and Mark Kelynack v The Queen
[2013] VSCA 303
•24 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0162 | |
| MARK KELYNACK | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, REDLICH and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 September 2013 |
| DATE OF JUDGMENT | 24 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 303 |
| JUDGMENT APPEALED FROM | DPP v Kelynack (Unreported, County Court of Victoria, Judge Pullen, 27 and 30 July 2012). |
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CRIMINAL LAW – Application to extend time to seek leave to appeal against conviction – Aiding and abetting – Application refused.
CRIMINAL LAW – Appeal against sentence – One charge of aggravated burglary, one charge of intentionally causing injury and one charge of theft – Sentence of five years and six months’ imprisonment with a non-parole period of three years and six months imposed below – Co-offender sentenced by the same judge to two years and six months’ imprisonment with a non-parole period of one year and six months – Parity principle – Difference of three years in the total effective sentences likely to give rise to a justified sense of grievance on behalf of the appellant – Appeal allowed – Appellant resentenced to four years and one month’s imprisonment with a non-parole period of two years and four months’ imprisonment.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Ann Valos Criminal Law |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
Background
On 27 July 2012 the appellant, Mark Aaron Kelynack, was found guilty by a County Court jury of aggravated burglary, intentionally causing injury and theft.[1] The learned sentencing judge imposed the sentences and made the orders set out below.
[1]DPP (Vic) v Kelynack (County Court of Victoria, Judge Pullen, 27 and 30 July 2012) (‘Reasons’).
charge on indictment[2] offence maximum sentence cumulation 1 Aggravated burglary
Crimes Act1958 s 7725 years 4 years, 6 months Base 2 Intentionally cause injury
Crimes Act1958 s 1810 years 18 months 9 months 4 Theft
Crimes Act1958 s 7410 years 6 months 3 months Total Effective Sentence: 5 years, 6 months’ imprisonment Non-Parole Period: 3 years, 6 months’ imprisonment Pre-sentence Detention Declared: 31 days Other orders:
All Victorian licences and/or permits held by the appellant be cancelled and that the offender be disqualified from obtaining any such licence for a period of 12 months from 27 July 2012.[3]
Forensic sample order pursuant to s 464ZF(2) Crimes Act 1958. Pursuant to s 48M of the Sentencing Act1991 the Community Correction Order imposed by the County Court on 19 March 2012, was cancelled and the appellant was resentenced to three and a half months’ imprisonment to be served concurrently with the sentences above. [2]Charge 3, recklessly causing injury, was led as an alternative to charge 2.
[3]This particular order was actually made on 30 July 2012 by the sentencing judge, Judge Pullen, relying on the slip rule that allows an order to be amended within 14 days .
The appellant’s co-offender Tony Raymond Herbath (‘Herbath’) pleaded guilty on 4 June 2012 to the same offences, as well as to an additional charge of theft and an uplifted summary offence. On 13 June 2013 he was sentenced by the same judge as follows:
charge on indictment offence maximum sentence cumulation 1 Aggravated burglary
Crimes Act 1958 s 7725 years 2 years Base 2 Intentionally cause injury
Crimes Act1958 s 18
10 years 8 months 4 months 3 Theft
Crimes Act1958 s 7410 years 3 months 1 month 4 Theft
Crimes Act1958 s 7410 years 3 months 1 month Uplifted related summary offence[4] Careless driving
Road SafetyAct 1986 s 6512 penalty units $300 fine Total Effective Sentence: 2 years, 6 months’ imprisonment Non-Parole Period: 1 year, 6 months’ imprisonment S 6AAA statement: 4 years, 6 months’ imprisonment with a non-parole period of 3 years Pre-sentence Detention Declared: 27 days Other orders:
Forensic sample order pursuant to s 464ZF(2) Crimes Act 1958.
[4]Pursuant to s 145 of the Criminal Procedure Act 2009.
On 29 May 2013 the appellant was granted leave to appeal against his sentence, on the sole ground that it was reasonably arguable that the trial judge had erred in the application of the parity principle.[5]
[5]Kelynack v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Ashley JA, 29 May 2013).
At the hearing of the appeal against sentence the Court sought further details about the basis on which the appellant had been found guilty of aiding and abetting Herbath. As a consequence, counsel for the appellant was given time to consider whether he should apply for an extension of time within which to seek leave to appeal against conviction. The appellant subsequently sought an extension of time seeking leave to appeal against his convictions on the charges of aggravated burglary (charge 1) and intentional infliction of injury (charge 2) on the sole ground that they were unsafe and unsatisfactory. These reasons relate to both the application for an extension of time to seek leave to appeal against conviction and the appeal against sentence. For the sake of convenience Mr Kelynack will be described throughout as the appellant.
The Appeal Against Conviction
The Crown and defence cases
The Crown case against the appellant was that he aided and abetted the co‑offender, Herbath, in committing an aggravated burglary, by directing him to a house in Settlement Road, Geelong, occupied by Shaun Brown (‘Brown’) and others, and accompanying Herbath when he forcibly entered the house, with intent to steal. The Crown also alleged the appellant had encouraged or assisted Herbath to intentionally inflict injury on Brown by hitting him with a baseball bat and that he had aided and abetted him to steal a white station wagon from Brown which the appellant had previously swapped with Brown for three other cars. The Crown did not allege that Kelynack and Herbath had made an agreement to commit the aggravated burglary, or to cause injury to Brown, before they went to the premises.
The defence case was that the appellant had accompanied Herbath when Herbath was driven by his wife Diane to the victims’ house, because he was frightened of Herbath and was trying to help Diane restrain Herbath. The appellant claimed that he had hoped that they would never get to Brown’s house, or that they would be able to delay arriving so that by the time they arrived Herbath would have calmed down. As I explain below, Diane had previously given Herbath valium and either she or the appellant had given him some seroquel tablets. The appellant claimed that he entered the house to help Diane prevent Herbath from offending, and that he had not encouraged or assisted Herbath to enter the house, assault Brown or to steal the car which the appellant had previously swapped with Brown.
The Evidence
The appellant was in a de facto relationship with Herbath’s daughter and they had a young child together. The couple lived next door to Herbath and his partner, Diane. I now summarise the content of the appellant’s record of interview and the evidence of Diane Herbath, Shaun Brown, (the victim of charge 2) and Rebecca Brierley, Joshua Turner-Jacobs and David Lambert, occupants of the house, all of whom were called by the Crown as witnesses at the appellant’s trial.
Appellant’s record of interview
The appellant did not testify. In his record of interview, he said that he woke up about 4.30 am and found his car smashed. He went outside and there was no‑one there. He said that Diane had told him that Herbath had ‘flipped out’ but that ‘I did not get told that he did my car but all we got told that it was to do with these people in Belmont and Colac’.
The appellant said that Diane had asked him to speak to Herbath and when he went to their house, Herbath was sitting at the table with a baseball bat, threatening to kill the perpetrators. He said that both he and his mother in‑law tried to calm Herbath down.
They had driven to the house in Settlement Road and Herbath had not allowed him to try and knock on the door but had just kicked the door straight in. The appellant claimed that he had tried to prevent Herbath going to Brown’s house and had told him he did not have the address. On the way to the house they had gone the longest way possible and put petrol in the car waiting for the pills which had been given to Herbath to ‘kick in’. When Herbath got into the house he had started bashing somebody.
The appellant said that Herbath had told him that the men from Colac or Belmont had smashed the cars. He said he was ‘unhappy’ about what had occurred between him and Sean Brown with the cars and believed he had been ‘ripped off’ by Brown’s flatmates in the swap, but was not in the room when Brown was assaulted. He said that he was frightened and that when he saw what Herbath did to the door of the house he was ‘terrified’. He said he had told the two men in the lounge room that he was trying to stop Herbath.
Diane Herbath
Diane Herbath was interviewed by the police on 1 October 2010 and made a statement to the police on 16 March 2011. She also gave evidence at the trial. There were inconsistencies between her record of interview and her evidence at the trial, which were put to her in cross-examination.
In her record of interview Ms Herbath said that at about 5.45 am on 1 October 2010 she was awoken by her husband, who had been drinking heavily and was angry and agitated, because he believed that the appellant had been ‘ripped off’ over a computer and a car swap in which both he and the appellant had been involved. The computer which Herbath received in the swap was broken.
Herbath went next door to the appellant’s house and yelled at him to come out. His daughter refused to open the door and told him to leave. Herbath then used a baseball bat to smash the windows of the appellant’s two cars. At that stage Ms Herbath said she ‘did not think that Mark even knows that Tony did it.’ However in her evidence at trial she gave a different account about what the appellant had been told about the smashing of the car windows.
Ms Herbath said that after yelling outside his daughter’s house her husband returned home and smashed a table with the bat. Her son was so frightened that he jumped out the window. Ms Herbath said she attempted to calm her husband by making him a coffee and putting valium tablets in it. Her husband kept asking for the appellant because he wanted to go to ‘this guy’s place to get what he’s owed – for what Mark is owed’ and because the computer he got was broken. Ms Herbath said she then went next door twice to try to persuade the appellant to speak with her husband. She told him she had put valium in her husband’s coffee and urged the appellant to ‘just go along’ with him.
Ms Herbath obtained some Seroquel from her daughter and gave it to her husband in a further effort to calm him down. The appellant then went next door to speak to Herbath, who demanded to be taken to Brown’s house or he would smash his home ‘to pieces’. Ms Herbath said that she asked the appellant to come with her because she ‘wanted someone to help me’ and could not control Herbath on her own. The appellant agreed to accompany them to the victims’ house.
Herbath was directed to the victims’ house by the appellant, who was sitting in the back seat of the car. When they got to the victims’ house Herbath kicked open the front door of the premises, and entered, armed with a baseball bat. In her record of interview Ms Herbath said that the appellant had stayed in the car until she went to get him and ask him to help her slow Herbath down. In her later statement and at the trial she said that the three of them had walked in together.
Ms Herbath said that her husband went into another bedroom, yelled at the man in that room and took his mobile phone and money out of his wallet. After Herbath tried to grab a phone from a girl in the house (Rebecca Brierley) who was trying to call the police, Ms Herbath had told her husband to get out of the house. He took the keys to the station wagon which had been swapped with Brown and drove off. Ms Herbath said she did not think that the appellant knew that Mr Herbath had taken the keys. The appellant and Ms Herbath followed Herbath in Ms Herbath’s car. Shortly afterwards Herbath drove the station wagon into the Barwon River. Both Ms Herbath and the appellant were arrested shortly afterwards, but ultimately Ms Herbath was not prosecuted for any offence.
By the time that Ms Herbath gave evidence at the trial, her daughter and the appellant were no longer in a de facto relationship. Contrary to what she said in her record of interview she said that she had told the appellant that her husband had smashed the windows of his car, before they left to go to the victims’ house. In her 16 March 2011 statement to the police and in her evidence at the trial Ms Herbath said that it was the appellant who had suggested that they go to Mr Brown’s house to get his car back. In cross-examination at the trial she denied asking the appellant to come with her because she needed help, although she said she had not thought they would ever get to the house.
Ms Herbath said that the appellant directed her to Brown’s house, and told her to stop there. He had told her to park her car over the driveway, so the occupants could not get their cars out. She said that she and the appellant had both followed her husband inside and the appellant had yelled at the two men asleep in the living room and asked, ‘where’s Brownie’. The appellant had then gone looking for Brown and on finding him had told her husband where he was. When Herbath went into Brown’s bedroom the appellant had told Brown that this would ‘teach him’ and referred to the fact that someone had smashed all his cars. Ms Herbath said that the appellant had not helped her to restrain her husband when he was struggling with Brierley.
Ms Herbath said that while he was in Brown’s room her husband had picked up some car keys. It was put to her in cross-examination that this was inconsistent with her earlier statement to the police that she did not see her husband picking up any keys and her evidence in chief that after they walked out of the house the appellant had opened the door of the station wagon and handed the keys to Herbath.
Ms Herbath did not adequately explain the discrepancies between her evidence at trial and her earlier statements.
Shaun Brown
Brown said that he awoke about 7.00 am and saw the appellant standing at the end of his bed and Herbath standing at the doorway of his room with a baseball bat. He asked the appellant what he was doing there and the appellant said he was there to take his VT station wagon back. Brown had asked him why he wanted to do
that and the appellant said that his unit had been broken into and his cars had been damaged. Brown had told him he knew nothing about this.
Herbath hit him on the elbow with the bat. Herbath had then picked up Brown’s car keys, removed money from his wallet and took two mobile phones. Rebecca Brierley had come to the doorway of Brown’s room and told the men they should leave. Brown said that the appellant was not aggressive while he was in the room but that he was blaming Brown for what had happened to his cars. After a fracas between Herbath and Rebecca Brierley the appellant had said to Herbath ‘let’s get out of here’ and they left.
In cross-examination Brown said that Herbath had picked up the keys but he had not seen him give the keys to the appellant. It was put to Brown that in his earlier statement to the police he had said that the first person he saw was Herbath who said ‘I’ll teach you to run through other person’s houses’. It was also put to Brown that he had not told the police that the appellant was in the room at the time of the assault but had said he had walked in afterwards. Brown said that he must have forgotten to put this in his statement because he knew that the appellant was in the room at the time when the assault was happening. It was also put to him that there were inconsistencies between his evidence that Rebecca had come into the room when Herbath was there and his statement at the preliminary hearing that she had never come into the room but that he could see her because she was standing in the hallway. Mr Brown said he did not see the vehicles leave but heard the cars start up.
Joshua Turner-Jacobs.
Joshua Turner-Jacobs and David Lambert were sleeping in the lounge room of the house when the aggravated burglary occurred. Turner-Jacobs’ evidence was he heard a ‘big bang’ and Herbath, his wife and the appellant walked into the room. Herbath had asked for ‘Brownie’ and then the appellant had asked them if they had any money and said ‘Let’s go to the back of the house and see if Shaun’s there.’ After they left the room he had heard yelling. The appellant had then walked back into the room and asked if Turner-Jacobs or the other man had any money. After the intruders left the house he had heard the appellant tell Herbath ‘You can get in – you can take the VT’. At some stage during the offending, the appellant told the occupants that he had nothing to do with it.[6]
[6]Turner-Jacobs was not clear whether this was said before or after the men went to Brown’s room.
David Lambert
Lambert said that on the evening of the offences he was awoken by a noise and then Herbath, the appellant and Herbath’s wife walked into the room. The appellant asked if Shaun Brown was home and Lambert said he was at work. The appellant then asked Herbath to check the other end of the house. Herbath left the room and the appellant followed him shortly afterwards. Lambert did not hear the appellant say anything when he was out of the room. Lambert heard Brown shout out and then say ‘ow.’ He said that the appellant had come back into the room before Brown yelled out in pain. Lambert has asked the appellant what was going on and he had said: ‘It doesn’t matter. It’s the Hells Angels problem now.’ The appellant had told Lambert that Brown and Lambert’s brother had gone to his house in the middle of the night and smashed windows on his car.
Lambert said that Herbath went out carrying Brown’s keys. He had heard two cars driving off. He had seen Brown’s car, a VT wagon, reversing down the driveway, but had not seen who was driving it.
Rebecca Brierley
Ms Brierley’s evidence was that she heard a noise of crying and a male yelling. When she looked into Brown’s room she saw an old, short man standing in the far corner and also saw the appellant and a woman. She saw the older man take money out of Sean’s wallet which was on a desk in the room. After she was pushed by the older man, she went to her room and rang the police. The old man had struggled with her and tried to grab her phone, but the woman had yelled at him and he had left the house with the other two intruders. She had gone to the front door and saw the older man leaning into the car and talking to the woman and the appellant. She had seen Herbath get into the station wagon, and the cars had driven off.
In cross-examination Ms Brierly was asked whether anything was being said by the three people in Sean Brown’s room when she arrived there. She said:
they were arguing about something that they were accusing him of doing that he was trying to say that he didn’t do because he had work.
Counsels’ submissions
Counsel for the appellant conceded that there was sufficient evidence to leave it open to the jury to find the appellant guilty of theft on the basis that he had aided and abetted Herbath to steal the car. However he submitted that the jury could not have been persuaded beyond reasonable doubt that the appellant had encouraged or assisted Herbath to commit the aggravated burglary or to intentionally injure Brown.
In relation to the aggravated burglary, both Ms Herbath in her record of interview and the appellant said that he had gone along to help Ms Herbath keep her husband under control. In her record of interview Ms Herbath did not say that the appellant followed Herbath into the house when he kicked the door in and the appellant had told the police that he had not been allowed to knock on the door of the house before Herbath kicked it in.
Counsel also submitted that there was no evidence that the appellant had said or done anything to encourage Herbath to hit Brown with the baseball bat. The appellant claimed he was not present in the room when the blow was struck and Lambert’s evidence was that the appellant had returned to the lounge before he heard Brown cry out in pain. Moreover even if the appellant was in Brown’s room when Herbath hit Brown with the bat, the fact that he was present was insufficient for him to be found criminally liable on the basis of aiding and abetting.[7] Diane Herbath’s evidence that the appellant had told Brown that this would ‘teach him’ was contrary to Brown’s evidence that the appellant had simply said he was there to take his VT station wagon back. Moreover the infliction of the injury had occurred in a split second and the appellant could not have been aware that Herbath intended to strike Brown.
[7]R v Lam (2008) 185 A Crim R 453.
Conclusion on conviction appeal
The appellant’s convictions can only be set aside if on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of the charge. In R v Klamo[8] this Court summarised the principles which apply when a court considers whether a claim that a ground of appeal claiming the verdict is unsafe and unsatisfactory is made out.
[8](2008) 18 VR 644, [38]–[39].
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion. In Libke v The Queen,[9] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[10] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[11]
[9](2007) 230 CLR 559 at 596–7, [113].
[10]M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).
[11]See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).
In my opinion it was well open to the jury to convict the appellant for aggravated burglary. The appellant directed Ms Herbath to Brown’s house and told her to stop there. Ms Herbath also said he had instructed her to park her car over the driveway. Although there were inconsistencies between Ms Herbath’s evidence at trial and her earlier statements, which might well have resulted in the jury having doubts about her credibility, no witness gave evidence supporting the appellant’s statement that he had stayed in the car, when they arrived at the house and had only walked in after Herbath kicked the door in. Both Turner‑Jacobs and Lambert said that the three people walked into the lounge room together after both of them heard a noise. Both said that the appellant indicated they were looking for Brown. Although it was Herbath who kicked the door in, he was followed by the appellant. It was well open to the jury to be satisfied that he was motivated to do so either because he wanted to recover the car he had swapped or because Herbath had told him that Brown or one of Brown’s acquaintances had something to do with the damage to his vehicles.
The appellant’s conviction for aiding and abetting Herbath in intentionally inflicting injury on Brown is not quite as clear-cut. However all the witnesses except Lambert placed the appellant in the room when Herbath hit Brown. Although mere presence at the time an offence is committed is insufficient to give rise to criminal liability on the basis of aiding and abetting, Brown said that he was questioned by the appellant about the damage to his car. Both Turner–Jacobs and Lambert also said that when the appellant came into the room he questioned them about Brown’s whereabouts. Brierley said that both men were arguing with Brown about the car. In my opinion the sequence of events permitted the jury to infer, beyond reasonable doubt, that the appellant went to Brown’s room in order to support Herbath in questioning Brown. The fact that Herbath was carrying the bat meant that the appellant must have realised he would use it, if he considered it necessary to do so. It would be unrealistic to treat the intentional infliction of injury on Brown as if it were entirely separate from the preceding events. The appellant participated in the aggravated burglary and did not withdraw when Herbath entered Brown’s room in a state of rage, carrying the baseball bat. Given the fact that the Herbath kicked in the door and entered the house carrying the bat, the appellant must have been aware that Herbath was highly likely to assault the victim and that his presence in the room would assist Herbath in any attack which occurred.
Because I consider that the appeal against conviction cannot succeed on its merits and the filing of the notice of appeal was well out of time, I would refuse the extension of time to file a notice of appeal against conviction.[12]
[12]The notice of leave to appeal conviction was filed on 27 August 2013, well outside the 28 day period to apply for leave specified in s 275(1) of the Criminal Procedure Act 2009.
The appeal against sentence
The sole ground of appeal against sentence was that the disparity between the sentences imposed on the appellant and on Herbath, was such as to give rise to a justifiable sense of grievance on the part of the appellant.
The circumstances of the co-offender
Herbath, who was aged 50 at the date of sentence, pleaded guilty to the offences prior to the committal and the sentencing judge accepted that he was remorseful for his offending. Although he admitted a number of prior court appearances, the sentencing judge found that the other offences were not relevant in sentencing him.[13]
[13]DPP v Herbath (Unreported, County Court of Victoria, Judge Pullen, 13 June 2012), [22].
At the time of the offence Herbath had been on a disability support pension for a number of years. He had had two heart attacks and suffered from diabetes, sleep apnoea, back problems and a long-standing anxiety disorder, for which he was required to take medication and to have regular medical checks. The sentencing judge accepted that his health problems would make imprisonment more burdensome for him than for a healthy offender. She also accepted that Herbath was in a disturbed psychological state at the time of the offending, because of his concern about his daughter’s relationship with the appellant.[14] Her Honour found that Herbath’s prospects of rehabilitation were good and that although specific deterrence was relevant it ‘did not loom large’ in the sentencing process.[15]
[14]Pullen J referred to the report of Dr Joblin to this effect.
[15]Reasons [83].
The circumstances of the appellant
The appellant had a difficult childhood and was taken into state care at an early age.[16] When he was seven he was diagnosed with attention deficit hyperactivity disorder and he has been on various forms of medication for most of his adult life. He was employed in various jobs until 2007, when he injured his back, and he later injured his right shoulder in a motorcycle accident. He was on a disability pension at the time of the offence. He has ongoing pain management problems because of his back and shoulder injuries, for which he requires medication whilst in custody.[17]
[16]Ibid [36].
[17]Ibid [70]
The appellant has four children from a previous marriage, but intervention orders prevented him from seeing them.[18] In 2005, his step-daughter died and some months later a half–sibling died. He had a daughter with Renee Herbath, but when his relationship with her ended he began living with another woman with two children, who cared for him after he had his motorcycle accident. The couple were still together when he was sentenced.
[18]Ibid [49].
The sentencing judge considered a psychiatric report prepared by Associate Professor Richard Harvey of Corio Community Health dated 7 October 2009, who diagnosed the appellant as having an emotionally unstable personality disorder, impulsive type and considered that he had a moderate risk of harming others. She also took account of two psychiatric reports by Dr Lester Walton, the first of which was based on an assessment on 7 October 2011, and prepared for earlier criminal proceedings. At that time Dr Walton considered that the appellant suffered from bouts of depression, suicidal ideation and ‘rapid cycling bipolar disorder,‘ which could be resistant to treatment, but did not observe any psychotic features. Dr Walton maintained the view that the appellant had a bipolar disorder, in a report dated 14 February and prepared for the purpose of sentencing the appellant for these offences.[19] Dr Walton considered that it was likely that the appellant’s mental disorder had made some contribution to his offending, but could not be any more precise.[20]
[19]Ibid [53]-[55].
[20]Ibid [59].
In sentencing the appellant her Honour accepted that he had mental health problems and issues with pain management. She said that:[21]
It is apparent, however, that you have had long standing mental health issues and that your difficulties include what Dr Walton referred to as your lack of ability to deal with impulsive decisions. Given the circumstances in which you attended at the property and were involved in the offending before me in October 2010, it seemed to me that there was some difficulty with the direct link between your mental health and your offending. However, I have accepted your counsel’s submission and the conclusion of Dr Walton, that there be some moderation of your offending in relation to the re-statement of the Tsiaras[22] principles in Verdins [23], … specifically principles 1, 2, 5 and 6, as having application in your case. You have ongoing pain management issues relating to your back and shoulder injury and there is a need for you to obtain appropriate medication whilst in custody. I note you have to date been in protective custody and that is relevant also when determining the appropriate sentence. Beyond your sentencing date, of course, whether or not you remain in protective custody and/or the type of any protective custody that you are involved in is speculation, and on that point see R v Males.[24]
[21]Ibid [70].
[22][1996] 1 VR 398.
[23][2007] VSCA 102.
[24][2007] VSCA 302.
The appellant has an extensive criminal history, dating back to 1999. It includes convictions for unlawful assault,[25] assaulting police[26] recklessly causing injury,[27] and making a threat to kill,[28] as well as numerous dishonesty and driving offences. The judge observed that the appellant had previously breached a suspended sentence and community based orders, and took a guarded view as to his prospects of rehabilitation.
[25]2/9/2002, 16/6/2004, 24/4/2006, 19/8/2008.
[26]18/10/2005, 24/4/2006.
[27]2/9/2002, 16/6/2004; also reckless conduct endangering injury 19/8/2008.
[28]18/10/2005, 24/4/2006.
On 19 March 2012, following the appellant’s appeal against a sentence imposed in the Magistrates’ Court, his Honour Judge Allan imposed a community corrections order on him for three charges of criminal damage, two charges of unlawful assault and one charge of possessing a dangerous article.[29] Those offences occurred on 13 February 2011 (that is after the offences to which this appeal relates) when the appellant screamed and yelled at the female victims and damaged a number of cars with a hammer.
[29]Reasons [20].
As a result of the offending to which this appeal relates, the appellant was unable to comply with the conditions of the community corrections order and was re-sentenced to three and a half months’ imprisonment, to be served concurrently with these sentences.[30]
[30]Sentencing Act1991, s 48(M)(a).
The judge’s reasons
It is clear that her Honour took account of the principle of parity. The judge said the following:
I regard your culpability as approximately equal to that of your co-offender, Mr Herbath. I am bound and do take into account the principles of parity, yes, there is a co-offender. The principles in R v. Taudevin[31] and Postiglione v. R[32] are applicable.
I discussed with Mr Reynolds the similarities and differences between yourself and Mr Herbath for the purposes of parity and sentencing. There are a number of features that distinguish you from Mr Herbath. (1) Mr Herbath did not have any relevant prior convictions, you have a number for violence. Your criminal record is also more extensive than Mr Herbath. (2) Mr Herbath pleaded guilty to the offences before me, you pleaded not guilty, which of course was your right, however because you pleaded not guilty, you do not receive a discount for pleading guilty. Mr Herbath did not proceed to a contested committal. (3) I am conscious Mr Herbath was the one with the baseball bat and that you did not have a weapon when you attended at the property. (4) It was also Mr Herbath who took the mobile phones, kicked the door to the house in and drove the car from the property and got involved with the altercation with Ms Brearley. (5) Verdins principles applied to both you and Mr Herbath.
It seems to me, to be a greater need for specific deterrence when sentencing you, given your extensive criminal history and relevant criminal history. I accept that whilst you were found guilty on the basis of aiding and abetting, you are to be sentenced as a principal offender in this matter. I accept you had a lesser role than Mr Herbath, at the house.[33]
[31][1996] 2 VR 402.
[32][1997] 189 CLR 295.
[33]Reasons [70]-[72].
The appellant concedes, as he must, that the trial judge took account of parity and correctly identified the features that distinguished the circumstances of the appellant from those of Herbath. However, he submits that the trial judge failed to take into account the unusual circumstances preceding the offence. He argues that her Honour should have given greater weight to the fact that the offending was initiated by Herbath, that when the appellant suggested going to the victim’s house to recover the car he was attempting to propitiate Herbath and had hoped that Herbath would fall asleep because valium had been slipped into his coffee and that it was not until the men entered the house that he became involved in Herbath’s criminal enterprise. Although the appellant may have taken advantage of his presence in the house to ask Turner-Jacobs and Lambert if they had any money and to question Brown about the damage to his cars, he was not as morally culpable as Herbath. Indeed Herbath had lured the appellant into becoming involved by
allowing him to believe that his cars had been damaged by people associated with Brown.
The Crown conceded that the judge had not taken account of the role which Herbath had played in persuading the appellant to accompany him, by allowing him to believe that his cars had been damaged by Brown or persons associated with him. However she submitted that although Herbath’s lie played a part in the offending, the appellant chose to encourage and assist Herbath. The disparity between the sentences imposed on the appellant and on Herbath reflected the appellant’s prior criminal history, the appellant’s poorer prospects of rehabilitation and the fact that he did not plead guilty.
Conclusion on sentence appeal
There were differences in the moral culpability of the offenders, their personal circumstances and their prior history of offending. In assessing the appellant’s moral culpability, the court must take account of the fact that he was not compelled to make the trip to the house by Herbath, although he may have been motivated in part by his desire to assist Diane Herbath, and that once he was there he was actively involved in the offending.
Her Honour was required to sentence both co-offenders on a basis which adequately recognised Herbath’s role as the initiator of the offending. It was Herbath who smashed the window of the appellant’s car, and allowed him to believe that this damage had been done by Brown or his acquaintances. It was Herbath who kicked down the door into the house, wielded the baseball bat and inflicted the injury on Mr Brown. In these circumstances I consider that the judge erred when she said that the appellant’s culpability was ‘approximately equal’ to that of his co‑offender.
Moreover, even if the judge was entitled to treat the appellant’s moral culpability as ‘approximately equal’ to that of Herbath, (which I do not accept) the differences in the circumstances of the co-offenders, including the appellant’s prior criminal history, Herbath’s guilty plea and the appellant’s poorer prospects of rehabilitation do not justify the difference of two years and six months in the sentence imposed for aggravated burglary, or the three year difference in the total effective sentences imposed on the co-offenders.
This suggests that in sentencing the appellant her Honour gave too much weight to the appellant’s prior convictions. As Mason CJ, Brennan, Dawson and Toohey JJ observed in Veen No 2:[34]
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences... .[35]
[34](1988) 164 CLR 465.
[35]Ibid 477.
Her Honour was clearly entitled to take the view that the appellant’s prior criminal history made his prospects of rehabilitation uncertain and required greater emphasis to be placed on specific deterrence and on the protection of the community than was required in sentencing Herbath.[36] But the difference in the sentences imposed for the same offences fell outside the range of the reasonable exercise of her Honour’s sentencing discretion and was such as to give rise to a justifiable sense of grievance in the appellant.[37]
[36]Ibid 477-478. See also R v O’Brien and Gloster [1997] 2 VR 714, 718.
[37] Lowev The Queen (1984) 154 CLR 606.
Although Herbath had serious health problems and pleaded guilty, the sentence imposed on him was lenient. That is the case even though he was sentenced prior to the decision of this Court in Hogarth v The Queen.[38] However the court must have regard to Herbath’s sentence,[39] as well as other relevant sentencing considerations, in re-sentencing the appellant. I would re-sentence him as follows:
[38][2012] VSCA 302, [58]-[62].
[39]Unlike HAH v R; HAT v R [2011] VSCA 427, [121]-[122] the other co-offender was not before the Court.
offence sentence cumulation Aggravated burglary 3 years, 8 months Base sentence Intentionally cause injury 8 months 4 months Theft 4 months 1 month Total Effective Sentence: 4 years, 1 month’s imprisonment Non-parole period 2 years, 4 months’ imprisonment All other ancillary orders are confirmed.
REDLICH JA:
For the reasons given by Neave JA, I would refuse the application for an extension of time within which to seek leave to appeal against conviction. I also agree with Neave JA that the appeal against sentence should be allowed. The appellant should be re-sentenced as her Honour proposes.
COGHLAN JA:
I have had the advantage of reading the draft reasons of Neave JA and agree for the reasons expressed by her Honour that the application for an extension of time within which to seek leave to appeal against conviction should be refused. I also agree that the appeal against sentence should be allowed and the appellant re-sentenced as proposed by her Honour.
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