Court of Appeal (Vic)|2013-08-22|Before: Mr P, Priest JA, Buchanan JA

Youil v The Queen [2013] VSCA 228 (22 August 2013)

DPP v Youil (Unreported, County Court of Victoria, Judge Chettle, 30 May 2012

2 Pursuant to leave granted by a judge of this Court on 23 May 2013, the appellant appeals against sentences imposed upon him by a judge of the County Court on 30 May 2012.

3 For reasons that follow, I would allow the appeal and resentence the appellant in the manner I will later set out.

4 On 19 April 2012 the appellant pleaded guilty to aggravated burglary (charge 1), false imprisonment (charge 2) and armed robbery (charge 3). The maximum penalty for both aggravated burglary and armed robbery 25 years' imprisonment, and for false imprisonment 10 years' imprisonment.

5 On the charge of aggravated burglary a sentence of four (4) years and six (6) months' imprisonment was imposed; on the charge of false imprisonment, two (2) years' imprisonment; and on the charge of armed robbery, five (5) years and six months' imprisonment. The judge ordered that 12 months of the sentences on the aggravated burglary and false imprisonment charges be served cumulatively on each other and with the sentence on the armed robbery charge. Thus the orders for cumulation produced a total effective sentence of seven (7) years and six (6) months' imprisonment, on which the judge fixed a non-parole period of five (5) years and six (6) months' imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty he would have imposed a sentence of nine (9) years' imprisonment with a non-parole period of seven (7) years.

6 The facts may be briefly described. On 3 November 2011 at about 10:00am, the appellant broke into a residential property in Bundoora, carrying a knife (charge 1, aggravated burglary).[1]

7 Not long afterwards, at about 11:00am, the occupant of the house, Ms Kar Yan Kay, came home. Upon arrival she saw the appellant standing in the dining room and she began to scream. The appellant approached Ms Kay armed with the knife and imprisoned her in a rear bedroom in the house (charge 2, false imprisonment). He demanded, and was given, Ms Kay's handbag and mobile phone (charge 3, armed robbery). The appellant also removed a camera from a cabinet while Ms Kay was still in the bedroom.

8 A DNA analysis of blood that the appellant had left at the house as a result of cutting himself entering through a window he had smashed led to his detection.

9 The appellant was arrested and interviewed by police on 16 December 2011. He told police that he did not specifically remember the incident, but he denied having used a knife. The appellant claimed that as a result of a head injury and alcoholism he forgot many of his daily activities for periods of up to a week at a time.

10 Counsel submitted that the offending was in the context of a burglary 'gone wrong' which turned into an armed robbery. The appellant was not carrying the knife for the purpose of committing an aggravated burglary, and he did not recall pointing a knife at the victim. The victim had not mentioned a knife in her victim impact statement, but then gave evidence of a knife being used by the appellant in the course of the committal hearing. This had led to a contested committal and explained why the guilty plea was not made earlier.

11 It was submitted that there was a significant ten year period between 1995 and 2005 when the appellant did not serve any time in prison because he was married with three children. When his wife left in 2005, he relapsed into taking heroin and offending to support this addiction.

12 Defence counsel argued that Verdins[2] principles applied as a result of the appellant having recently been diagnosed with a long-term mild-moderate acquired brain injury ('ABI') which affects his judgment. A psychological report by Dr Chris O'Halloran (Exhibit 1), and a report by Mr Jeffrey Cummins (Exhibit 2), were tendered in support of this submission, and indicated that the ABI is a result of poly-drug abuse, alcoholism, and possibly a police assault. Mr Cummins also provided the opinion that the appellant has become institutionalised.

13 With respect to his history and antecedents, it was put that the appellant believed that he had been abused by priests in a Catholic institution, although he did not remember which institution. During his 20s, the appellant's mother took up with a man, who became a good step-father to the appellant. After two years, however, that man died. This caused the appellant, who was then 24 years old, to 'go off the rails' and start using heroin (where previously he had only used cannabis). Between 1995 and 2005, during his second marriage, the appellant was taking methadone, was off heroin, and was not offending. With the break-up of that marriage, the appellant was homeless and started using heroin again. Most of the offending in the appellant's history was drug related. A recent urine screen, however, tested negative except for methadone.

14 In 1998 and 2000 the appellant had myocardial infarctions. He is on medication for his heart condition. The appellant is in protection in prison because he was assaulted by another prisoner.

15 Various certificates relating to training and courses completed whilst on remand were tendered (Exhibit 3).

16 It was submitted that there is a large degree of concurrency between the offences. Counsel conceded, however, that a term of imprisonment was appropriate; but it was submitted that any sentence should not be crushing since Verdins principles applied, and premeditation was absent in the offending.

17 The victim impact statement made by Ms Kay was filed as Exhibit B. It indicated that the victim has become scared of strangers and since the burglary was scared of going home alone. She feels afraid when there are noises at her house, she is afraid to answer her doorbell, she is scared of seeing strangers in her front yard and seeing people walking on the street near her house.

18 Defence counsel's submission that the plea was made at an early stage, notwithstanding there having been a committal, was not challenged.

19 The prosecutor submitted that if the sentence is to be moderated by operation of Verdins principles, the moderation should be minimal, because the level of dysfunction or disability experienced by the appellant is mild to medium and is exacerbated by the appellant's own drug and alcohol use.

20 It was submitted that community protection is an important consideration, particularly as the offending occurred in a private home.

21 The sentencing judge noted that the victim is now fearful at home and outside, and is hyper-vigilant, as a result of the offending. It was remarked that the appellant's criminal history was extensive, relevant and appalling. The appellant had spent 18 years of his life in prison, together with time in youth detention. He claimed to have experienced sexual abuse by carers as a young man. His life was clearly ruined by illicit drugs, and his extensive criminal history is mainly attributable to heroin addiction.

22 When his second marriage foundered in 2005, the judge said, the appellant relapsed into heroin use and re-offending after a relatively offence-free period of ten years. The appellant has not seen his three children since 2010.

23 The appellant's ABI was taken into account although his Honour noted that it is significantly self-induced, is mild to moderate, and only moderates general deterrence to some extent.

24 It was accepted that the guilty plea was made at an early stage.

25 The judge noted that the offending was serious. Although his Honour also accepted that the offending arose in the context of a burglary gone wrong, the appellant broke into the house intending to steal, and used a knife to imprison and rob the victim in her own home.

26 His Honour said that the appellant's prospects for rehabilitation were very poor. He had a history of continuous reoffending, and lacked any stabilising influences in life.

27 As to imprisonment, the judge found that the appellant's heart condition will make his time in custody more onerous, and his time in custody thus far was more difficult because it was spent in protection as a result of an assault in prison.

28 Leave to appeal was granted on a single ground which asserts that the individual sentences, orders for cumulation and non-parole period have produced a sentence which is manifestly excessive. (A second ground, which alleged that the sentencing judge erred in moderating the sentence because of the appellant's ABI and its effect on moral culpability, did not attract a grant of leave and has not been further pursued.)

29 The judge's description of the appellant's prior convictions as 'appalling' was apt. He has multiple priors for burglary, theft, obtaining property by deception, handling stolen goods, going equipped to steal, dealing with the proceeds of crime, armed robbery, robbery in company, assault, weapons and firearms offences, and drug offences. His history demonstrates that he has been little deterred by previous sentences passed upon him. He has breached parole, failed to answer bail, and has breached community based orders and suspended sentences of imprisonment. Indeed, he was on a suspended sentence for burglary at the time he committed the present offences. He is, it would appear, incorrigible.

30 I approach the issue of manifest excess in the manner discussed by Young CJ in R v Kenny:[3]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[4] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

31 Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[5] Thus a sentence will only be regarded as manifestly excessive if it is so far outside the range of those sentences properly open as to bespeak error.[6]

32 That having been said, it is noteworthy that when pronouncing orders for cumulation the judge made a curious statement. He said that 'to a large extent, Charge 3 [armed robbery] relates to [the appellant's] implementation of Charge 1 [aggravated burglary]'. What the judge meant to convey by this remark is somewhat opaque, since it does not appear to have been suggested at any point that the appellant entered the premises with an intention to commit an armed robbery. The armed robbery appears to have been opportunistic, in the sense that the victim arrived home after the appellant had entered the house with - as the Indictment put it - 'intent to steal'.

33 Be that as it may, however, in my opinion there is much to be said for the proposition that the conduct making up the false imprisonment was part and parcel of the armed robbery. That being so, the order that 12 months of the sentence on charge 2 be served cumulatively on charge 3 led, in my view, to a total effective sentence - and, concomitantly - a non-parole period, which are manifestly excessive.

34 Moreover, even having regard to the appellant's extremely bad record, I think that the sentence of four (4) years and six (6) months' imprisonment on the aggravated burglary charge, in circumstances where the intent was to steal, and where there was no evidence that the appellant contemplated confronting the occupant of the house,[7] is manifestly excessive.

35 In the result, I would allow the appeal. I would substitute a sentence of three (3) years imprisonment on charge 1, but otherwise confirm the individual sentences on charges 2 and 3. Making the sentence on charge 3 the base sentence, I would order 12 months of the sentence on charge 1 to be served cumulatively on other sentences. That produces a total effective sentence of six (6) years and six (6) months' imprisonment, on which I would fix a non-parole period of four (4) years and six (6) months' imprisonment.

36 Section 6AAA of the Sentencing Act 1991 requires the Court, if it imposes a less severe sentence than it would otherwise have imposed because of the guilty pleas, to state the sentence and non-parole period that it would have imposed but for the plea of guilty. Given that any sentence now passed must represent an instinctive

synthesis of all relevant factors, and given that the court cannot look at mitigating features in isolation, s 6AAA requires the Court to indulge in a somewhat artificial (although legislatively mandated) exercise in order to apply it.[8] Doing the best I am able, I state that, but for the appellant's pleas of guilty, I would have imposed a total effective sentence of eight (8) years' imprisonment, with a non-parole period of six (6) years.

37 I would make the appropriate declaration as to days already served pursuant to the sentence.

38 I agree that the appeal should be allowed for the reasons stated by Justice Priest. The appellant should be resentenced as His Honour proposes. I also agree with His Honour's remarks as to the nature of the mental gymnastics which s.6AAA requires.

39 I agree with the presiding judge, Buchanan JA and with Priest JA, that the appeal should be allowed and the appellant resentenced as is proposed.

40 I should add only that although there may be some artificiality in the court stating the sentence it would have imposed if the appellant had not pleaded guilty, s 6AAA reflects the important policy aim of encouraging those who have committed the offences with which they are charged to plead guilty by indicating the discount given for that plea. By so doing, it may reduce expenditure on the strained resources of the criminal justice system and relieve victims of crime from the ordeal of giving evidence.

2. The sentence passed below is set aside. In lieu thereof, the appellant is sentenced as follows:

The Court directs that 12 months of the sentence on charge 1 be served cumulatively on the sentence on count 3, making a total effective sentence of 6 years and 6 months' imprisonment. A non-parole period of 4 years and 6 months is fixed.

It is declared that a period of 980 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] The fact that the appellant had with him a knife when he burgled the premises rendered the offence one of aggravated burglary: Crimes Act 1958, s 77(1)(a).

[2] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; (2007) 169 A Crim R 581; [2007] VSCA 102.

[3] R v Kenny (Unreported, 2 October 1978, Vic, CCA).

[4] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.

[5] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).

[6] Hanks v R [2011] VSCA 7, [22]; Neubecker v R [2012] VSCA 58, [74].

[7] See Hogarth v R [2012] VSCA 302.

[8] With respect, I endorse the views expressed by Kaye J in R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305.

Youil v The Queen [2013] VSCA 228

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Judgment (56 paragraphs)

Youil v The Queen [2013] VSCA 228 (22 August 2013)

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