R v Squires [2001] VSCA 199

Court of Appeal (Vic)|2001-11-01|Before: CHARLES, BUCHANAN and CHERNOV, JJ.A.

Criminal law - Sentencing - Armed robbery, burglary and theft - Offences committed whilst on bail and serving community-based order - Youthful offender - Youth training centre - First incarceration - Sentence of 5 years with non-parole period of 3 years manifestly excessive - R v Mills [1998] 4 VR 235.

K. Robertson, Solicitor for Office of Public Prosecutions

The appellant, who is now 20 years old, pleaded guilty in the County Court at Melbourne on 15 January 2001 to two presentments, the first alleging one count each of armed robbery, burglary and theft, and the second alleging one count of theft and two counts of attempted armed robbery.

A plea was heard during which a report from a forensic psychologist, Mr Ian Joblin, was received and evidence was given on behalf of the appellant by his mother, Mrs Bernadette Squires. On 16 January 2001 the judge sentenced the appellant on the first presentment to three years' imprisonment for armed robbery and 12 months and six months' imprisonment for burglary and theft respectively; on the second presentment to three years' and four years' imprisonment for the two attempted armed robberies and six months' imprisonment for theft. Orders for cumulation were made as to six months of the sentence for armed robbery on the first presentment and a further six months for the first attempted armed robbery on the second presentment upon the base sentence of four years. The total effectively sentence was therefore five years' imprisonment and a non-parole period of three years was fixed.

The appellant now appeals pursuant to leave granted under s.582 of the Crimes Act 1958, the sole ground of appeal being that the sentence imposed was manifestly excessive.

The facts giving rise to these offences were as follows. On 2 July 2000 at approximately 1.30 p.m. the appellant, together with a co-accused Jamie Lee and another, went to a pharmacy in Frankston and spoke with a receptionist. At 2.30 p.m. the appellant returned to the pharmacy and again spoke briefly to the receptionist. At 2.45 p.m. the appellant returned, with Jamie Lee staying outside the pharmacy. The appellant walked straight into the pharmacy and went behind the counter in the service area. The pharmacist immediately stood up and asked the appellant what he was doing. The appellant moved directly to shelves in the storage area and took hold of a batch of Temazepam tablets, being two packets of 12 bottles of tablets. The pharmacist then attempted to stop the appellant escaping and chased him around the counter. The pharmacist pushed the appellant against a wall and there was a struggle for a few seconds after which the appellant ran for the door. The pharmacist chased him and held him in a bear hug, then pushed him down on a chair at the front of the store. At that point the appellant reached into his coat pocket and produced a pocket knife with a 3 inch blade, telling the pharmacist to "come on, come on". He then walked towards the pharmacist who moved backwards towards the counter area. At this point the appellant made his escape, picking up one of the Temazepam packets as he made his way out the door. This gave rise to the first count, armed robbery.

On 3 July at about 3.30 a.m. the appellant committed a burglary at another pharmacy in Frankston, again in company with Jamie Lee. Lee threw a rock through the lower glass panel of the front door to gain entry. They then stole three packets of Temazepam and one packet of glycade. The stolen items were dropped near to the front of the store when a security guard arrived at the scene and disturbed them as they were making their escape. The guard chased both of them away. This gave rise to the second and third counts on the first presentment.

The facts giving rise to the second presentment occurred on 30 November 2000. The appellant and Hayden Burns used some heroin that day. Then at about 4.30 p.m. they went to the railway carpark at Aspendale where they stole a red Ford Falcon motor vehicle. Access was obtained by smashing a window and they left in the vehicle with Burns driving. This gave rise to the first count of theft.

Between 4.30 and 5 p.m. the appellant and Burns entered a milk bar in Seaford. The appellant was wearing pantyhose as a balaclava covering his face and holding a flick knife with a 3 inch blade. He walked towards the counter and pointed the knife at the owner, asking him to open the till. The owner responded by producing and making to throw a cricket ball. The appellant and Burns ran from the

shop and left the scene in a stolen vehicle. These events constituted the first count of attempted armed robbery.

Shortly afterwards a woman aged 74 was walking in a carpark near the rear of some shops in Aspendale when she became aware of a man following her. She turned and found herself confronted by the appellant, standing only a few feet away holding a knife. The appellant said to her, "Look, just give me your money." the woman replied that she had no money. The appellant then called her a "fucking bitch" and ran away. These events gave rise to the second count of attempted armed robbery. Both the owner of the milk bar in Seaford and the woman just referred to were understandably traumatised by the experiences to which the appellant had subjected them.

The appellant pleaded guilty at an early stage and co-operated with the police after his arrest. Counsel at the plea relied upon these matters and the appellant's claimed remorse and deprived background. It was submitted that the appellant had good prospects of rehabilitation (which, it was argued, meant less emphasis should be placed on general deterrence), on his youth, his lack of significant prior convictions and his past efforts to overcome his heroin addiction with the assistance of his mother. It was submitted that detention in a youth training centre was the appropriate sentencing disposition. The prosecutor, however, submitted an immediate custodial sentence was warranted in all the circumstances.

At the start of the plea the appellant admitted seven prior convictions, all of which had been imposed at the Magistrates' Court at Frankston on 10 October 2000. These included two charges of being in possession of a regulated weapon, two charges of theft, and charges of attempted theft, obtaining property by deception and being in possession of a drug of dependence. For these offences the appellant was sentenced to be placed on a community-based order for 12 months, to perform 100 hours of unpaid community work, and to undergo assessment and treatment for drug and alcohol addiction. On 29 September 2000 the appellant had been committed for trial in the County Court on the three charges arising out of the events of 2 July 2000 at the two pharmacies in Frankston, and, having pleaded guilty, was placed on bail. The offences committed on 30 November 2000 were therefore committed while the appellant was both on bail and serving the community-based order.

Mrs Squires gave evidence during the plea that her son was very quiet and withdrawn, and had difficulty learning to read. He left school at Year 9 and went to Frankston TAFE to complete a one year course in literacy and numeracy. She said that her husband was a chronic alcoholic who had been abusive towards the appellant and his siblings. She gave evidence of having assisted the appellant to detoxify over a period of three to four weeks, after July 2000, at which time the appellant had some short-term employment. However when this employment ceased the appellant again became involved with his friends and drugs in the Frankston area. Mr Joblin's report described the appellant as a typical example of many young men in the area who were unemployed, bored, and had problems at home. Mr Joblin said that these difficulties seemed to be compounded by the appellant's lack of forthrightness and psychological fortitude, and limited self-esteem and intellect.

The critical question for the sentencing judge was, of course, whether to accede to the submission that the appellant should be sentenced to a period of detention in a youth training centre, which would have required a sentence of three years or less to be imposed, or whether a sentence of more than three years should be imposed, in which case a youth training disposition could not be made[1]. A most important issue in relation to these matters, particularly having regard to the appellant's age, was his prospects of rehabilitation. The judge, after referring to the evidence of Mrs Squires, said the following:

"Her account has satisfied me that you have experienced a deprived childhood, but she did not persuade me that you do have realistic prospects of rehabilitation. I am far from satisfied that after July 2000 you have engaged in any serious attempt to turn your life around. The facts are quite to the contrary. You continued to live an aimless existence, you continued to associate with bad company, you continued to use heroin and other drugs even as late as 30 November 2000 notwithstanding that on 10 October you had been placed on a community-based order with drug and alcohol conditions. Further, the November offences were committed whilst you were on bail in relation to the July offences. Accordingly, I am unable to accede to your counsel's submission that detention in a youth training centre is the appropriate disposition. Armed robbery and attempted armed robbery are serious and prevalent offences. In your case the principles of special and general deterrence are significant sentencing considerations. Despite your youth and relative immaturity, I have reached the conclusion that a term of imprisonment to be served immediately is the appropriate disposition."

In this Court, Mr Thomas for the appellant submitted that the judge had fallen into error in applying the relevant principles, placing particular reliance on what was said by Batt, J.A. in R v. Mills[2] as to the sentencing of a youthful offender. In mitigation of the appellant's role in the offences on the first presentment, reference was made to the fact that these offences were committed under the influence of Jamie Lee, an older accomplice (the judge accepted this to be so), together with the appellant's early pleas of guilty and co-operation with police. Matters aggravating the offences, however, included a measure of premeditation in the first attempted armed robbery of 30 November, the age of the victim of the second attempted armed robbery, the overall number of the offences and the fact that they were committed whilst on bail.

Mr Thomas submitted that the judge had fallen into error in applying principles of special and general deterrence and in the consideration of whether the appellant had realistic prospects of rehabilitation. The submission was that rehabilitation for a youthful offender allows for a disposition which recognises that such an offender may not have presented himself for sentence as a ready subject for rehabilitation. It was submitted that this youthful offender needed guidance and assistance and that the "individualised treatment focusing on rehabilitation" offered by a youth training centre was much to be preferred to the learning available in prison, including the harm which may flow from imprisonment, both to the youth and the community as a whole. Mr Thomas made particular reference to the fact that all the appellant's offences occurred within a relatively short span of time, were poorly planned and executed and took place at a time when the appellant's family life was substantially disturbed and in circumstances where the appellant had no prior criminal history before October 2000. These circumstances, in his submission, were indicators in favour of a youth training centre order, or alternatively justified a more optimistic view of rehabilitation than was otherwise to be inferred from the evidence.

In Mills, Batt, J.A. said[3] that on the authorities the following propositions were established in relation to the sentencing of youthful offenders -

1. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises;

2. 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.);

3. 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.

The appellant is certainly a youthful offender and he had not previously been incarcerated. Rehabilitation, in his case, was plainly to be treated as being much more important than general deterrence and there is no question that for him a sentence requiring incarceration in an adult prison was to be avoided if possible. The alternative suggested by counsel, and carefully considered by the judge, was detention in a youth training centre.

A critical issue therefore for the judge was the appellant's prospects of rehabilitation and whether he was, at the time of sentence, beginning to appreciate the effect of his past criminality. The evidence before his Honour included a spate of offences committed in the period July to November 2000, some of them very serious. For example, the maximum penalties for armed robbery, attempted armed robbery and burglary are imprisonment for 25 years, 20 years and ten years respectively. The offences committed on 2 July had involved some premeditation and the use of a knife. The offences of 30 November were much more serious, involving a disguise (and thus premeditation), the use of a knife and an attempt to rob a woman aged 74 at knife point; and the fact that these offences were committed while the appellant was both on bail and serving a community-based order made it very difficult to argue that he was either remorseful for his past wrongdoing, or beginning to appreciate the effect of his past criminality. Additional factors before the judge were Mr Joblin's rather unpromising report, and the fact that the appellant's mother had been unwilling to have him live with her or even know her address.

It is clear from a reading of the plea that the judge gave detailed and careful consideration to all the matters now argued on behalf of the appellant, including the evidence of Mrs Squires and her recounting of the appellant's unhappy home life, and the intolerable psychological and physical abuse to which he had been subjected by her husband. His Honour accepted that the appellant had a deprived childhood and gave emphasis to his early pleas of guilty, his co-operation with police and his age and immaturity. But the judge was not persuaded that he had realistic prospects of rehabilitation, or that he had engaged in any serious attempt to turn his life around.

19 In these circumstances I do not think any error is to be found in the judge's decision to reject the alternative of a youth training centre order. The judge's task was a very difficult one, as the President also said in granting leave to appeal under s.582. But there is a further issue under the ground of manifest excess. The appellant is young and immature and has a very deprived background. He had not previously been incarcerated. The third proposition mentioned by Batt, J.A. in Mills includes two considerations highly relevant to the present case: first, that the assessment of what is serious as justifying adult imprisonment may be higher in the case of a youthful offender; and secondly that where an offender has not previously been incarcerated, a shorter period of imprisonment may be justified.

In my view, notwithstanding the seriousness of the appellant's offending, a head sentence of five years in an adult prison was, with respect, excessive for a young and immature offender who had not previously been incarcerated, given also his early pleas of guilty, his remorse (his mother's evidence that he was distraught about his treatment of the old lady was not challenged), and his co-operation with the police, including identifying a co-offender. I would therefore allow the appeal on the ground of manifest excess.

The appellant has now spent 11 months in custody in an adult prison. The sentence I propose would, in effect, offer him one last chance to rehabilitate himself, with such assistance as can be gained from supervision under parole. On the first presentment I would substitute a sentence of 18 months on the first count, armed robbery, in lieu of the sentence of three years. On the second presentment I would substitute sentences of 18 months and two years on the second and third counts, each of attempted armed robbery, in lieu of the sentences of three years and four years. I would leave standing the present orders for cumulation of six months on Count 1 of the first presentment and Count 2 of the second presentment. The sentences on both presentments should otherwise be concurrent. The total effective sentence would therefore become three years' imprisonment. I would fix a non-parole period of 12 months.

Before I pronounce the Court's orders, Mr Squires, would you stand up please.

25 Do you understand what the Court is proposing to do? We're going to allow your appeal. We are going to reduce the head sentence that is imposed on you to three years and we're going to fix a non-parole period of 12 months which means that you will become available for parole, subject to the views the Parole Board takes, in something like one month's time. Do you follow that?

You realise that your past behaviour has been appalling and not least the attempt you made to rob an old woman of 74 with a knife is among the worst of those offences. You follow that?

You follow that you have to stay away from heroin and from other drugs?

You realise that you've got to stay away from people like Jamie Lee and Hayden Burns?

What is happening today is that you are being given one last chance. If you threaten people with knives or with other weapons, in future you're going to be spending a long time in gaol and your life is going to be completely ruined. You're going to be under parole for as much of the two years as the Parole Board allows. People will be keeping a careful eye on you, and the police will be watching out for you, and if you break your parole you are going to go back, going to be spending the rest of those two years in an adult prison. This is your last chance and we hope you take it.

The orders of the Court then are as follows: The appeal is allowed. The sentences below are set aside.

On the first presentment the appellant is sentenced as follows: On Count 1 to 18 months' imprisonment, on Count 2 to 12 months' imprisonment and on Count 3 to one month imprisonment.

On the second presentment the appellant is sentenced as follows: On Count 1 to six months' imprisonment, on Count 2 to 18 months' imprisonment and on Count 3 to two years' imprisonment.

The Court orders that six months of the sentence on Count 1 of the first presentment and six months of the sentence on Count 2 of the second presentment are to be served cumulatively upon the sentence imposed on Count 3 of the second presentment and upon each other. The sentences are otherwise to be served concurrently. The total effective sentence is therefore three years and the Court fixes a non-parole period of 12 months.

The Court declares that the period already served up to this day under this sentence is 334 days and directs that it be noted in the records of the Court that this declaration has been made and its details.

[3] [1998] 4 VR at 241. Phillips, C.J. and I concurred in this judgment.

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