R v Van Staveren [2001] VSCA 41

15. 5 The facts giving rise to these offences were as follows. On 26 May 2000, at around midday, Ms Mom Kong was walking along Victoria Street, Springvale, towards her home, when the applicant and Varley were travelling down Victoria Street in a white Holden, which Varley was driving. They stopped near Ms Kong. The applicant stepped out of the car and shouted at Ms Kong, asking her the time. She then ran up behind Ms Kong, grabbed her by the back of the neck, and pushed her up against a fence. The applicant then grabbed the front of Ms Kong's neck, waved a blood-filled syringe in the air, and told Ms Kong to hand over her money or she would be stabbed. Ms Kong offered to give her assailant $100, but the applicant said "no" and demanded her handbag. She then grabbed Ms Kong's handbag, ripped it from her shoulder, and ran back to the car, and Varley drove away. The applicant and Varley then travelled to an amusement centre in Springvale Road, where they took $100 from the stolen handbag to purchase heroin. The applicant overdosed and was revived when an ambulance came. She and Varley then drove down to Spencer Street station.

18. At approximately 2.15 p.m. that day, Mrs Valerie Northam, a woman of more than 70 years, was walking along a service lane of Dandenong Road in East Oakleigh. Varley drove her car, with the applicant as her passenger, along the service lane, and stopped near Mrs Northam. The applicant stepped out, approached Mrs Northam from behind, and asked the time. Mrs Northam held out her hand to read her watch, and the applicant then seized Mrs Northam's wrist and lifted her arm high above her shoulder. She told Mrs Northam to hand over her handbag, which was on her right shoulder. Mrs Northam, however, had her umbrella in her hand and began hitting the applicant with it. The applicant said, "Don't be silly, ma'am, stop that, just give me your bag, ma'am." Mrs Northam saw that the applicant was holding a blood-filled syringe in the palm of her right hand. The applicant tried to seize Mrs Northam's handbag but was impeded by the fact that she was still holding Mrs Northam's arm with her other hand. Mrs Northam shouted for help, and her shouting attracted the attention of a man in Dandenong Road, who then ran towards the struggling pair. As the man approached, the applicant let go of Mrs Northam, ran towards Varley's car and got in, and the car then drove away very quickly.

21. The applicant and Varley then drove to Corowa, with a passenger they had picked up earlier in the day. They dropped their passenger in Corowa and returned to Melbourne the next day. Two days later, police officers visited Varley's home and found the car parked in the driveway. The applicant and Varley were both present and were arrested. When interviewed by police they made extensive admissions. The applicant admitted that on 26 May she had thought of "rolling someone" and discussed with Varley her plan to rob a person while armed with a syringe. She said that the syringe was filled with her own blood and that she had Hepatitis C. She agreed that Ms Kong would have been frightened by the syringe, and said she had selected her as her victim because "she's small and she wouldn't be able to beat me up". She also admitted attempting to rob an old lady, who started screaming, and that she had selected her as an easy target because "she was old".

24. The sentencing judge correctly said that these offences were very serious indeed, aggravated by the fact that the offenders chose vulnerable victims, and noted that the offences had been planned and premeditated. He said that the victims had suffered considerably - an understatement in light of the contents of the victim impact statements.

27. In this Court, Mr Papas submitted on behalf of the applicant that the judge had erred in not giving proper consideration to the alternative sentencing option of a youth detention order. Accordingly, it was put, the judge should have considered such an order having regard to the applicant's early plea of guilty, the absence of prior convictions, her youth, her remorse and the prospects for rehabilitation. Reference was made to what was said by this Court in R. v. Teichelman[1], in which it was emphasised that it was a grave step to impose a prison term upon a young person of previously good character. It was submitted that the authorities establish that in the case of youthful offenders rehabilitation is usually more important than general deterrence, and a youthful offender is not, if it can be avoided, to be sent to an adult prison for a first offence. It was also submitted that the learned sentencing judge ultimately imposed a head sentence that was for a period of time that could have been served by way of detention in a youth training centre.

30. The sentencing judge accepted that the applicant was remorseful, that there were prospects of rehabilitation, that she desired to cure her addiction and was seeking assistance for this purpose. His Honour had before him a report from a forensic psychiatrist, Dr J. Barry-Walsh, which stated that the applicant had a long history of difficulties, characterised by temper tantrums when young, and leading to a substantial and very volatile anger control problem. The explanation for this was to be found in her experiences at school, where she had been mercilessly bullied and teased, leading in turn to a pervasive sense of low mood and poor self-esteem. His Honour said he accepted that the applicant's intent to break her addiction to heroin was genuine and that he should seek to maximise such chances of her rehabilitation that there might be, especially in the light of her youth. His Honour accepted that prior to these offences the applicant's general reputation within the community was good. At the same time his Honour was informed by the applicant's counsel that, notwithstanding that she was at the time of the plea still only 18 years old and a first offender, she had already spent four-and-a-half months in an adult prison at Deer Park. She had not been able to obtain bail because she had no stable accommodation, her parents at first not being able to come to terms with what had happened to their daughter.

33. In these circumstances there is an abundance of authority that, for a youthful offender, rehabilitation is usually far more important than general deterrence, and that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he or she is beginning to appreciate the effect of past criminality: see R. v. Misokka[2]; R. v. Mills[3]; and R. v. Teichelman[4]. A youthful offender, the authorities clearly establish, is not, if it can be avoided, to be sent to an adult prison for a first offence.

36. Mr Papas's principal submission here is that the judge ultimately imposed a head sentence that could have been served in a youth training centre. This is unquestionably correct but, it must be said, if there was sentencing error, it was due in part to the applicant's counsel, who did not ask for detention in a youth training centre even though that option was mentioned during the plea. The offences committed by the applicant, even though an 18-year-old first offender, were very serious. The applicant's counsel sought to persuade the judge that a combined custody and treatment order should be imposed, an option which his Honour understandably rejected on the ground that the offences called for a term of imprisonment longer than 12 months. Section 18Q(1)(b) of the Sentencing Act 1991, of course, limits the imposition of such orders to cases where a term of imprisonment of not more than 12 months is being considered. Mention was also made of the possibility of a suspended sentence, but this option appears to have been rejected because of the lack of supervision. In any event, although the possibility of detention in a youth training centre was raised by the judge, neither the applicant's counsel nor his Honour appeared to show any enthusiasm for this option. In sentencing reasons, his Honour simply said that he had no alternative to the imposition of a custodial sentence considerably in excess of one year.

39. In my view it is clear that the sentencing judge, partly because of the failure of the applicant's counsel to place any reliance on a youth training centre order, did not give proper consideration to the question whether the appropriate course was for such an order to be made, rather than leaving the applicant to serve out her sentence in an adult gaol. Mr Coghlan for the Crown conceded in this Court that such a sentencing error had been demonstrated on the material. It therefore falls to this Court to re-sentence the applicant. I am not to be taken as saying that a judge should invariably order a youth training centre detention in relation to youthful offenders without prior convictions. There will, no doubt, be cases where the nature of the offences or other circumstances are such as to lead the judge to the view that only a prison term can be imposed. The present offences were themselves very serious, for the reasons already given. Had the judge given detailed consideration to detention in a youth training centre as a sentencing option but rejected such a sentence as inappropriate, it may well be that no sentencing error would have been present, notwithstanding the strength of the authorities for the view that a youthful offender without prior convictions should not be sentenced to a prison term if such a disposition can be avoided.

42. In my view, this application for leave to appeal against sentence should be granted.

45. Before a court can impose a youth training centre order, a pre-sentence report must be obtained[5]. A pre-sentence report has now been obtained from Ms Andrea Lockhart, a person authorised to make such reports. Ms Lockhart has reported that the applicant is vulnerable to the prison system, and is suitable for the making of a youth training centre order. I would therefore propose that on count 1 the applicant be detained in a youth training centre for two-and-a-half years and on count 2 for two years. The sentences should be served concurrently[6]. I propose that the Court should recommend to the appropriate authorities that the applicant should be considered for early release from detention under appropriate supervision.WINNEKE, P.:

56. The formal orders to be made by the Court are as follows:

The application for leave to appeal against sentence is allowed. The appeal is treated as having been instituted and heard instanter. The appeal is allowed. The sentences imposed below by the County Court are quashed and in lieu thereof this Court imposes sentences as follows: on count 1 - a period of two years and six months' detention in a youth training centre is ordered; on count 2 - a period of two years' detention in a youth training centre is ordered. The total effective sentence will therefore be one of two-and-a-half years' detention in a youth training centre.

We declare that the appellant has already served 298 days in custody at the Women's Correctional Prison at Deer Park. That period of custody is, pursuant to s.35 of the Sentencing Act, reckoned as time served pursuant to the orders for detention that we have made, and we direct that the declaration so made and its details be entered in the records of this Court.

The Court notes that if this appeal had not been successful, and if the orders that we have made had not been made but the sentences below had been permitted to stand, the appellant would have served the custodial portion of the sentence imposed below within some 67 days of today's date. We accordingly recommend to the relevant authorities that notice should be taken of that fact and that she be considered for release into the community at the earliest possible time in the future.

We also note that we have received a report from the person representing the Director-General of the Department of Human Services prior to making the orders that we have made. We would like to thank Ms Lockhart, who has given us that report orally, for the time and trouble that she has taken to enable us to make these orders which we have made today. We also note that her report in writing confirming the oral report which she has made to this Court today will be filed in the records of this Court.

[1] [2000] VSCA 224.

[2] Unreported, Court of Appeal, 9 November 1995.

[3] [1998] 4 V.R. 235 at 241.

[5] Sentencing Act 1991, s.32(1).

[6] Sentencing Act s.33.