and Marc Stanton Harris v The Queen
[2015] VSCA 192
•23 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0070 | |
| MARC STANTON HARRIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 23 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 192 |
| JUDGMENT APPEALED FROM: | DPP v Carroll (Unreported, County Court of Victoria, Judge Stuart, 6 March 2015) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Multiple charges of criminal damage, theft and attempted theft – Significant damage caused – Aggregate sentence of 4 years and 5 months' imprisonment with non-parole period of 2 years and 11 months – Whether sentence manifestly excessive – Manifest excess not reasonably arguable – Co-offender sentenced in respect of lesser number of offences to aggregate sentence of 3 years and 3 months with non-parole period of 21 months – Parity – Whether parity principles infringed – Parity complaint not reasonably arguable – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | No appearances | Robert Stary Lawyers |
| For the respondent | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
BEACH JA:
Introduction
On 19 January 2015, the applicant pleaded guilty in the County Court to five charges of criminal damage, five charges of theft and one charge of attempted theft. On 2 March 2015, he pleaded guilty to a summary charge of failing to answer bail. On 6 March 2015, following a plea hearing, the applicant was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
1. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]Aggregate sentence of 4 years 5 months’ imprisonment 2. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]3. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]4. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]5. Attempted Theft
[s 321M Crimes Act 1958]5 years
[s 321P Crimes Act 1958]6. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]7. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]8. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]9. Theft [s 74 Crimes Act 1958] 10 years [s 74(1) Crimes Act 1958] 10. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]11. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]Summary offence
1.
Fail to Answer Bail [s 30 Bail Act 1977] 12 months
[s 30(1) Bail Act 1977]Total Effective Sentence: 4 years 5 months’ imprisonment Non-Parole Period: 2 years 11 months’ imprisonment Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 212 days 6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of these offences after a trial would have been 6 years with the applicant becoming eligible for parole after serving 4 years of that sentence. Other relevant orders: Disposal Order. Pecuniary Order in the aggregate sum of $1,443.00. Forfeiture Order.
A co-offender of the applicant, Andrew Carroll, who had pleaded guilty on 2 February 2015 to three charges of criminal damage, three charges of theft and one charge of attempted theft, was sentenced by the same judge on the same day as the applicant as follows:
Charge on Indictment
Offence
Maximum
Sentence
1. Attempted Theft
[s 321M Crimes Act 1958]5 years
[s 321P Crimes Act 1958]Aggregate sentence of 3 years 3 months’ imprisonment 2. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]3. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]4. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]5. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]6. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]7. Theft
[s 74 Crimes Act 1958]10 years
[s 74(1) Crimes Act 1958]Total Effective Sentence: 3 years 3 months’ imprisonment Non-Parole Period: 21 months’ imprisonment Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 145 days 6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of these offences after a trial would have been 5 and a half years with the applicant becoming eligible for parole after serving 3 and a half years of that sentence. Other relevant orders: Disposal Order. Forfeiture Order.
The applicant now seeks leave to appeal in respect of the sentence imposed on him. The applicant’s proposed grounds of appeal are as follows:
1.The aggregate sentence imposed and the non-parole period fixed are each manifestly excessive.
2.The learned sentencing judge erred by imposing sentences upon the applicant that give rise to a justifiable sense of grievance in light of the sentences imposed on the applicant’s co-offender Andrew Carroll.
The offending
The offending involved the theft and attempted theft of cash from Myki machines at metropolitan railway stations by breaking into those machines. The charges of criminal damage related to the Myki machines when they were broken into. The theft charges relate to the theft of cash from the machines that were broken into. The attempted theft charges relate to occasions when attempts to break into Myki machines were ultimately unsuccessful.
The offending was recorded on CCTV security cameras at each station. That footage and other evidence showed that the offenders (including the applicant and Carroll) worked as a team; entered each station early in the morning when the station was not operating; had but one criminal objective — namely taking cash from the Myki machine at the station; wore balaclavas to conceal their identities; moved deliberately and quickly — being at each station for less than 10 minutes; and used mechanical equipment and other implements in order to force open the machines.
The applicant’s offending occurred during the period 18 June 2013 to 9 July 2013, on three mornings and at six stations. The total cost of the damage to the machines in relation to the applicant’s offending was $239,158.02. The total cash stolen in relation to the applicant’s offending was $3,553.40.
On the other hand, Carroll’s offending occurred during the period 1 July to 9 July 2013, on three mornings in relation to four incidents at three stations (offending at one particular station occurred on two occasions). The total cost of the damage to the machines involved in Carroll’s offending was $144,425.67. The total cash stolen in relation to Carroll’s offending was $2,000.20.
Harris and Carroll were co-offenders on two mornings (1 July and 9 July 2013) at three stations. The judge described the circumstances of the offending in the following terms:
Overall, the methodology involved a group of three, perhaps sometimes four, offenders attending at a railway station in the early hours of the morning when the station was not in operation. It involved breaking into the Myki machines and taking cash from the machines. Balaclavas were worn to conceal the identities of you both and others who were involved from time to time. On each occasion, the group or the team involved moved with deliberation and speed and were able to cut open and recover the cash in a short period of time in the vicinity of some three to four minutes.[1]
[1]DPP v Carroll (Unreported, County Court of Victoria, Judge Stuart, 6 March 2015) (‘Reasons’) [12].
The judge’s reasons
The judge commenced his reasons for sentence with a description of the offending and the involvement of each of the applicant and Carroll.[2] He then dealt with the pleas of guilty offered and made by each offender. The judge concluded that Carroll was entitled to be dealt with on the basis that his plea was made at the earliest reasonable opportunity.[3] With respect to the applicant’s plea of guilty, the judge said:
Whilst you Mr Harris offered to plead guilty around the same time or shortly after the committal to three of six incidents, your position is one where it cannot be said that the plea offers, in substance, were at the earliest reasonable opportunity. Nonetheless, for practical purposes, I can define no good reason why I should not give you both the full benefit of your pleas of guilty, as if made at the earliest reasonable opportunity to all charges.[4]
[2]Ibid [4]–[16].
[3]Ibid [22].
[4]Ibid [23]. See further, Reasons [24]–[27].
Next, the judge dealt with Carroll’s background.[5] The judge noted that Carroll was a 39 year old man who had a criminal history involving five court appearances. The judge regarded the first three of Carroll’s court appearances as irrelevant for sentencing purposes.[6] In respect of Carroll’s last two court appearances the judge said:
However, on 17 December 2008, the County Court in Melbourne, you were sentenced in relation to three armed robberies, related offences and were sentenced to be imprisoned. That sentence was subsequently appealed from and on 18 February 2010, the sentence imposed was a total of five years and four months' imprisonment, and a non-parole period of two years and ten months was set. Those charges of armed robbery arose from incidents that occurred on 4 February, 10 April and 2 May 2007 and involved armed robberies of hotels. The details of which are set out in the judgment of the Court of Appeal, which I have read.
You were ultimately paroled on 9 March 2010 and successfully completed that parole period, which ended on 7 August 2012. Some eleven months after the end of that head sentencing, in August 2012, you committed these offences in July 2013. A relatively short period of time, albeit not in breach of your parole.
In a subsequent court appearance, your fifth, on 7 February 2014, you were sentenced to an aggregate sentence of 14 months' imprisonment in relation to four charges of burglary and related four charges of theft. The offending occurred in December 2012 and you were therefore on bail at the time of this offending, in relation to dishonesty offences.
You therefore come before this court with a prior and recent criminal history involving very serious offending and commenced these offences whilst you were on bail in relation to dishonesty offences. It is plain from those matters and this offending that specific deterrence, that is deterring you, from further offending is of considerable moment in arriving at what I consider to be the appropriate sentences in total.[7]
[5]Ibid [28]–[45].
[6]Ibid [28].
[7]Ibid [29]–[32].
Having dealt with Carroll’s personal circumstances, the judge then turned to the applicant’s circumstances.[8] The judge noted that the applicant fell to be sentenced for a greater number of offences than Carroll, including a charge of failing to answer bail in respect of the other charges the applicant faced.
[8]Ibid [46]–[60] and [62]–[65].
The judge described the applicant’s prior criminal history in the following terms:
Your prior criminal history reveals that you have had two previous court appearances prior to this offending. One at the Ringwood Magistrates' Court on 23 April 2012, where you were placed on a 24 month community corrections order with treatment and rehabilitation provisions, among others, in relation to trafficking amphetamine, possess amphetamine and use amphetamine. That 24 month community corrections order would span the period during which you committed this offending in mid-2013, no less than some 14 months later after that court appearance.
Your second court appearance was three months prior to this offending on 6 March 2013, where you were dealt with for further offending of theft of a motor car, intentionally damage property, without lawful excuse enter a private place and motor vehicle offences, for which you were fined $1,000. In addition, on that date, you were dealt with for the contravention of the community corrections order and sentenced to three months' imprisonment, which sentence was partially suspended. The end result was that you were to serve one months' imprisonment, with the two months being suspended for an operational period of 12 months. This means of course that the community corrections order I have adverted to was not in force as at the date of the offending on the indictment. But in lieu, you had been dealt with three months before and you committed this offending during the course of the operational period of 12 months of the partly suspended sentence.
Furthermore, there is subsequent offending which was dealt with in the Melbourne Magistrates' Court on 25 October 2013, where you were facing court on two charges of theft of a motor vehicle, theft, two charges of obtaining property by deception, a charge of dealing with property suspected of proceeds of crime and driving related offences. That offending occurred in December 2012. You were on bail in relation to those matters when you committed the offending subject of the charges on indictment.
It is plain from that history that you have shown a disregard for court orders, community corrections orders, suspended sentence orders and bail conditions. The need in your case to deter you from further offending is therefore also clear.[9]
[9]Ibid [50]–[53].
In sentencing the applicant and Carroll, the judge noted that each had been in custody in respect of other matters and that each sentence had to be adjusted in accordance with the principles set out in R v Renzella.[10] The judge adjusted the applicant’s sentence down, to accommodate principles of totality, by a period of one month.[11] In respect of Carroll, the judge adjusted the sentence downwards by nine months.[12]
[10][1997] 2 VR 88 (‘Renzella’).
[11]Reasons [60].
[12]Ibid [61].
As to similarities and differences between the applicant and Carroll, the judge said:
The sentiments you [the applicant] express are much the same as the sentiments that Mr Carroll did in his letter to me. I likewise accept that those are your genuine desires. I further accept that it is drug use and in particular ice, which has plagued you as it has Mr Carroll.
You are 27 year old man. Mr Carroll, a 39 year old man. There is an age difference. But in common with you both, you both have demonstrated your capacity for skilled work. You both have demonstrated a capacity to lead law abiding lifestyles.[13]
[13]Ibid [65]–[66].
Finally, with respect to both the applicant and Carroll, the judge said:
General deterrence, that is deterring others from engaging in this sort of conduct, is a significant sentencing consideration. As is just punishment and denunciation for your behaviour. That you both are prepared to engage in the criminal enterprise that you have pleaded guilty to, which involved enormous destruction of property, indeed the writing off of the Myki machines for little gain and preparedness to engage in that conduct, demonstrates the need for specific deterrence, general deterrence, just punishment and the denunciation of your offending.[14]
[14]Ibid [67].
The applicant’s submissions
The applicant submitted that the aggregate sentence of 4 years and 5 months’ imprisonment and the non-parole period of 2 years and 11 months were each manifestly excessive in the light of:
(a) the limitations of imprisonment;
(b) the applicant’s pleas of guilty;
(c) totality and concurrency;
(d)the benefits — not only to the applicant but also to the community — of a combination sentence involving a term of imprisonment and a community corrections order;
(e)the principle of parsimony; and
(f)the judge’s findings that:
(i)the applicant should get the full benefit of his pleas of guilty as if they were made at the earliest reasonable opportunity to all charges;
(ii)those pleas evidenced remorse; and
(iii)the applicant had demonstrated a capacity for skilled work and a capacity to lead a law abiding lifestyle.
In support of that submission, the applicant noted that the charges of criminal damage were interrelated with the corresponding charges of theft ‘to such a degree as to constitute one transaction’ and that multiple offences committed on each of two different dates were interrelated so as to constitute a continuous episode of offending on each date (18 June and 7 July 2013). Additionally, the applicant contended that principles of totality mandated a lesser sentence than that imposed by the judge. Finally (so far as manifest excess was concerned), the applicant relied upon this Court’s decision in Boulton v The Queen,[15] to support a submission that the judge erred in not imposing a lesser sentence and/or a sentence that involved a community correction order.
[15][2014] VSCA 342 (‘Boulton’).
As to parity with Carroll, the applicant submitted that there were real differences between the applicant’s criminal record and Carroll’s criminal record, and that Carroll had the much more significant criminal record — having previously been sentenced in respect of, amongst other things, three charges of armed robbery. The applicant submitted that, in the light of the difference in their ages and criminal records, it was not open to the sentencing judge to impose an aggregate sentence on the applicant that was 1 year and 2 months longer than that imposed upon Carroll; nor to impose a non-parole period upon the applicant which was also 1 year and 2 months longer than the non-parole period imposed upon Carroll.
The respondent’s submissions
The respondent submitted that the sentence imposed by the judge ‘fell well within the available range given the seriousness of the offending and the applicant’s antecedents’. A number of matters were relied upon by the respondent including the sophisticated and brazen nature of the applicant’s crimes and the extent of the damage caused.
As to matters personal to the applicant, the respondent noted:
(a) the applicant had been placed on a community correction order for 24 months on 23 April 2012 and had showed poor compliance with the order;[16]
(b) on 6 March 2013, the applicant was dealt with for criminal damage, theft of a motor car and other offences and fined. For the breach of the community correction order the applicant was placed on a suspended gaol sentence of two months — which sentence was operative at the time of the commission of the present offences;[17] and
(c) the applicant was on bail for other dishonesty offences committed in December 2012 at the time of the present offending.[18]
[16]Reasons [50]–[51].
[17]Ibid [51].
[18]Ibid [52].
As to the applicant’s complaint about parity with Carroll, the respondent submitted that there was no error. The respondent pointed to the greater number of offences committed by the applicant, covering a longer period and the larger amount of damage and the larger amount taken in respect of the applicant’s offending when compared to Carroll’s offending.
As to the differences between the prior criminal histories of the applicant and Carroll, the respondent submitted:
Although Carroll had received sentences of imprisonment for the armed robberies committed seven years earlier, he had successfully completed his parole. His Honour was well aware of his criminal offending and paid proper regard thereto. It is trite to observe he, Carroll, was not to be resentenced for these offences.
The applicant had amassed a significant record himself in a short period of time. He had breached his CCO, offended while on a suspended sentence and failed to appear having persuaded his Honour to grant him bail. He had relevant prior convictions for criminal damage and dishonesty.
The respondent submitted that upon a proper consideration of all the circumstances, it was ‘clearly open’ for the judge to impose the sentence he did upon the applicant, taking into account that the applicant pleaded guilty to a significantly greater number of offences than Carroll.
Manifest excess: proposed ground 1
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[19] The applicant’s offending was objectively serious. It was protracted, occurring over a three-week period. It was, as the judge said, both brazen and sophisticated. It involved a significant amount of damage to property. It was plainly well planned. General deterrence was, as the judge said, a significant sentencing consideration.[20] Again, as the judge said, the preparedness of the offenders to engage in criminal conduct which involved enormous destruction of property for little gain demonstrated the need for specific deterrence, general deterrence, just punishment and denunciation.[21]
[19]R v Abbott (2007) 170 A Crim R 306.
[20]Reasons [67].
[21]Ibid.
The fact that the applicant’s offending was committed while he was on a suspended gaol sentence, and also on bail for other offences, was an aggravating feature of the applicant’s offending. Notwithstanding the applicant’s relative youth and the other matters relied upon by the applicant on the plea and on this application, when one has regard to the objective seriousness of the applicant’s offending, the total circumstances and the applicant’s antecedents, it cannot be said that the sentence imposed by the judge was wholly outside the range of sentencing options available to him. The applicant’s complaint that the aggregate sentence and the non-parole period are manifestly excessive is wholly without merit.
Similarly, insofar as the applicant sought to contend that there was any issue with respect to totality in relation to his sentence, for the reasons given above, such a contention is also devoid of merit.[22] Finally, and for completeness, I should say that, notwithstanding the applicant’s reliance upon Boulton, nothing said by this Court in that case required the judge to impose some lesser sentence than that actually imposed, or to impose a sentence that consisted of or contained a community correction order. As has been said a number of times now, Boulton is not some sort of ‘get out of gaol free’ card.[23]
[22]See generally, Azzopardi v The Queen (2011) 35 VR 43, 59-63 [56]-[69] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
[23]See for example, Hutchinson v The Queen [2015] VSCA 115, [17] (Priest JA, with whom Ashley JA agreed).
Ground 1 is not reasonably arguable.
Parity: proposed ground 2
As Gaudron, Gummow and Hayne JJ said in Wong v The Queen[24]:
Equal justice requires identity of outcomes in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[25]
[24](2001) 207 CLR 584.
[25]Ibid 608 [65]. See further, Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ).
While the applicant and Carroll were co-offenders in relation to most of Carroll’s offending, I should note for the sake of completeness that the applicant was not involved in the offending committed by Carroll on 1 July 2013. In Farrugia v The Queen,[26] Redlich and Bongiorno JJA said:
While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable, the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender. But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime. Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case.
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.[27]
[26](2011) 32 VR 140.
[27]Ibid 146–147 [26]–[27].
Notwithstanding that Carroll’s offending included offending in respect of which the applicant was not a co-offender, and that the applicant committed offences that did not involve Carroll, I am prepared to assume in the applicant’s favour, and to proceed on the basis that, principles of parity should be given full effect in the circumstances of this case. The question then becomes whether the difference between the applicant’s and Carroll’s sentences is so great as to give rise to a legitimate or justifiable sense of grievance that gives the appearance that justice has not been done.[28]
[28]See, generally, Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.
While it is true that the applicant is significantly younger than Carroll and that Carroll, unlike the applicant, has prior convictions for armed robberies, the fact that the applicant pleaded guilty to more offences, involving a significantly greater amount of damage cannot be overlooked. Further, it is to be remembered that each sentence was affected by a different Renzella discount (Carroll’s greater than the applicant’s) as a result of different periods of ‘dead time’ served by each of them.[29] Undiscounted for these periods, the judge would have sentenced the applicant to an aggregate sentence of 4 years 6 months’ imprisonment with a non-parole period of 3 years, and Carroll to an aggregate sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.[30] Additionally, while Carroll was on bail when he committed his offending, the applicant was not only on bail but also the subject of a suspended gaol sentence.
[29]Reasons [60]–[61].
[30]Ibid.
In all the circumstances, it is simply not possible to say that the longer sentence imposed upon the applicant in respect of his greater offending could give rise to any justifiable sense of grievance or any appearance that justice has not been done. The applicant’s proposed ground 2 is devoid of merit. The application for leave to appeal must be refused.
Finally, and in any event, having regard to all the matters to which I have already referred, the application for leave to appeal must also be refused on the basis that there is no reasonable prospect that a court hearing an appeal in this case would impose a less severe sentence than the sentence imposed by the judge .[31]
[31]See s 280(1) of the Criminal Procedure Act 2009.
Order
The application for leave to appeal is refused.
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