Abdou v The Queen
[2015] VSCA 359
•17 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0074 | |
| MOHAMMED ABDOU | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2015 0110 | |
| AHMED CHEBIB | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and BEACH JJA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2015 |
| DATE OF JUDGMENT: | 17 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 359 |
| JUDGMENT APPEALED FROM: | [2015] VCC 330 (Judge Parsons) |
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CRIMINAL LAW – Appeal – Sentence – Multiple armed robberies committed in a group – Two applicants (A1 and A2) co-offenders in group – A1 sentenced to 4y, 4m imprisonment and 4y Community Corrections Order (CCO) – Breach of Sentencing Act 1991 s 11 by failure to fix non-parole period – Deng-Mabior v The Queen [2015] VSCA 179; Boulton v The Queen [2014] VSCA 342 considered – Whether certain individual sentences, total effective sentence or combined effect of total effective sentence and CCO manifestly excessive – No direct nexus between Verdins disorder and offending – General and specific deterrence incorrectly moderated – CCO not alternative to imprisonment in every case – Appeal allowed – Non-parole period of 3y, 10m fixed – Total effective sentence and CCO unaltered – R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325; DPP v Terrick (2009) 24 VR 457 considered – Sentencing Act 1991 ss 11, 13, 44.
CRIMINAL LAW – Appeal – Sentence – A2 sentenced to 8y imprisonment, non-parole period 6y – Whether individual sentences, non-parole period and total effective sentence contrary to parity principle – Whether parity principle confined to lowest sentence passed on co-offender – Parity principle informed by sentences of all comparable co-offenders – No error in differentiating A1 and A2 – A2 as leading participant in offences – A1 with notably disadvantaged background and associated psychological issues – Whether non-parole period inconsistent with judge’s stated intention – No ‘usual’ non-parole period – No explanation for diverging from intention – Kumova v The Queen (2012) 37 VR 538; Wallace v The Queen [2012] VSCA 114 followed – Appeal allowed – Re-sentencing by reducing individual sentence on charge 2 to two years – Order for cumulation on charge 2 unaltered – Total effective sentence unaltered – Non-parole period of 5y fixed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Abdou) | Mr C T Farrington | Balmer & Associates |
| For the Applicant (Chebib) | Mr D D Gurvich | Emma Turnbull Lawyers |
| For the Crown | Mr B L Sonnet | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
BEALE AJA:
The applicants Mohammed Abdou (‘Abdou’) and Ahmed Chebib (‘Chebib’) each seek leave to appeal against their sentences imposed in the County Court on 20 March 2015.[1]
[1]DPP v Abdou [2015] VCC 330 (‘Reasons’).
Abdou was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Attempted Armed Robbery
[Crimes Act 1958 s 75A(1) and 321M]20 years’ imprisonment
[Crimes Act 1958 s 75A(2) and 321M]4 year CCO, 600 hours community service N/A 2 Armed Robbery
[Crimes Act 1958 s 75A(1)]25 years’ imprisonment
[Crimes Act 1958 s 75A(2)]4 year CCO, 600 hours community service N/A 3 Armed Robbery 25 years’ imprisonment 2 years 6 months imprisonment 12 months 4 Armed Robbery 25 years’ imprisonment 3 years Base sentence 5 Criminal Damage
[Crimes Act 1958 s 197(1)]10 years’ imprisonment
[Crimes Act 1958 s 197(1)]6 months 2 months 6 Armed Robbery 25 years’ imprisonment 4 year CCO, 600 hours community service N/A 7 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment
[Crimes Act 1958 s 81(1)]$250 fine N/A Summary offence Possess prohibited weapon
[Control of Weapons Act 1990 s 5(1)(e)]2 years’ imprisonment [Control of Weapons Act 1990 s 5(1)] 2 months 1 month Summary offence Possess controlled weapon [Control of Weapons Act 1990 s 6(1)] 1 year’s imprisonment [Control of Weapons Act 1990 s 6(1)] 2 months 1 month Total Effective Sentence: 4 years and 4 months’ imprisonment and a CCO for 4 years with 600 hours of community service. Non-Parole Period: N/A Pre-sentence Detention Declared: 876 days 6AAA Statement: 8 years’ imprisonment with a non-parole period of 6 years Other orders:
Compensation order for $5,000 (Charge 5)
Compensation order for $400 (Charge 6)
Forfeiture order.
Chebib was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Armed Robbery [Crimes Act 1958 s 75A(1)] | 25 years’ imprisonment [Crimes Act 1958 s 75A(2)] | 4 years | 1 year |
| 2 | Armed Robbery | 25 years’ imprisonment | 4 years | 1 year |
| 3 | Armed Robbery | 25 years’ imprisonment | 4 years 6 months | 1 year |
| 4 | Armed Robbery | 25 years’ imprisonment | 5 years | Base sentence |
| 5 | Criminal Damage [Crimes Act 1958 s 197(1)] | 10 years’ imprisonment [Crimes Act 1958 s 197(1)] | 6 months | N/A |
| Total Effective Sentence: | 8 years’ imprisonment | |||
| Non-Parole Period: | 6 years’ imprisonment | |||
| Pre-sentence Detention Declared: | 876 days | |||
| 6AAA Statement: | 10 years’ imprisonment with a non-parole period of 8 years | |||
| Other orders: Compensation order for $22,836 (Charge 1) Forfeiture order. | ||||
Abdou seeks leave to appeal against his sentence on the following grounds:
1.The sentencing judge erred in imposing a total effective sentence of 4 years and 4 months’ imprisonment without a minimum non-parole period as it breaches s 11 of the Sentencing Act 1991.
2.It is submitted that:
(a)The total effective sentence of imprisonment imposed on charges 3, 4 and 5 and on the summary offences, in conjunction with the 4 year Community Corrections Order (‘CCO’) on charges 1, 2 and 6 is manifestly excessive;
(b)The total effective sentence of imprisonment imposed on charges 3, 4 and 5 and on the summary offences is manifestly excessive;
(c)The individual sentences imposed on charges 3, 4, 5 and the summary offences were manifestly excessive; and
(d)The orders for cumulation in relation to charges 3, 4, 5 and the summary offences resulted in a sentence which was manifestly excessive.
Chebib seeks leave to appeal against his sentence on two grounds:
1.The individual sentences, non-parole period and total effective sentence imposed on the applicant infringe the principles of parity when regard is had to the sentences imposed upon the applicant’s co-offender Abdou.
2.The learned sentencing judge erred by failing to give effect to his intention to fix a longer than normal parole period.
For the reasons that follow, we would grant the applicants leave to appeal, allow both appeals and sentence them in the manner proposed.
Factual background
The applicants were part of a group of at least six male offenders who committed armed robberies over a period of 10 months in the North and North-East suburbs of Melbourne, as well as Bentleigh East. Abdou and Chebib were both aged between 19 and 20 years old at the time of the offending. The offences each applicant was charged with were as follows:
Eltham Hotel — 8 March 2012 (Abdou Charge 1 — Attempted Armed Robbery)
Abdou was part of a group that included co-offender Elrajab. Elrajab entered the Eltham Hotel and conducted reconnaissance before leaving at 12:37 am. Abdou and two other offenders arrived at 12:40 am. They had their faces concealed and were wearing gloves. The two unknown males were armed with handguns, with the second unknown male being armed with a baseball bat, and Abdou had a milk crate. They attempted to enter the venue by jumping a fence and entering through the smoking area, but the doors were locked. They went to the main entrance but that had also been locked. The security guard saw them and sought to call police from the gaming area. They tried to force the front doors and the door to the TAB but were unsuccessful.
Boundary Hotel — 26 March 2012 (Chebib Charge 1 — Armed Robbery)
Prior to 26 March 2012, Chebib and an unknown male went to the Boundary Hotel in Bentleigh East to conduct reconnaissance in preparation for an armed robbery.
On 26 March 2012, Chebib and two other males entered the Boundary Hotel at 3:39 am. A number of staff and patrons were present. Chebib was armed with a pump action shotgun and the two other males had handguns. They were all wearing gloves and balaclavas. Chebib pointed his gun at the security guard, cocked it and told him to get on the ground. He told the security guard that, if he moved, he would blow his head off. He later threatened that if the security guard hit the panic button he would kill him. The offenders tried to open the main safe but were unsuccessful. They threatened one of the gaming attendants and made her open the poker machines, from which they stole the note acceptors. A total of $22,836 was stolen.
Furlan Club — 23 April 2012 (Abdou and Chebib Charge 2 — Armed Robbery)
On 19 April 2012, Abdou, Chebib and co-offender Mahmoud Halabi went to the Furlan Club in Thornbury and acted as legitimate patrons.
On 23 April 2012, they met at tennis courts in Campbellfield along with co-offender Abdullah Ghazi. Chebib distributed guns and disguises to the group. They went to the venue, arriving at 8:19 pm. Abdou tried to see how many people were in the club but could not because it was locked. They waited until 11:20 pm when the cleaner opened the side door to let two employees outside. The offenders emerged from the bushes where they were hiding, brandishing firearms. They forced the employees to the ground and tied them up with duct tape. The cleaner was hit with the handle of the pistol and also tied up. The female employee’s phone and handbag were taken. The male employee was taken into the venue and made to open the safe and hand over cash to the offenders. The total amount stolen was $43,565.
Furlan Club — 13 July 2012 (Abdou and Chebib Charge 3 — Armed Robbery)
Abdou and Chebib were involved in a second armed robbery of the Furlan Club on 13 July 2012, with co-offenders Mohammed Elrajab and Ghazi. Elrajab conducted reconnaissance on the venue, prior to the other offenders arriving in Chebib’s car, which was bearing stolen registration plates. Ghazi had knuckledusters, Elrajab had a sawn off shotgun, Abdou had a metal pole and Chebib was carrying a bag. They were all wearing balaclavas and gloves.
Abdou, Ghazi and Elrajab went in first and took control of staff and patrons, whilst Chebib parked the car and arrived shortly afterwards. They tried to get the supervisor to open the safe, but she was unsuccessful. One of the other offenders threatened the supervisor by pushing the shotgun into her back and then right up at her mouth. Chebib took the gun off the other offender. The supervisor told him to take the ATM money from a nearby till. One of the offenders struck the security monitors and then they left.
In addition to stealing $8,863 in cash, they also took wallets and mobile phones from two employees and Elrajab stole a pink donation pig for the Royal Children’s Hospital.
Manningham Club — 15 September 2012 (Chebib Charge 4 — Armed Robbery, Chebib Charge 5 — Criminal Damage, Abdou Charge 4 — Armed Robbery)
On 15 September 2012 at approximately 12:14 am, Elrajab conducted reconnaissance on the Manningham Club before returning at 1:30 am with Abdou, Chebib and Ghazi. Abdou entered the premises wearing a black wig. He was let in by security. Once inside, Abdou went to the visitor’s book and pretended to sign in. Abdou then kicked the automatic door release, causing it to break. Ghazi, armed with a rifle, and Elrajab, who had a sawn-off shotgun, entered at this time. Abdou put on his balaclava and gloves and went with Ghazi to the gaming area. Chebib drove his car up to the entrance. Abdou went to the cashier counter and ordered two staff members to get on the ground. Abdou asked another staff member if he set off the panic alarm then yelled at him to ‘open the fucking safe’.
Chebib got out of the car with the bag and a baseball bat. He attempted to enter via the automatic doors, but Abdou had rendered them inoperable. Chebib smashed the large glass window while another co-offender was kicking the door from the inside. Once Chebib gained entry, he joined Abdou to steal money from the cashier’s drawers. They took $5,940.50.
The window smashed by Chebib was replaced at a cost of $6,752.
Ezy Glass — 16 September 2012 (Abdou Charge 5 — Criminal Damage)
Following the offending at the Manningham Club, Abdou and Ghazi tried out various implements to see which was better at smashing glass at the Ezy Glass Factory in Campbellfield. They broke six large panes of glass, causing damage in the sum of $5,000. Chebib and Elrajab were also present.
Alice Liu Ping Milk Bar — 26 September 2012 (Abdou Charge 6 — Armed Robbery)
Abdou and Ghazi robbed a milk bar around the corner from Ghazi’s house in Broadmeadows. Abdou was armed with a large bamboo stick, while Ghazi carried a silver imitation semi-automatic handgun. Abdou was unmasked but wore a baseball cap and hooded jacket with the hood up. Ghazi has a piece of material over his face. Abdou went behind the serving counter and confronted the milk bar owner. Ghazi tried to open the register but was unsuccessful. He then shut the door and pulled down the blinds. Abdou made the owner open the register, but she was uncooperative and shut the register. She had some money in her hand. Ghazi snatched the money from her hand and pointed the gun at her and then the register. Abdou remained next to the owner holding the stick. They took $400 and left. The owner saw them drive away.
12 October 2012 — Abdou Charge 7 — Obtain property by deception
On 12 October 2012, a group of male offenders, including Abdou, robbed two victims in Coburg North. Abdou later used the Commonwealth band card stolen from this robbery to purchase two packets of cigarettes for $36.
Co-offenders’ Sentences
The applicants’ co-offenders were sentenced by the same judge. In view of the youth of the offenders in the group, the sentencing judge sought to apply the principles applicable to youthful offending in R v Mills[2] and Azzopardi v The Queen,[3] extending such leniency as he could. The sentence imposed upon each co-offender is as follows:
[2][1998] 4 VR 235 (‘Mills’).
[3](2011) 35 VR 43 (‘Azzopardi’).
(a) Erik Lahteenmaa (also known as ‘Latima’) (aged 25 at the time of the offending) pleaded guilty to one charge of armed robbery and was sentenced to a community corrections order of two years’ duration.[4]
[4]DPP v Lahteenmaa [2013] VCC 1529.
(b) Mahmoud Halabi (aged 18 at the time of the offending) pleaded guilty to one charge of armed robbery and was sentenced to a three year youth justice centre order.[5]
(c) Mohammed Elrajab (aged between 18 and 19 at the time of the offending) pleaded guilty to two charges of armed robbery, one charge of attempted armed robbery and one charge of criminal damage. He was sentenced to five years’ and six months’ imprisonment with a minimum term of four years and six months to be served before becoming eligible for parole.[6]
(d) Abdullah Ghazi (aged between 17 and 18 at the time of the offending) pleaded guilty to five charges of armed robbery, one charge of criminal damage, two charges of attempted armed robbery, one charge of obtaining property by deception and a summary offence of possession of a controlled weapon without excuse. He was sentenced to three years’ detention in a youth justice detention centre.[7]
[5]DPP v Halabi [2013] VCC 1370.
[6]DPP v Elrajab [2014] VCC 1185.
[7]DPP v Ghazi (Unreported, County Court of Victoria, Judge Parsons, 19 September 2014).
Abdou’s application for leave to appeal against sentence
Ground 1
Under ground 1, Abdou submits that the sentencing judge failed to comply with s 11 of the Sentencing Act 1991 which mandates that a non-parole period must be set where the total effective sentence of imprisonment imposed on an offender exceeds two years, unless the nature of the offence or the past history of the offender makes a minimum term of imprisonment inappropriate. He submits that the sentencing judge contravened s 11 by imposing a sentence of four years and four months’ imprisonment without setting a minimum term of imprisonment or providing any reasons for the failure to fix such a term.
Section 11(1) provides as follows:
(1) If a court sentences an offender to be imprisoned in respect of an offence for—
…
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
Abdou contends, and the respondent accepts, that this provision must be given effect regardless of the Community Corrections Order (‘CCO’) which was also imposed. Hence Abdou initially submitted, relying upon Ludeman v The Queen[8] and R v Iddon,[9] that the contravention of s 11 of the Sentencing Act re-opens the sentencing discretion, enabling this Court to consider afresh the sentence to be imposed on other counts. During oral argument, it became apparent to counsel for Abdou that if the sentencing discretion were re-opened with respect to all of the charges, there was a risk that his sentences would be increased. The Court indicated that it would not increase any sentence if the argument was confined to the non-parole period that should be imposed. The argument thereafter so limited, it was submitted by Abdou that a non-parole period of ‘around three years’ ought to be fixed.
[8](2010) 208 A Crim R 298.
[9](1987) 32 A Crim R 315.
The Sentencing Act 1991 clearly contemplates a sentencing disposition which combines a CCO with a term of imprisonment. As amended in 2014, s 44(1) of the Sentencing Act allows the sentencing court to combine a CCO with a term of imprisonment where the time to be served after deduction of the pre-sentence detention period is two years or less. Abdou had served 876 days pre sentence detention. For the purpose of s 44, two years and 146 days had to therefore be deducted from the total effective sentence. Deducting his pre-sentence detention, Abdou had less than two years’ imprisonment to serve at the date of sentence which could therefore be combined with a CCO following the completion of Abdou’s term of imprisonment.
On the hearing of the appeal, both parties accepted that the sentencing judge was required, in sentencing Abdou to a total effective sentence of four years and four months’ imprisonment with a CCO of four years, to fix a non-parole period pursuant to s 11(1) of the Sentencing Act. Such a course was entirely consistent with this Court’s decision in Deng-Mabior v The Queen.[10] Section 13 of the Sentencing Act provides that the failure to fix a non-parole period does not invalidate the sentence passed but the Court of Appeal may, on the application of the offender, fix a non-parole period in accordance with s 11.
[10][2015] VSCA 179 (‘Deng-Mabior’).
During oral argument, the respondent submitted that the sentencing judge’s intent was clear that Abdou serve the entire term of four years and four months in prison before he commence the CCO. It submitted that, in order to comply with s 11(3) and as far as possible give effect to the sentencing judge’s intent, the non-parole period that should be imposed was one that was only six months less than the head sentence.
We turn to the manner in which the plea was conducted to ascertain whether the judge’s intention was as the respondent contends. The plea was adjourned, part heard, so as to enable court-ordered Forensicare psychiatric reports on Abdou and Chebib to be prepared. Abdou’s submissions until then were directed towards the imposition of a head sentence and a non-parole period. By the time the matter returned to court the guideline judgment of this Court in Boulton v The Queen,[11] concerning CCOs, had been published. Abdou now sought the imposition of a CCO, his counsel submitting that a combined sentence of imprisonment and a CCO under s 44 of the Sentencing Act1991 would be appropriate. It was submitted that after allowing for pre-sentence detention, the balance of the term of imprisonment that remained to be served could not exceed two years. The judge foreshadowed that a term of further imprisonment would clearly have to be imposed. As a comparator, he adverted to the sentence imposed on Elrajab of five and a half years’ imprisonment with a non-parole period of four and a half years. His Honour favoured the imposition of a combined sentence by way of imprisonment of up to two years followed by a CCO. Neither counsel or the judge adverted to the question of a non-parole period prior to the commencement of a CCO. The potential application of s 11(1) of the Sentencing Act was not raised.
[11]Boulton v The Queen [2014] VSCA 342 (‘Boulton’).
Unlike s 44, s 11(1) does not take into account any deduction from the total effective sentence of the period spent in pre-sentence detention. The judge’s ultimate sentence of four years and four months’ imprisonment, followed by a CCO of 4 years, breached s 11(1) of the Sentencing Act as no non-parole period was set, as required by the section. As was said in Deng-Mabior:
The language of s 11(1) is clear and unambiguous. Where a sentence of 2 years or more is imposed, a non-parole period must be fixed unless either ‘the nature of the offence’ or the ‘past history of the offender’ make it inappropriate to fix such a period. …
Her Honour’s failure to fix a non-parole period is doubtless to be explained by the fact that she was imposing a CCO which she intended should commence immediately upon the completion of the term of imprisonment. Her Honour was clearly alive to the advantages, both for the applicant and for the community, of imposing a CCO with conditions which would address the causes of his offending, specifically his mental illness and his serious alcohol problem. And she was aware of the amendment to s 44 to which we have referred, enabling a CCO to be combined with imprisonment of up to 2 years.
Had the sentence been for a term of less than 2 years (and not less than 1 year), her Honour would have had a discretion under s 11(2) not to fix a non-parole period. Once she imposed a sentence of 2 years, however, the mandatory operation of s 11(1) was engaged. As a result, her Honour had no discretion (unless the ‘inappropriate’ exception applied) to decline to fix a non-parole period.[12]
[12][2015] VSCA 179 [35]–[37].
Neither party having referred to s 11, it is not surprising that the judge offered no reasons in his sentencing remarks for departing from the statutory requirement that a non-parole period be set. Although s 11(1) contains an exception from the requirement that a non-parole period be set where the judge is satisfied that the nature of the offence or the past history of the offender make it inappropriate to do so, there was nothing said in the sentencing remarks to suggest that this was the explanation for the absence of a non-parole period. There was no evidence before his Honour that would have supported the conclusion that the nature of Abdou’s offending or his past history made a term of release on parole inappropriate. If there was some other specific reason why a non-parole period was not fixed, one would expect the very experienced judge to have provided explicit reasons for not following that course.
A non-parole period and a CCO may form part of the sentencing disposition in respect of an offender. As this Court said in Deng-Mabior, the obligation to fix a non-parole period applies only if the sentence is for a term of more than two years.[13] The Court recognised that a non-parole period and a CCO were not to be treated as alternatives in every case:
[13]Ibid [38].
Shortly after her Honour imposed sentence in this case, this Court handed down the guideline judgment on CCOs in Boulton v The Queen. Under the heading ‘CCO or non-parole period?’, the Court said this:
As noted earlier, the effectiveness of a CCO is likely to depend on the court’s ability to determine:
(a) whether the offender is suitable for a CCO; and
(b) what conditions should be attached to the order to address the particular needs and circumstances of the offender.
As VLA points out, the ability to make such assessments will inevitably diminish the longer the time between the making of the order and the commencement of operation of the CCO.
In the case of a short term of imprisonment, there should ordinarily be little difficulty in undertaking the suitability assessment. Where, however, the court proposes to impose a term of imprisonment of 12 months or more, the difficulties may be quite considerable. As VLA points out, the court has a discretion in those circumstances to fix a non-parole period and/or to impose a CCO.
In some circumstances, it will be more beneficial to fix a non-parole period than to attach a CCO. The Adult Parole Board will then be able to assess, as the expiry of the non-parole period approaches, the offender’s rehabilitative prospects, having regard to how he/she has fared in custody, and will be able to tailor parole conditions to the offender’s needs as they then appear to be.
VLA made detailed submissions about the advantages and disadvantages of combining a non-parole period with a CCO. We agree, for the reasons advanced by VLA, that there are significant conceptual and practical difficulties in such a combination, and that the sentencing court should ordinarily treat them as alternatives.
…
[A]s we have pointed out, the choice between a CCO and a non-parole period only arises where a sentence of imprisonment of less than 2 years is to be imposed. In those circumstances, the sentencing court has a choice between fixing a non-parole period and imposing a CCO. But if the custodial term is 2 years, the court is obliged (subject to the exception) to fix a non-parole period, even if a CCO is to be attached. And if the sentence is above 2 years, there is simply no power to combine it with a CCO.
Nothing said in Boulton suggested otherwise. Unsurprisingly, the VLA submission which the Court there endorsed was concerned with, and only with, sentences of up to 2 years, where the court has a discretion under s 11 not to fix a non-parole period.[14]
[14]Ibid [39]–[41] (citations omitted).
In order to determine an appropriate non-parole period it is necessary to first resolve ground 2 , which, were it made out, may result in a lower total effective sentence.
Ground 2
Abdou’s complaint under ground 2 is expressed in four ways. First the combination of the CCO imposed on charges 1, 2 and 6 and the term of imprisonment imposed on charges 3, 4, 5 and the summary offences is said to have resulted in a total effective sentence that is manifestly excessive. Second, it is submitted that the total effective sentence of imprisonment imposed on charges 3, 4, 5 and the summary offences is manifestly excessive. Third, it is said that the individual sentences imposed on charges 3, 4, 5 and the summary offences are manifestly excessive. Fourth, it is submitted that the orders for cumulation in relation to charges 3, 4 and 5 and the summary offences resulted in a manifestly excessive sentence.
Abdou relies on Boulton with respect to his contention that the combined effect of the CCO and the term of imprisonment was a manifestly excessive sentence. He argues that the requirement that he spend four years and four months in custody prior to completing a four-year CCO led to a custodial sentence wholly outside the range of sentencing options available to the judge. He submits that a CCO is to be viewed as a genuine alternative to imprisonment even where the offences were of a serious nature.[15] In circumstances where the offender is a 22 year old man with a diagnosed mental health condition, never previously in custody, and having spent 876 days in remand, Abdou submits that a sentence of imprisonment which went beyond pre-sentence detention was manifestly excessive.
[15]Boulton [2014] VSCA 342 [113], [131]; Sherritt v The Queen [2015] VSCA 1 [46].
In support of his more general complaint of manifest excess, Abdou draws on a number of particulars. He submits that a range of mitigating factors applied in his case, including his plea of guilty, expression of remorse, young age, lack of relevant criminal history, a diagnosed post-traumatic stress disorder (PTSD), his completion during pre-sentence detention of a number of rehabilitative courses and the manner in which he has sought to address his substance abuse.
The sentencing judge noted that Abdou had shown remorse in various forms. These included expressions of remorse in a letter tendered to the court, statements made to other people, including professional persons, and the making of a payment towards the compensation ordered against him.[16] He acknowledged that Abdou’s guilty plea had spared the community and witnesses the time, expenditure and ordeal of a trial, although he moderated the mitigatory effect of that factor as the plea was not made at the first opportunity and the matter had been listed for trial twice.[17] He accepted the guilty plea as an indication of remorse.[18]
[16]Reasons [41].
[17]Ibid [50].
[18]Ibid [52].
Some credit was given to Abdou for using his time in pre-sentence detention to embark in a meaningful way upon the path to rehabilitation.[19] The judge said, somewhat circumspectly, that on balance, the applicants’ chances of rehabilitation depended on the attitudes each adopted whilst in custody and how each addressed his psychological issues, particularly relating to drugs.[20] He also noted the defence’s reliance upon the principles applicable to youthful offending stated in Mills and Azzopardi, which favoured the imposition of a more lenient sentence than would otherwise have been imposed.[21]
[19]Ibid [81].
[20]Ibid [68]–[69].
[21]Ibid [82].
The judge placed considerable weight on a medical Forensicare report prepared by Dr Mark Ryan, dated 24 February 2015 (‘Ryan report’).[22] The Ryan report detailed Abdou’s traumatic personal history. It made reference to two reports prepared independently by Mr Cummins and Ms Dellas, a psychologist Abdou had seen from the ages of 15 to 16; those reports further outlined Abdou’s personal history. At an early age, Abdou had suffered emotional and physical abuse from his father and witnessed domestic violence perpetrated against his mother and siblings. He displayed conduct difficulties in early childhood. He was sent to Lebanon, where he experienced physical, emotional and sexual abuse at the hands of his uncle between the ages of seven and 14. When he returned to Australia at age 14, he displayed emotional and behavioural problems. He was expelled from several schools. The Ryan report also found that Abdou suffered from substance abuse. Abdou began using cannabis regularly at the age of 15, which had increased in the 18 months prior to his apprehension. He commenced using ice six months prior to his apprehension. The judge accepted Abdou’s reported daily use of ice and alcohol at the time of the offending.
[22]Ibid [61]–[69].
Dr Ryan diagnosed Abdou with PTSD, conduct disorder in childhood and adolescence, and poly-substance abuse of alcohol, cannabis and amphetamines. He said that it was likely that Abdou was dependent on alcohol at the time of reception into prison. He noted that substance abuse was more common in individuals with PTSD. It was recommended that Abdou receive ongoing treatment for PTSD and substance misuse. In view of the diagnosis made by Dr Ryan, the sentencing judge accepted that Abdou’s time in custody would be more difficult than for an otherwise ordinary prisoner.[23] He also applied the principles in R v Verdins[24] so as to moderate the applicability of general and specific deterrence as sentencing considerations in respect of Abdou. He said:
The relevant causality is established, in my view, by the diagnosis of post-traumatic stress disorder clearly pre-existing [Abdou’s] offending, the self-medication by ingesting drugs, being a typical way of dealing with such problems, and in that way it seems to me there should be some sensible moderation of the applicability of those principles in [Abdou’s] case.[25]
[23]Ibid [79].
[24](2007) 16 VR 269 (‘Verdins’).
[25]Reasons [79].
The judge also considered a number of aggravating factors that bore upon the appropriate sentence. He emphasised the considerable suffering experienced by the victims of the offending, detailed in the victim impact statements tendered on the plea.[26] He observed that the applicants had, by their offending, ‘terrified, humiliated and assaulted a number of innocent and decent members of our community’.[27] He gave significant weight to the gravity of the offences, describing them as ‘extremely serious acts of violence carried out by groups of armed youths on gambling and social clubs late in the evening or the early hours of the morning’.[28] He noted that, as a result of the seriousness of the offending and its impact on the victims, the principle of general deterrence was of considerable importance.[29] However, as mentioned above, he considered that the significance of general and specific deterrence was to be moderated in Abdou’s case because of his PTSD.[30] His Honour mentioned in passing that Abdou had a prior appearance in the Broadmeadows Magistrates’ Court for failing to render assistance after an accident, the matter having been adjourned for a period of 18 months on various conditions without conviction.[31]
[26]Ibid [38]–[40], [77].
[27]Ibid [40].
[28]Ibid [77]. See also [86].
[29]Ibid [77].
[30]Ibid [79].
[31]Ibid [47].
Finally, the judge took account of the need for parity between the sentences of the co-offenders as a general sentencing consideration. The sentencing judge stated that the sentence had to be considered in light of Boulton.[32] The judge had ordered that both Abdou and Chebib be assessed for their suitability for a Community Corrections Orders, due to the fact that they had served approximately two and a half years on remand, were both youthful offenders and could be sentenced to a further two years’ imprisonment in conjunction with the order, not including pre-sentence detention.[33] He concluded that, in view of the decision in Boulton and the recommendation in Abdou’s CCO assessment report, Abdou be given the opportunity to complete his sentence under such an order after having served his term of imprisonment.[34]
[32]Ibid [71]–[75].
[33]Ibid [76].
[34]Ibid [83].
On appeal, the respondent submits that there was nothing to suggest that the judge gave no, or inadequate, weight to any of the particulars in mitigation applicable to Abdou. For the reasons that follow, we accept that submission.
His Honour was prevailed upon by defence counsel, without demurral by the Crown, to find that the principles in Verdins applied by virtue of Abdou’s PTSD leading to his drug-taking which in turn led to his offending. Relying upon the three forensic reports diagnosing him with PTSD, Abdou had submitted that his psychological condition enlivened the principles in Verdins.Whilst it is well accepted that PTSD is a serious psychological condition properly described as impairing mental functioning, the judge applied Verdins reasoning so as to moderate the applicability of general and specific deterrence.
Recently, in Director of Public Prosecutions v O’Neill,[35] this Court essayed the scope and limitations of the six principles stated in Verdins.[36] Relevantly, it said:
[35][2015] VSCA 325.
[36]Verdins (2007) 16 VR 269, 276 [32].
First, the principles are enlivened only where the offender suffers from an impairment of mental functioning. Whether there should be any moderation of general deterrence, and if so its degree, will depend upon the nature and severity of the impairment of mental functioning.
…
Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.
…
Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
…
Seventh, an existing mental impairment at the time of sentence may require appropriate moderation of general deterrence, if it is determined that by virtue of that mental impairment the offender is not an appropriate vehicle for general deterrence. Whether that is so ’depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused’.[37]
[37]DPP v O’Neill [2015] VSCA 325 [71], [74], [75], [82] (citations omitted).
In well recognised, very limited circumstances a Verdins condition which has led to substance abuse may mitigate criminal conduct. In Wright v The Queen,[38] this Court (Maxwell P, Redlich and Osborn JJA) citing R v McKee[39] and R v Lacey[40] very recently said:
In a series of decisions, this Court has explored the relevance of drug addiction as a mitigating factor in sentence. Whether the existence of an addiction as a causal factor in the offending warrants a reduction in moral culpability depends upon ‘the extent to which a decision to experiment with drugs is freely made’.
The sentencing court may for this purpose have regard to the circumstances which led to the development of an addiction. Youth, disadvantage and impairment of mental functioning are all capable of bearing on the sentencing court’s determination of that issue.[41]
[38][2015] VSCA 333 (‘Wright’).
[39][2003] VSCA 16 [13], [21].
[40][2007] VSCA 196 [16]–[17].
[41]Wright [2015] VSCA 333 [46]–[47].
The Court in Wright then referred to the following passage from the judgment of Redlich JA in Johnston v The Queen[42] (with whom Priest JA and Robson AJA agreed):
For a sentencing judge to be satisfied that an offender was affected by a particular mental condition so as to reduce his moral culpability, there must be a ‘realistic connection’ between the mental condition and the commission of an offence. It must have ‘caused or contributed’ to the offending or have been ‘causally linked’ to it. The argument raised here — that the appellant’s moral culpability should be reduced on the basis of an indirect causal link between the offence, his drug addiction, and an underlying mental disorder — must be rejected.
Where offending occurs in circumstances where the offender was affected by drugs or alcohol, his substance abuse is not generally to be regarded as a factor in mitigation. Circumstances must be quite exceptional before the effects of drugs or alcohol at the time of offending can mitigate the offender’s moral culpability. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence. Where a person’s mental state is affected by voluntary drug-taking, it will only constitute a mitigating factor in the rare circumstance where it is established that the offender did not have any foreknowledge of the mental state that would be induced by the taking of drugs. Where an offender suffers from a mental disorder, the disorder is not to be treated as a mitigating factor because it explains the offender’s recourse to drugs.[43]
[42][2013] VSCA 362.
[43]Wright [2015] VSCA 333 [48], quoting Johnston v The Queen [2013] VSCA 362 [14]–[15].
During the course of oral argument on appeal, counsel for Abdou rightly accepted that Abdou’s substance abuse, even if consequent upon his PTSD, could not supply the necessary and sufficient connection between the impairment and the offending. For this reason, he resiled from the argument that had been pressed before the judge that there was a nexus between the disorder and the offending resulting from Abdou’s substance abuse. To the extent that the principles in Verdins were applied by the judge to moderate general and specific deterrence, it was accepted that there could be no cause for complaint.
An offender’s psychological condition is relevant to moral culpability[44] as is childhood deprivation.[45] A background of that kind may compromise the person's capacity to mature and remains relevant to the determination of the appropriate sentence.[46] The sentencing principles applicable to an offender with a disadvantaged background were summarised by this Court in Director of Public Prosecutions v Terrick:[47]
[44]DPP v O’Neill [2015] VSCA 325.
[45]Bugmy v The Queen (1990) 169 CLR 525; DPP v OJA (2007) 172 A Crim R 181, 204–5 [64]; Marrah v The Queen [2014] VSCA 119 [16]; DPP v Zhuang [2015] VSCA 96 [56].
[46]Bugmy v The Queen(1990) 169 CLR 525.
[47](2009) 24 VR 457.
1.The individual circumstances of an offender are always relevant to sentencing.
2.Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.
3.The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:
(a) the nature and extent of the disadvantage;
(b) the nexus (if any) with the offending; and
(c) the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.[48]
[48]Ibid 468 [46] (citations omitted).
Hence Abdou maintained, that the surrounding circumstances of sexual, physical and emotional abuse inflicted on him in childhood reduced his moral culpability.[49] They were in two respects relevant to the sentencing disposition. First, they bore upon his suitability for imprisonment. His psychiatric report recommended that he receive treatment for his PTSD, and noted that the availability of treatment may be limited in prison. It was open to the judge to accept that, in consequence of that disorder and his self-medicating through drugs, Abdou’s time in custody would be more onerous than for an otherwise ordinary prisoner.[50] Second, Abdou’s moral culpability was properly to be regarded as diminished because of his deprived background and the abuse he had suffered in his formative years. Whilst this latter circumstance bore, in a limited way, upon his moral culpability, it is also important to recognise that it did not attract the level of mitigation of sentence that must be allowed where Verdins principles are engaged to reduce moral culpability or moderate general deterrence.[51]
[49]See Bugmy v The Queen (1990) 169 CLR 525; DPP v Terrick (2009) 24 VR 457.
[50]Reasons [79].
[51]DPP v O’Neill [2015] VSCA 325 [100] (Warren CJ, Redlich and Kaye JJA).
The sentencing judge gave anxious and sensitive consideration to all of the mitigating factors relied upon. Those factors must be weighed in the balance with the extremely serious nature of the armed robberies, committed in company and involving firearms. The offences persisted over a period of some months. They involved considerable planning, including reconnaissance. Abdou was often armed during the commission of the offences; he carried a milk crate in the incident underlying charge 1, a firearm in the events comprising charge 2, a metal pole in the offence the subject of charge 3, and a large bamboo stick in the incident comprising charge 6. The offences were typically accompanied by the infliction of violence and threats of violence, causing physical and psychological harm to a number of victims. A substantial quantity of money was also stolen, particularly in the offences the subjects of charges 2 and 3. In these circumstances, it was appropriate for the judge to give prominence to the gravity of the offending in the sentencing calculus.
In our opinion the contention that the sentence is manifestly excessive cannot be sustained. Indeed it must be said that the sentences imposed were, in all the circumstances lenient. We also reject the contention that the imposition of a combined sentence of imprisonment and a CCO was manifestly excessive. To the contrary, the combined sentence reflects the judge’s sensitive approach that whilst a substantial period of imprisonment was necessary, the length of that term could be significantly reduced by imposing a CCO which has its own punitive aspect but is also designed to facilitate Abdou’s rehabilitation within a community setting.
We would refuse leave to appeal on ground 2.
Conclusion on Abdou’s application
As no basis was shown on ground 2 to disturb the sentences arrived at by the sentencing judge, we return to ground 1. It having been established that the judge erred in failing to impose a non-parole period, the are two reasons why the entire sentencing discretion is not to be re-opened. First, s 13(1) provides that the Court may impose a non-parole period but that in doing so the sentences that have been imposed are not invalidated. There is no necessity to consider the sentences imposed. Second, for the reasons we have mentioned, the applicant withdrew his submission that the sentencing discretion be re-opened. The Court adumbrated that it would not do so. That said, we would not in any event have been minded to alter the individual sentences or total effective sentence. As we agree with the approach adopted by his Honour, and as we view the sentences imposed by the sentencing judge as appropriate, we should, as far as possible, give effect to the sentencing judge’s intentions.
In the light of the error shown on ground 1, we would grant leave to appeal and allow the appeal. We would not alter the individual sentences, the total effective sentence of four years and four months’ imprisonment or the CCO of four years. As Abdou is to serve a sentence of four years and four months’ imprisonment, s 11(1) of the Sentencing Act requires the imposition of a non-parole period. It is not possible to give full effect to his Honour’s intention that the applicant serve the entirety of the term of four years and four months’ imprisonment, as s 11(3) requires that the non-parole period fixed must be at least six months shorter than the term of the sentence. We would therefore fix a non-parole period of three years and 10 months, being six months less than the term of the sentence. Upon completion of the parole period, Abdou will commence serving the CCO of four years.
Chebib’s application for leave to appeal against sentence
Ground 1
Under ground 1, Chebib submits that the individual sentences, non-parole period and total effective sentence imposed on him infringe the principle of parity when regard is had to the sentences imposed upon his co-offender, Mohammed Abdou.
The respondent conceded that the sentence imposed on charge 2 in respect of Chebib, when compared to the sentence imposed on Abdou for the same offence, breached the parity principle. It accepted that a CCO of four years was not commensurate with the four-year term of imprisonment imposed on Chebib. It acknowledged that, though it had not sought to challenge the sentence imposed on Abdou in respect of charge 2 on appeal, that sentence was manifestly inadequate.
In view of the respondent’s concession, the applicant Chebib now falls to be re-sentenced on charge 2.
The principle of parity may require a sentence that is not manifestly excessive to be reduced because of a co-offender’s sentence; even one that is manifestly inadequate. Although the preponderance of authority, at least in this Court, appears to be to the effect that the sentence may then be reduced to the lowest level within the range of sentences reasonably open but not to the manifestly inadequate level of the co-offender’s sentence,[52] it is unnecessary for the reasons that follow to further consider that question.
[52]R v Wilson (2000) 116 A Crim R 90; O’Loughlan v The Queen [2010] VSCA 175; Fletcher v The Queen [2011] VSCA 4; Farrugia v The Queen (2011 ) 32 VR 140; Taleb v The Queen [2014] VSCA 96.
Before considering the appropriate sentence on charge 2, we turn to consider whether the remaining individual sentences and total effective sentence should be varied. Chebib further submits that the parity principle was also breached in imposing such different terms of imprisonment on Chebib and Abdou for charges 3 and 4. In respect of those charges, it is said that his sentences were almost double those imposed on Abdou. The effect of the sentences is that Chebib is required to spend more than five and a half additional years in gaol relative to Abdou. The imposition of a four-year CCO upon release in Abdou’s case, it is submitted, gives rise to a justifiable sense of grievance.
Chebib confined his comparison to the sentences imposed in respect of Abdou. Although Chebib conceded on the appeal that the co-offender Elrajab’s circumstances were like his own, he argued that the court should be guided only by the lowest sentence imposed on a co-offender, that being the sentences of Abdou, in determining whether the parity principle had been breached.
Proper regard to parity of sentencing for co-offenders is essential to the sound exercise of the sentencing discretion. The policy underpinning the parity principle is the necessity of ensuring consistency in punishment, ‘a reflection of the notion of equal justice.’[53] When parity of sentences is in issue, the question is whether the applicant could be said to have a ‘justifiable sense of grievance’ about the relativity between his sentence and the sentence of the co-offender. That will depend upon whether there were reasonable grounds for the differentiation — or lack of differentiation, as the case may be — between the appellant and the co-offender.[54] The search for parity and whether any unjustifiable sense of grievance should arise will be informed by all of the sentences of comparable co-offenders and the comparison is not confined to the lowest sentence passed on any of the co-offenders. The respondent submitted on the plea and on appeal, correctly, in our opinion, that the sentence imposed on the co-offender Elrajab informed considerations of parity and that the search for parity was not confined to Abdou’s sentence. Elrajab received a sentence of five years and six months’ imprisonment with a non-parole period of four years and six months. We shall later examine the sentences on the offences common to Elrajab, Abdou and Chebib.
[53]Lowe v The Queen (1984) 154 CLR 606, 610–11 (Mason J).
[54]Teng v The Queen (2009) 22 VR 706, 723 [17] (Maxwell P, Ashley JA, Lasry AJA); R v Wolfe [2008] VSCA 284 [9].
Chebib submits there were no significant differences between him and Abdou that justified the imposition of different sentences. He points to a number of similarities. He submits, first, that Abdou is similar in age. Secondly, the offenders were said to share a history of drug use and were under the influence of drugs at the time of the offences. Third, there was a lengthy delay in sentencing both offenders. Fourth, he relies on the fact that both offenders were assessed as suitable for a CCO. Finally, he submits that both offenders pleaded guilty at approximately the same stage and expressed remorse, although it is acknowledged that Abdou may have expressed a greater degree of remorse.
Significant differences between Chebib and Abdou appear from the sentencing remarks. Chebib was ‘the leading participant in the offences for which he was charged’. Abdou was found to suffer from a Verdins condition. Chebib was the subject of a CCO for 12 months for a range of serious driving offences imposed 12 days prior to the offending the subject of charges 4 and 5. The conduct the subject of charges 1, 2 and 3 took place during the period prior to Chebib’s court appearance for the driving offences. Abdou also made a payment of part of the compensation order.
Chebib submits that the judge was in error in differentiating between him and Abdou. The description that he was ‘the leading participant’ was said to be attributed too much weight in the sentencing remarks as there was little to distinguish the co-offenders in terms of their respective roles. He argues that Abdou was facing an additional attempted armed robbery charge and various other charges. It is said that, while there were some Verdins principles applicable to Abdou, they did not justify the disparate sentences. He submits the sentencing judge placed disproportionate weight on the fact that he was sentenced to a CCO on 3 September 2012 and that the conduct the subject of charges 4 and 5 breached that CCO.
It was well open to his Honour to accept that Chebib should be treated as ‘the leading participant’ in the offending. The characterisation of Chebib as ‘the leading participant in the offences for which he is charged’ was stated in the amended prosecution opening. As the respondent submits, that characterisation was the product of discussion between the parties and the sentencing judge following concerns over the initial description of Chebib in the original prosecution opening as ‘the leader of the group’. Defence counsel stated at the commencement of the plea hearing that he ‘[took] issue with the generalised proposition that [Chebib was] the leader of the group.’ Following that discussion, the prosecutor assented to the amendment of the prosecution opening (‘Exhibit A’) so as to reflect that Chebib recruited only one co-offender, Halabi, instead of ‘a number of others’. Further, the prosecutor agreed to substitute the description ‘the leader of the group’ with the phrase ‘the leading participant in the offences for which he is charged’. Thereafter in response to the judge’s enquiry defence counsel expressed satisfaction with the amended exhibit.
Chebib cannot now depart from the position that was agreed to on the plea.[55] The judge was entitled to rely on the description of Chebib’s role as a matter of some importance in sentencing the offender. Chebib alternatively contended on appeal that the judge gave too much weight to that characterisation of his role so that it distorted his true involvement. We do not accept that is so. In his sentencing remarks, relying on the prosecution opening, the judge identified features of Chebib’s offending which supported the conclusion that he played a role going beyond mere participation in the offending. Chebib recruited Halabi for the offence on charge 2. His car was used to transport offenders to the venues in some of the offences charged.[56] In relation to charge 2, the offenders met beforehand at a tennis reserve in Campbellfield. There, Chebib handed out to the other offenders the guns and disguises to be used during the armed robbery. In these respects, Chebib undertook a leadership role that distinguished him from his co-offenders and increased his culpability. Further, in the armed robbery the subject of charge 1, he took an especially active role. He carried a pump-action shotgun, cocked it, pointed it at the security guard and told him to get on the ground. Chebib told the guard that if he moved he would blow his head off.
[55]Romero v The Queen (2011) 32 VR 486, 489–90 [11].
[56]Reasons [70].
As we have said, the sentences imposed on Elrajab also inform the question of parity. His total effective sentence was imposed for two charges of armed robbery, one charge of attempted armed robbery and one charge of criminal damage. Chebib faced four charges of armed robbery and one charge of criminal damage. The different sentences imposed on Abdou, Elrajab and Chebib on the offences in which they each participated reflects the degrees of culpability which the judge considered each bore for those charged acts and such subjective matters as required distinction. On charge 3 Elrajab received a sentence of three and a half years’ imprisonment, 1 year less than the term of imprisonment imposed on Chebib and 1 year more than that imposed on Abdou. On charge 4, Elrajab received a sentence of four years’ imprisonment, one year less than the term of imprisonment imposed on Chebib and one year more than that imposed on Abdou.
The sentencing judge drew upon two additional factors that increased Chebib’s culpability relative to Abdou. His Honour noted that Chebib’s guilty plea was less timely than that of Abdou, although he gave that factor less weight.[57] He referred to Chebib’s prior conviction for various driving matters[58] and the fact that he was placed on a CCO only two weeks before he committed the armed robbery on the Manningham Club.
[57]Ibid [84].
[58]Ibid [49].
As we have said, the sentencing judge placed particular weight on Abdou’s disadvantaged background and psychological issues. His Honour found that the offender’s time in custody would be more onerous than it otherwise would have been and that his moral culpability for the offending was thereby diminished.
A psychiatric report tendered on Chebib’s plea in mitigation showed Chebib’s childhood to be unremarkable.[59] He had a stable educational history, and completed year 12 prior to taking on an apprenticeship as a plumber.[60] He was married when he was aged about 17 or 18. Following the breakdown of his marriage, he started using a significant amount of cannabis daily and shortly thereafter was smoking one to two grams of ice per day.[61] The doctor concluded that any diminishment of Chebib’s capacity for judgment was caused by his use of drugs.[62] The doctor found little evidence to indicate that Chebib had an entrenched personality disorder or any significant or enduring major psychiatric illness. It was open to the judge to consider that their formative years constituted a significant distinction between Abdou and Chebib for the purposes of sentencing.
[59]Ibid [59].
[60]Ibid [56].
[61]Ibid [57].
[62]Ibid [60].
The submission cannot be sustained that the differences in the sentences of Chebib and Abdou on charges 3 and 4 cannot be justified.
Ground 2
Chebib submits under ground 2 that the sentencing judge erred by failing to give effect to his intention, conveyed during the plea hearing, that he would fix a longer than normal parole period. The sentencing judge stated that he would do so in light of Chebib’s youth and efforts towards rehabilitation. While Chebib concedes that there is no ‘usual’ non-parole period in law, he submits that the non-parole period of 75 per cent of the head sentence does not provide for a longer than normal period of parole and fails to provide the intended and appropriate incentive for rehabilitation.
The respondent submits, in reliance on Nettle JA’s observations in Kumova v The Queen,[63] that it was reasonably open to the sentencing judge to fix the non-parole period he did in the circumstances of the case. It contends that a sentencing judge is required to consider all the sentencing submissions made before passing sentence. The exchange upon which Chebib relies, it is argued, took place before the prosecutor had been heard in reply and advanced the submission that the gap between the head sentence and non-parole period should not be such as to erode the need for general deterrence. The respondent points to the sentence of five and a half years’ imprisonment with a non-parole period of four and a half years imposed on the co-offender Elrajab. It contends that, in any event, the two year period on parole provides ample scope for Chebib’s rehabilitation.
[63](2012) 37 VR 538, 543 [15] (‘Kumova’).
The exchange upon which Chebib relies took place on the third day of the plea hearing. In closing submissions, defence counsel sought to press that Chebib’s prospects for rehabilitation be regarded as a mitigating factor, should his drug use be effectively treated. The judge said:
[W]hat I have considered is a relatively, in view of his youth and the efforts he's made towards his rehabilitation, to recognise that [sic] with a longer than normal parole period. That will provide the opportunity for him, it seems to me, to make good his rehabilitation, and hopefully he'll continue on the current path.
The prosecutor then advanced the submission to which we have referred. Nowhere in the prosecutor’s submissions in reply did he take issue with the judge’s stated intention. In his reply, the prosecutor relied upon the need for general deterrence as an aggravating factor that bore upon the non-parole period to be fixed. To that extent, his reply reiterated submissions as to the significance of general deterrence previously made in the course of the plea hearing. The judge gave no indication that he had altered the view previously expressed during the defence plea in mitigation. If his Honour was contemplating a different sentencing disposition to that foreshadowed, it would be expected that this would be raised with defence counsel in reply.
The sentence was delivered on the same day. In his sentencing remarks, the judge noted that Chebib was a youthful offender.[64] He acknowledged that Chebib had made meaningful use of his time in gaol to commence rehabilitation.[65] The judge considered the principle of general deterrence ‘to be of considerable importance’.[66] No mention was made of the sentence imposed on the co-offender Elrajab. Neither did the judge advert to his stated intention on the plea to sentence Chebib to a shorter than normal non-parole period. He did not produce a sentence that provided a for a longer than usual parole period and offered no explanation for his divergence from his stated intention.
[64]Reasons [76], [82].
[65]Ibid [81].
[66]Ibid [77].
The general principles of appellate review of a non-parole period are well established. They were summarised in Wallace v The Queen[67] as follows:
(1)The non-parole period is the minimum term which justice requires be served.[68]
(2)There is no ‘usual’ non-parole period.[69]
(3)The question to be determined is whether, in all the circumstances of the case and of the offender, it was reasonably open to the sentencing judge to fix the non-parole period which the judge fixed.[70]
(4)Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[71]
[67][2012] VSCA 114 [2] (‘Wallace’).
[68]Power v The Queen [1974] 131 CLR 623, 629; Bugmy v The Queen (1990) 169 CLR 525, 538–9; IRJ v The Queen [2011] VSCA 376 [52]; Singh v The Queen [2011] VSCA 333 [27].
[69]Hili v The Queen (2010) 242 CLR 520 [36]–[45]; Muldrock v The Queen (2011) 244 CLR 120 [26]–[32].
[70]R v Merritt (2008) 191 A Crim R 272, 277–8 [24]; R v Sotto [2009] VSCA 70 [27]–[28]; Le v The Queen [2011] VSCA 42 [44]; Gray v The Queen [2010] VSCA 312 [21].
[71]R v Hill [2004] VSCA 116 [29]. See also Borthwick v The Queen [2012] VSCA 180 [10].
Sentencing judges should be mindful of the note of caution sounded in Wallace about the use of such expressions such as a ‘longer than usual’ non-parole period:
Since there is no ‘usual’ non-parole period, the use of phrases such as ‘shorter-than-usual’ and ‘longer-than-usual’ is unhelpful. As this case illustrates, the use of such phrases by a sentencing judge is apt to create false or unrealistic expectations, which then give rise to appeals. We would respectfully suggest that sentencing judges discontinue the use of such phrases. By contrast, no difficulty is created if a sentencing judge states that the non-parole period is ‘shorter than it would otherwise have been’ — for example, because of the offender’s efforts towards and/or prospects of rehabilitation.[72]
[72]Wallace [2012] VSCA 114 [16].
In Kumova[73] Redlich and Osborn JJA said:
The concept of the usual non-parole period frequently receives attention during the plea in mitigation, providing as it does a reference point for submissions as to where the non-parole period should fall. The sentencing remarks will often refer to the concept. There are two contexts in which it is used. The first is where it is intended to be descriptive of the range of non-parole periods usually imposed. The second is in the different context of the minimum sentence that is about to be imposed and is most often referred to in response to a submission that the minimum sentence should be lower than might otherwise be expected for specific reasons.
There are recent observations of this Court in Wallace,[74] Kneifati[75] and Borthwick[76] which disapprove of the use of the formulation ‘usual non-parole period,’ in this latter more narrow context of the specific sentence that is to be imposed. They make the point that for a judge to say ‘I propose to give you a shorter than usual non-parole period’ is apt to mislead and create false expectations — and lead to misconceived appeals against sentence. What the judge is ordinarily understood to mean in that context is something like: ‘In view of your strong prospects for rehabilitation [or other special feature], I propose to give you a shorter non-parole period than I would otherwise have done’. Such a statement creates no false expectations and, in particular, cannot give rise to a complaint on appeal that the judge failed to give effect to the stated intention. Ex hypothesi, no-one knows what the judge would have done but for the special features of the case at hand. These cases encourage sentencing judges to avoid the first formulation and adopt the second.[77]
[73] (2012) 37 VR 538 [33]–[34].
[74][2012] VSCA 114.
[75][2012] VSCA 124.
[76][2012] VSCA 180.
[77]Kumova (2012) 37 VR 538, 547–8 [33]–[34].
The sentencing judge made his intention clear that he would fix a non-parole period shorter than otherwise would have been set to enable Chebib ‘to make good his rehabilitation’. The manner in which the judge expressed himself was conclusive. He identified specific features of Chebib’s personal background such as his youth and attempts at rehabilitation. It was not in dispute that those factors play a strong role in mitigating his sentence and would have justified the imposition of a shorter non-parole period than would otherwise have been imposed.
The absence of any explanation for the judge’s divergence from his stated intention in circumstances which well justified the judge’s intention to impose a parole period longer than he otherwise would have, supports the conclusion that the judge fell into error in fixing the non-parole period. As the Crown conceded on the appeal, the non-parole period fixed was at the high end of the range[78] thereby permitting that conclusion to be more readily drawn. We consider that the sentencing discretion miscarried and that a different non-parole period should be set to give effect to the judges intention that the applicant have a longer period on parole.
[78]Ibid 542 [12] (Nettle JA), 545–7 [27], [32] (Redlich and Osborn JJA).
Conclusion on Chebib’s application
The applicant has made out part of ground 1. In fixing a sentence on charge 2 regard must be had to the sentence imposed on Abdou on the same charge. We would therefore fix a term of imprisonment of two years. Twelve months of that sentence should still be cumulated. As all other sentences remain unaffected, the total effective sentence also remains at eight years’ imprisonment.
As ground 2 has been made out, a different non-parole period should be imposed giving effect to the sentencing judge’s intention. We would therefore fix a non-parole period of five years.
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