R v T G [2008] VSCA 83

3 The appellant was granted leave to appeal his sentence by Chernov JA on 16 November 2007. There is no need to canvass the grounds of appeal as the respondent has conceded that the sentencing judge made errors in the course of sentencing. It is further conceded by the respondent that by reason of those errors the appellant must be re-sentenced by this Court. That concession is made appropriately.

4 The appellant pleaded guilty to 15 counts, the subject of presentment number C0605023. In addition he pleaded to three counts, the subject of presentment number U00564522. He also pleaded guilty to three summary offences; two of driving whilst disqualified and one of driving at a speed in excess of the speed limit.**

**5 Presentment C0605023 dealt with a series of offences committed by the appellant between 2 January 2004 and 2 November 2005. The circumstances of the offending behaviour of the appellant, the subject of that presentment are as follows.

6 In the afternoon of Friday 2 January 2004, the appellant attended at the**

Monash Medical Centre in Clayton. He entered an office and removed a purse and contained within that purse was an ANZ Visa Card belonging to the owner of the purse. Later on the same day, the appellant used the ANZ Visa Card to obtain from a number of merchants goods valued in the sum of $403.95. These events formed the subject of count 1 on the presentment, a count of obtaining property by deception.

**7 On the night of 21 September 2005 the appellant entered as a trespasser a building in Downing Street, Oakleigh, which building was used as a mechanical workshop. Prior to entering the premises, the appellant disconnected the telephone lines which had the effect of disabling the external alarms and surveillance cameras. These circumstances comprised the subject of count 2 on the presentment, a count of burglary. Whilst upon the premises, the appellant stole four pistols and a quantity of ammunition from locked firearm safes, two notebook computers, five bottles of scotch whisky, three mobile telephones, two digital cameras and two credit cards, amongst other items. The firearms were removed from the safes which the appellant opened by use of an angle grinder and drill. The stolen goods were then placed in a Nissan Skyline motor car, valued at $45,000, which was upon the premises and which was stolen by the appellant. These circumstances formed the subject of count 3 on the presentment, a rolled-up count of theft.

8 On 22 September 2005 credit cards stolen from the mechanical workshop were used by the appellant to obtain goods from various merchants. The goods so obtained were valued in the sum of $6,662.50. These circumstances formed the basis of a rolled-up count of obtaining property by deception (count 4). On the same day, the appellant attempted to use the stolen credit cards to make purchases. His attempts to purchase were unsuccessful because the cards were not accepted. These events formed the subject of count 5 on the presentment, a count of attempting to obtain property by deception.

9 On 3 October 2005 the appellant stole the front and rear number plates from a motor car which had been parked at the East Ringwood Railway Station (count 6).

10 On Monday 10 October 2005 the appellant participated in the theft of a Ford Fairmont Sedan from the carpark at Clayton Railway Station. His participation in this matter was the subject of count 7, a count of handling stolen goods.

11 On Tuesday, 1 November 2005 the appellant together with an accomplice stole a 1984 Toyota Cressida Sedan from the Monash council carpark in Glen Waverley (count 8).

12 Between 1 November 2005 and 2 November 2005, the defendant was armed with the four pistols stolen from the mechanical workshop, being the subject of the theft alleged by count 3. These events formed the subject of count 9, a prohibited person carrying a registered firearm.

13 Soon after midnight on Wednesday 2 November 2005, the appellant, together with an accomplice, one Andrew Johnson, drove the Toyota Cressida car which had been stolen from the Monash council carpark on 1 November 2005 to premises in Noble Park. At the time the appellant and his accomplice were armed with pepper, chilly flakes, two balaclavas, a role of duct tape, gloves, a mask, a .22 Smith and Weston pistol (which had been stolen previously by the appellant - count 3) and an extendable baton. The appellant and his accomplice put on their balaclavas and turned off the electricity to the unit which they were about to enter. That caused the only occupant of the premises to come outside of the unit. That occupant, Brooke Scanlon and her boyfriend, Ngoc Nguyen, had a history of heroin dependence and Nguyen who was a small time trader in heroin kept heroin from time to time at the premises occupied by Brooke Scanlon. The appellant and his accomplice were aware of this fact. When the occupant of the unit, Brooke Scanlon, came outside she was grabbed by the appellant and his accomplice and told not to scream. She was told that if she did what was asked of her she would not be hurt. She broke away and ran down the driveway but was chased and grabbed by the hair and forced back into the unit. The entry into the unit in these circumstances by the appellant formed the subject of count 10, a count of aggravated burglary.

14 Inside the unit, the appellant's accomplice bound Scanlon's wrists with duct tape. This matter formed the subject of count 11, a count of false imprisonment.

15 After being so bound, Scanlon was asked the whereabouts of the money and in due course she directed the appellant and his accomplice to a nearby couch from which they removed the sum of $400. The appellant had a pistol down the front of his pants and on several occasions pointed it at Scanlon. However he did tell his accomplice not to hurt her. The appellant and his accomplice then forced Scanlon into the bedroom with them whilst they searched through drawers. Fearful for her own safety, Scanlon told them that there was heroin beside the television and also in a drawer. These and other items of her property were found and seized by the two burglars. As these events were taking place, Scanlon's boyfriend Nguyen arrived in his vehicle. As he stepped into the hallway of the unit, Nguyen was confronted by the appellant's accomplice, Johnson, who was holding a samurai sword which apparently had been found by him on the premises, and by the appellant holding the handgun which he had brought to the premises. The appellant and Johnson ordered Nguyen to go to the bedroom and to give up his 'money and gold'. The appellant then obtained $400, gold jewellery, three mobile phones and eight grams of heroin, the property of Scanlon. These events formed the subject of count 12, a count of armed robbery.

16 The appellant then taped Nguyen's hands with the duct tape, thereby falsely imprisoning him (count 13). In company with his accomplice who assaulted Nguyen with the baton, the appellant punched Nguyen in the face with a clenched fist. This circumstance was the subject of count 14, a count of attempted armed robbery. At about this time, Nguyen grabbed the samurai sword from Johnson. Johnson rushed at Nguyen who swung the sword at him on a number of occasions. In consequence of injuries thereby received Johnson collapsed on the floor. He died at the scene. The appellant left the premises with the property the subject of the robbery referred to in count 12. Upon leaving the premises, the appellant retained possession of the heroin which he had stolen from Scanlon and Nguyen (count 15 - possess a drug of dependence). In consequence of the altercation with Nguyen the appellant also suffered injuries and was later taken to hospital by his mother. Subsequently he was arrested by police at hospital on 2 November 2005.

17 Presentment Number U00564522 related to two counts of theft and one count of burglary. On Saturday 29 October 2005, the appellant stole a WRX Subaru Sedan, valued at $25,000 which was parked in the street in Mulgrave (count 1). On 1 November 2005, the appellant entered a house in Dandenong North through a rear sliding door which he opened with a screwdriver. Once inside the house, the appellant ransacked it (count 2 - a count of burglary). Whilst in the premises the appellant stole a large number of items including $5,000 in cash and other items estimated by the owner to be valued at approximately $8,000 (count 3 - theft).

18 As stated above, and at the time of pleading guilty to the counts on both presentments referred to above, the appellant pleaded guilty to summary charges of driving a motor car whilst disqualified on 29 October 2005 and 1 November 2005. In addition he pleaded guilty to driving a motor car at a speed of 130 kilometres per hour in a speed area limited to 70 kilometres per hour on 1 November 2005.**

**19 The appellant was born on 28 May 1986. He was 20 years of age at the date of sentence and is now 21 years of age. He is the only child of honest and hardworking parents of Greek extraction. Regrettably, and notwithstanding the loving environment in which he was reared, he commenced to misbehave whilst at secondary school. Shortly before attending secondary school he was diagnosed as suffering from ADHD and was prescribed the drug Dexamphetamine. He commenced secondary school at Salesian College but by reason of smoking marijuana and also by reason of truancy he was expelled from that school. This appears to have coincided with a time in which his father was diagnosed as suffering from cancer. The diagnosis of his father's illness caused considerable family trauma. The appellant was then sent to the Frank Dundas Sports Academy which appears to have been a highly disciplined sports focussed educational institution. However his behaviour continued to deteriorate. By reason of that deterioration his parents requested assistance from the Department of Human Services and he was placed 'in care' at a home in Noble Park operated by the Berry Street charitable organisation. It would appear that the appellant was in the care of the Department of Human Services from the age of 14 years to the age of 17 years. However his behaviour became more unsettled and he commenced to use drugs and engaged in criminal conduct.

20 In April 2000 at the age of 13 years the appellant was sentenced by the Children's Court to be released on a youth supervision order for 12 months with a special condition to undertake drug and alcohol counselling. This order was made in relation to sundry offences including seven charges of theft, four charges of burglary, two charges of destroying property, using a drug of dependence namely heroin, unlawful assault and being an unlicensed driver.

21 On 20 October 2000, and then aged 14 years, the appellant was before the Children's Court and dealt with for charges of robbery and theft. Three months later he was sentenced to be released on a youth supervision order on three charges of theft. On 4 December 2001 at the age of 15 years the appellant was sentenced to 6 months' detention in a youth training centre in relation to a number of offences including four charges of theft, assault with a weapon, burglary, handling stolen goods, two charges of attempting to commit an indictable offence, three charges of unlicensed driving and exceeding the prescribed blood alcohol concentration limit three hours after driving a motor vehicle. In February 2003 at the age of 17 years the appellant was convicted before the Children's Court of offences including seven charges of theft, using a drug of dependence, namely heroin, possessing property suspected of being the proceeds of crime, reckless conduct endangering life, unlicensed driving and going equipped to steal. He was sentenced to a term of detention in a youth training centre for six months.

22 On 27 June 2003 the appellant again appeared before the Children's Court and was sentenced to be released on a youth supervision order for eight months in relation to charges including theft, handling stolen goods, and a number of traffic offences. On 29 July 2003, at the age of 18 years and at the Magistrates' Court at Dandenong the appellant was sentenced to a term of detention in a youth training centre for a period of 18 months on five charges of theft, two charges of burglary, possessing property suspected of being the proceeds of crime, going equipped to steal and driving whilst disqualified. On appeal to the County Court the sentence of 18 months' youth detention was reduced to a sentence of 12 months' youth detention. On 27 August 2004 in the Magistrates' Court at Melbourne the appellant was sentenced to a term of 12 months' imprisonment with a non-parole period of three months' imprisonment in relation to various charges including ten charges of theft, four charges of obtaining property by deception, two charges of going equipped to steal, attempting to commit an indictable offence, two charges of resisting arrest, reckless conduct endangering life, handling stolen goods, dealing in property suspected of being the proceeds of crime and a number of motor car offences.

23 On 5 November 2004 the appellant was convicted of a number of offences including 11 charges of theft, two charges of assault with a weapon, escape, burglary, attempted theft, going equipped to steal and other more minor offences. Upon appeal from the Magistrates' Court he was sentenced to 18 months' imprisonment with a minimum non-parole term of six months to be served. It would appear that he was released in April 2005.

24 It is fair to say that at the age of 19 years the appellant had accrued an appalling criminal record for one so young. He has 136 convictions and findings of guilt arising out of 11 court appearances between August 2000 (when he was aged 14 years) and November 2004 (when he was aged 18 years). The majority of these offences are dishonesty offences including 53 theft offences and nine burglary offences. In addition, during the same period, he was convicted of, or found guilty of, 28 driving offences. Of concern is the fact that during the period in question he was found to be guilty of eight offences involving violence. As stated above, it is to be noted that on 5 November 2004 the appellant was sentenced at the Magistrates' Court to a term of 18 months' imprisonment in relation to 11 charges of theft, two charges of assault with a weapon and other offences. A non-parole period of nine months was fixed by the Magistrates' Court. This was reduced to six months on appeal to the County Court. All of the above offences (save for count 1 on presentment no. C0605023) were committed whilst the appellant was on parole in respect of that sentence.

25 As stated above the appellant was arrested by police on 2 November 2005 and has been in custody since that time. At the time of sentencing at the County Court in March 2007 a declaration was made that the pre-sentence detention was 147 days. However by reason of his breach of parole the appellant has served the whole of the 18 months' sentence imposed upon him in November 2004. That fact is relevant to the issue of totality.

26 The evidence before the sentencing judge was to the effect that the appellant had been a drug user from the age of 12 years until the date of his final arrest. The appellant entered a plea of guilty at case conference stage in the County Court. A hand up brief procedure was accepted by him at committal, thus avoiding the witnesses, and in particular the witness Scanlon, the trauma of giving evidence. There is evidence of remorse. At the time of the plea the appellant's mother gave evidence that she visited her son each weekend in prison. She said that he suffered from extreme remorse. She said:**

I think after November 2, (the appellant) has finally realised that his crime days have come to an end. That night will always play on (his) mind because he can't even talk about it without crying, without breaking down. There was a death that night and that scared (him) for months and he wants to come out and be a better person and educate himself.

27 The psychological report prepared by consultant psychologist Wendy Northey and dated 21 March 2007 was tendered upon the plea of the appellant. Ms Northey stated that the appellant expressed to her his 'deep regret about his involvement in the tragic events of November 2005 in particular'. She said:

He wishes that no one had been hurt. He states that he was not fully cognizant of the potential for matters to develop as they did over what were relatively trivial issues involving drugs and money.

(The appellant) indicates that he was personally shocked and traumatized by the extent of the violence which did occur. He is aware that his behaviour will be heavily sanctioned by the courts: he has expressed his hope that the judge will allow for some rehabilitative potential. He states that the trauma has taught him the need to anticipate consequences and to avoid situations which can get out of hand.

Ms Northey observed that the appellant had expressed his intention to make the most of his time in custody by studying and embarking upon a program of self improvement. His interest was in business studies. Ms Northey formed the view that the appellant had a good level of intellectual capacity and that his level of remorse appeared genuine. Her conclusion was that the appellant could benefit from intensive and extensive interventions aimed at facilitating his 'desperately needed rehabilitation'. The appellant outlined to Ms Northey a number of realistic educational opportunities to pursue whilst in custody including the possibility of gaining a university degree in business studies. Ms Northey noted that the appellant felt that he had matured in custody and had gained some insight into his offending behaviour and had been 'shocked into realisation that one must think responsibly in terms of consequences'. Nevertheless Ms Northey noted that the appellant required intensive psychological counselling to address personality traits evident from childhood 'namely, narcissistic traits and anti-social tendencies'. Ms Northey observed that there were indications that the appellant had the potential to rehabilitate fully and that with 'professional guidance, encouragement and self motivated effort' he was young enough to 'turn his life around'.

**28 A number of character references were placed before the sentencing judge from people who have known the appellant all his life. Clearly those references were provided by friends of the appellant's parents, but nevertheless they reflect a high degree of community support for him. In addition, at the time of his plea there was produced before the sentencing judge evidence that the appellant was studying information technology with the East Gippsland Institute of TAFE. A certificate from that Institute stated that he intended to pursue his studies and had applied to the TAFE for enrolment in the Diploma in Business. At that time he was said to be a hard-working student who applied himself to his studies. It was stated that his dedication to his studies was demonstrated by his excellent attendance.

29 Upon the hearing of the appeal we granted leave to counsel for the appellant to file supplementary material in support of his submissions on re-sentencing.[1] That material supports the evidence which was before the sentencing judge to the effect that the appellant had applied himself to his studies. In particular it is of significance that during 2007 the appellant obtained marks between 80% and 100% in four out of the six modules of the Certificate IV in Business (Small Business Management) undertaken at the East Gippsland TAFE. In addition the materials provided reveal that the appellant has undertaken and completed courses in Anger Management, and Drug and Alcohol programs. The program facilitator has endorsed the completion report for those programs with remarks which reflect a positive attitude on the part of the appellant. In particular it is said that he made 'a valuable contribution' to the course and that he shared 'some of his own experiences with the group' as well as listening to the point of view of others. The records produced to us reveal that since December 2005 the appellant has undertaken appropriate courses in prison and has been found to be drug free on testing. He has been involved in no prison incidents and has engaged in employment as a billet, supervising toys for visiting children. He is regarded by prison authorities as a quiet and well-behaved prisoner. This material provides encouragement for the view that to date the appellant has used his time in prison constructively. Taking into account his youth, this is a positive sign for his rehabilitation.

30 There can be no doubt, as is submitted by the respondent, that between 21 September 2005 and 2 November 2005 the appellant engaged in an 'orgy of criminal activity'. The offences of armed robbery, attempted armed robbery and aggravated burglary are particularly grave offences as are the false imprisonment offences. The fact that, in the case of the appellant all previous sentencing dispositions have failed to deter him from further criminal activity is a matter of concern. On the other hand the appellant is a young offender. He is entitled to the benefit of an early plea of guilty to all charges. There was some delay in the matter coming on for hearing and he has demonstrated remorse.

31 The principles of general deterrence, specific deterrence and denunciation are relevant in the task of sentencing the appellant. However his youth and immaturity at the time of the commission of the offences are also relevant matters. Indeed there is some basis to say that the nature of the events of the evening of 2 November 2005 have had such an effect upon the appellant as would justify some confidence in concluding that it will act as a significant deterrent to him in engaging in crime in the future. There is reason to think that the appellant will go on to higher study and may be able to make a contribution to society. For those reasons I consider that the interests of the community, and the appellant, justify fixing a non-parole period which is somewhat shorter than might otherwise be thought to be appropriate.

32 In all the circumstances, it appears to me that the appellant should be sentenced as follows.

Count 1 obtaining property by deception 1 month imprisonment

Count 4 obtaining property by deception 4 months' imprisonment

Count 7 handling stolen goods 6 months' imprisonment

Count 14 attempted armed robbery 9 months' imprisonment

Count 15 possessing a drug of dependence 3 months' imprisonment

(1) driving whilst disqualified on 29 October 1 month imprisonment

(2) driving whilst disqualified on 1 November 1 month imprisonment

(3) exceed 70 kilometres per hour speed limit cancel all licences and

by more than 30 kilometres per hour disqualify from driving for

36 I would direct that five months of the term of imprisonment imposed on count 2, five months of the term of imprisonment imposed on count 3, one month of the term of imprisonment imposed on count 9, three months of the term of imprisonment imposed on count 11, five months of the term of imprisonment imposed on count 12, three months of the term of imprisonment imposed on count 13, three months of the term of imprisonment imposed on count 14 of Presentment No C0605023, and one month of the term of imprisonment imposed on count 1, three months of the term of imprisonment imposed on count 2, one month of the term of imprisonment imposed on count 3 of Presentment No U00564522, be served cumulatively upon each other and upon the term of imprisonment imposed on count

**37 That makes a total effective sentence of five years' and six months imprisonment.

38 I would direct that the appellant not be eligible for parole until he has served three years of the sentence imposed.

39 I agree with the reasons of Kellam JA and with the disposition of the appeal proposed by him.

[1] The Corrections Victoria management file relating to the appellant was produced to the Court on subpoena.