $1,000 in cash, using Whiting's credit card. Because Whiting had the sense to cancel his Keycard in the interim, and despite him having been intimidated into disclosing his PIN number, the applicant's attempt to obtain cash failed.

10 The men returned to a unit in Bayswater. Van Scoy soon left. The applicant set about practising Whiting's signature. Then he drove to a branch of the bank where Whiting did his business. He said that he was Whiting, explained that he did not have his credit card, and was permitted to sign a withdrawal slip, so obtaining $3,000 in cash. These were the circumstances embraced by count 4.

The aftermath of the offending

11 Van Scoy was arrested in the early morning of 5 January 2006. He made full admissions. Harrison was arrested a little later that day. He also made full admissions. Each of Van Scoy and Harrison, although contrite for what they had done, emphasised a belief that Whiting was a drug dealer, who was making money out of the misery of others.

12 The applicant was arrested some days later. A small quantity of cannabis was found in the car in which he was apprehended. In a record of interview, he admitted possession of the cannabis (this was the subject matter of count 5), but denied other offending. The gist of what he said was that the co-offenders, but not he, had entered Whiting's home; there had not been any pre-planning; he knew nothing about Whiting's wallet, or about the withdrawal of $3,000 from Whiting's bank account. These denials were, it must be said, bare-faced lies. Be that as may, ultimately the applicant pleaded guilty to the various offences, that being on 21 July 2006, the day on which the matter was called over.

Sentences passed on Van Scoy and Harrison

13 Although no complaint is directly made of want of parity in sentencing, it is desirable to note the dispositions passed on the applicant's co-offenders. Each of Van Scoy and Harrison was presented on three counts; that is, counts 1, 2 and 3, preferred also against the applicant. Van Scoy was sentenced to two years' imprisonment on each of counts 1 and 2, and to six months' imprisonment, of which three months was cumulated, on count 3. The total effective sentence of two years and three months' imprisonment was wholly suspended for two years and six months. Harrison was sentenced to two years and six months' imprisonment on each of counts 1 and 2, and to six months' imprisonment, of which three months was cumulated, on count 3. The total effective sentence was two years and nine months' imprisonment. The learned judge set a non-parole period of 15 months. Harrison, it is convenient to note, had seven prior convictions from three court appearances between December 2001 and April 2004. Once he had been released on a community-based order; otherwise fines had been imposed. Van Scoy, on the other hand, had no prior convictions.

Ground 1: "The learned sentencing judge erred by attaching too little weight and failing adequately to reflect in the sentences imposed the applicant's (a) youth and (b), by reason of (a), his prospect of rehabilitation."

14 Counsel for the applicant submitted that his client was aged 22 at time of offending and 23 at sentence. He was a youthful, though not a young offender, and rehabilitation of such offenders is one of the great objectives of the criminal law. The learned sentencing judge had recognised that objective in the sentence which he had passed on Van Scoy; but he had passed it by, or at least given it insufficient weight, when sentencing the applicant. That was so despite the applicant being immature for his age and thus a person whose youth was not simply to be measured in years of life. The judge had said nothing about rehabilitation discretely with respect to the applicant. Finally, if the judge had accorded sentencing weight to the applicant's youthfulness, it was only in respect of what his Honour regarded as a lower than usual non-parole period.

15 In R v Mills,[6] Batt JA implicitly accepted three general propositions concerning the sentencing of youthful offenders, a class extending beyond young offenders as defined by s 3(1) of the Sentencing Act 1991. The propositions were as follows:

"(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)"

16 In R v Giles,[7] however, his Honour emphasised that those propositions cannot be applied in every case. Callaway JA made the same point in R v Tran[8] when he said:

"The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important."

17 Much depends, then, upon the circumstances of the particular case, by which I mean both the circumstances of the offence and of the offender. All the circumstances will dictate, in the case of a youthful offender, whether, and the extent to which, prospect of rehabilitation should be accounted a pivotal position in the sentencing process.

18 In the present case, it is the fact that the applicant was aged 22 at the time of this offending and 23 at time of sentence. It is the fact he had not previously been imprisoned. It is further the fact that the learned sentencing judge did not discretely refer to rehabilitation when analysing the factors bearing upon what sentence should be imposed upon the applicant. But it does not follow from the sentence which his Honour passed that he did not give sufficient weight, in all the circumstances, to the applicant's youthfulness and so to the prospect of rehabilitation. Such prospect is not to be considered in a vacuum. The following circumstances appear to me to be relevant.

19 First, as the applicant's counsel accepted on the plea, a sentence of immediate imprisonment was inevitable, for these were very serious offences. It is beside the point that, as it later transpired, Whiting was convicted and punished for drugs offences. Even undesirable people may reasonably expect that they will not be subject to invasion of their homes and to threats of violence.

20 Second, although the applicant was a young man and had not previously been imprisoned, he had shown a considerable disregard for the law over a period of years. He had twice been on the threshold of imprisonment; but, having been given opportunities to rehabilitate himself, he had offended again, and in a more serious way.

21 Third, the psychologist's report was far from persuasive in advancing a case that the applicant was a good candidate for rehabilitation. Particularly where the overall circumstances suggested the importance of other sentencing considerations, the giving of primacy to the rehabilitation of a youthful offender would be less obviously appropriate if material showed that the prospect for rehabilitation was not good. In this case, the psychologist's report showed that the applicant, who was facing a court appearance in respect of serious offences, twice failed to attend an appointment. On the third occasion that an appointment was made, he did attend but arrived quite late. In the course of the consultation, he exhibited difficulties with concentration. He "stared out of the window for a large part of the consultation." Ultimately, the psychologist had to close the blinds to get the applicant's mind on the job. The applicant gave a history of some drug use for years, of binge drinking and of excessive gambling. The psychologist considered that he had "impulse control problems" and the adult sequelae of likely Attention-Deficit Hyperactivity Disorder in childhood. He required, she opined, treatment over a six to twelve-month period. Given those circumstances, the psychologist's opinion that "rehabilitation [was] likely to occur in time", and that it was likely that the court proceedings had developed the applicant's "awareness into his difficulties", seems to me to have been an expression of hope rather than expectation. Further, there was nothing before the judge to show that the applicant had embarked, or was willing to embark, upon the necessary treatment.

22 The learned judge referred to a number of aspects of the psychologist's report in his sentencing remarks. He highlighted, as I see it, circumstances which told against the applicant being a good candidate for rehabilitation. I do not think that he misinterpreted the importance of those circumstances.

23 Fourth, it is the fact, as I noted earlier, that his Honour did not specifically refer to rehabilitation, in the context of his sentencing remarks, only directed to the applicant. But the structure of his remarks does not suggest error. Before dealing with the particular circumstances of each offender, his Honour identified relevant sentencing considerations as follows:

"The relevant sentencing considerations for these major crimes include a combination of just punishment, deterrence to each of you personally as well as deterrence to others who may be minded to act as you did. The sentences should also reflect this court's disapproval of this type of violent behaviour, as well as taking the question of your rehabilitation into account."

Then he considered the circumstances of the offenders seriatim.

24 Obviously, the judge had the issue of rehabilitation firmly in mind. He mentioned it specifically in the case of Van Scoy, explaining why he considered that offender to have good prospects of rehabilitation. He did not mention it specifically in the case of either the applicant or Harrison. But it was implicit in his Honour's review of the circumstances of each of those men that he considered them not to be persons in respect of whom the prospect of successful rehabilitation was such as to be a major sentencing consideration.

25 In the event, I am not persuaded that the judge failed to accord sufficient weight to the applicant's youth and thus to his prospect of rehabilitation. I accept that, by inference, his Honour did not treat it as a, or the, principal sentencing consideration. But I see no fault in that. The circumstances of the offences, the prior offences, and the applicant's personal circumstances as revealed by the psychologist's report, in combination provided support for his Honour's approach.

Ground 2: "The order for cumulation on the sentence imposed for the offence the subject of count 4 breached the principle of totality."

26 Counsel for the applicant accepted that the conduct the subject of count 4 was sufficiently discrete to justify an order for some cumulation. He submitted, however, that, in cumulating three quarters of the sentence imposed upon count 4 on the sentence imposed on count 2, the learned sentencing judge so far departed from the principle of moderation in cumulation as to bespeak appellable error. He cited, as describing the proper approach, the reasons for judgment of Callaway JA in R v Izzard[9]. I do not think that Izzard takes the applicant very far. Callaway JA was criticising a practice of imposing a substantial sentence on one count and wholly concurrent sentences on other counts, in circumstances where the better approach would have been to impose a moderate sentence on the most serious count, lesser sentences on the other counts, and then order an appropriate measure of cumulation.

27 In my opinion, ground 2 has not been made out. The offence the subject of count 4 was truly distinct from that which preceded it. Although it grew out of the robbery, it involved distinct planning and execution. Only the applicant was involved. It was a serious offence in its own right. I could not accept that the measure of cumulation was outside what was permissible.

28 In reaching that conclusion I have not had to resolve a dispute which arose particularly in oral argument. Nonetheless, I should briefly advert to it. Counsel for the Crown submitted that, if the judge had erred by cumulating so much of the sentence passed on count 4, it was counter-balanced by him not having cumulated any part of the sentences passed on counts 1 and 2, which he might well have done. He submitted, in substance, that an error in an individual sentence, including cumulation, may be disregarded if the total effective sentence is appropriate. Counsel for the applicant submitted, however, citing Izzard, that the presence of one error is not gainsaid only because, arguably, there is an error with counter-balancing impact.

29 The submission made by counsel for the applicant was correct. But it is another question whether a revealed error will lead to a different overall sentence being passed. That, I think, was in part what counsel for the Crown was driving at.

Ground 3: "The learned judge erred in the circumstances of the applicant's case in attaching too much weight to the principle of general deterrence."

30 Counsel for the applicant submitted that his client, a youthful offender, had pleaded guilty. Although he had exhibited "a degree of disregard for the law", his prior convictions were not relevant. A term of imprisonment was the only appropriate disposition. Specific deterrence had to, and did, weigh heavily in the exercise of the sentencing discretion. That said, the sentences imposed disclosed an emphasis on considerations such as deterrence and punishment which was not warranted. The applicant was a young man of limited education who suffered from Attention-Deficit Hyperactivity Disorder. He had succumbed to drugs and alcohol abuse. None the less, these offences were the first of this kind, and the applicant had evinced a capacity for personal insight. The learned judge had so far emphasised deterrence and punishment as to have "trumped" consideration of circumstances such as the applicant's youth and rehabilitation.

31 There are a number of aspects of that submission, which is really the obverse side of the coin to the matter raised by ground 1, that I do not accept. First, the plea of guilty was late made and made in the face of an irresistible Crown case. The applicant was entitled to a sentencing discount, but the extent of the discount was another matter.

32 Second, I do not agree that the applicant's prior convictions were irrelevant. Not only did they show the applicant's continuing disregard for the law, they showed that he had been very close to actual imprisonment in the past, that he had been given opportunities for rehabilitation, but that he had not taken them.

33 Third, it is the fact that the applicant was a young man of limited education. It may also be the case that at the time of offending and at time of sentence he suffered, not from Attention-Deficit Hyperactivity Disorder but from the adult sequelae of that condition. So also, on his account, he was a drug user, a binge drinker and a chronic gambler. His drug use, extensive drinking and gambling, it might be argued, were in some sense a reflection of his youth, limited education and assumed behavioural abnormality. But if all that were so, and if the applicant had a capacity for insight - I interpolate that I am doubtful the judge made any such finding - one should have expected a good deal more than one visit to a forensic psychologist.

34 Fourth, it is the case that the instant offences were different in character from the applicant's earlier offending. On the other hand, they were serious examples, particularly, of the offences alleged by counts 1 and 2. As counsel for the Crown submitted, the aggravating feature of the aggravated burglary was the presence of Whiting, his girlfriend and his younger brother; whilst the armed robbery was a serious example of the offence because of the planning that went into it, the use of disguises, the degree of threat and terror, and the fact that it involved the invasion of the victim's bedroom whilst the victim was in bed.

35 All in all, I consider, to the extent that the sentences which the judge imposed reflected punishment, the court's disapproval of such behaviour and deterrence both general and special, rather than giving primacy to the applicant's youth and prospects of rehabilitation, that his Honour did not err. Ground 3 is not made out.

37 I agree that the application for leave to appeal should be refused, for the reasons given by Ashley JA.

38 The order of the Court is that the application for leave to appeal against sentence is dismissed.

[1] Crimes Act 1958, s 77(1). The maximum penalty is 25 years' imprisonment.

[2] Ibid, s 75A. The maximum penalty is 25 years' imprisonment.

[3] Ibid, s 321M. The maximum penalty is 5 years' imprisonment.

[4] Ibid, s 81(1). The maximum penalty is 10 years' imprisonment.

[5] Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is a fine of five penalty units.

[6] [1998] 4 VR 235 at 241.

[7] [1999] VSCA 208 at [20].

[8] [2002] VSCA 52; (2002) 4 VR 457 at 462, [14].

[9] [2003] VSCA 152; (2003) 7 VR 480 at 484-486, [20]- [23].