and the Queen v Nicholas Vella , , the Queen and Jack Ray

[2014] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0083
THE QUEEN	Appellant
v
NICHOLAS VELLA	Respondent
S APCR 2014 0084
THE QUEEN	Appellant
v
JACK RAY	Respondent

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JUDGES:	MAXWELL P, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2014
DATE OF JUDGMENT:	26 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 140
JUDGMENT APPEALED FROM:	[2014] VSC 165 (T Forrest J)

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CRIMINAL LAW – Appeal – Crown appeal against sentence – One charge of aggravated burglary – One charge of false imprisonment – Serious offending – Powerful competing factors – Youthful offenders – No relevant prior convictions – Remorse – Good prospects of rehabilitation – Whether total effective sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months’ imprisonment manifestly inadequate – Whether total effective sentence of 3 years and 6 months with a non-parole period of 2 years’ imprisonment manifestly inadequate – Hogarth v The Queen [2012] VSCA 302 referred to – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Grant	Craig Hyland, Solicitor for Public Prosecutions
For the Respondent, Nicholas Vella	Mr S R Johns and Mr S Norton	Robert Stary Lawyers
For the Respondent, Jack Ray	Mr D A Dann and Mr M Hume	James Dowsley & Associates

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MAXWELL P
WHELAN JA

BEACH JA:

Introduction

1. The respondents, Nicholas Vella and Jack Ray, were convicted by a jury of the crimes of aggravated burglary and false imprisonment.  Their convictions followed acquittals on charges of manslaughter, after successful no case submissions were made on their behalves.  Following plea hearings, the respondents were sentenced as follows:

Nicholas Vella:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary[s 77 Crimes Act 1958]	25 years [s 77(2) Crimes Act1958]	2 years 9 months	Base
2	Manslaughter contrary to common law	20 years [s 5 Crimes Act1958]	Not guilty after successful non case submission
3	False imprisonment [s 17 Crimes Act1958]	10 years [s 320 Crimes Act1958]	1 year 9 months	6 months
Total Effective Sentence:		3 years 3 months
Non-Parole Period:		1 year 9 months
Pre-sentence Detention Declared:		525 days
6AAA Statement:		Not applicable[1]

[1]However, in sentencing Vella, the judge said that, but for an offer at a relatively early stage to plead guilty to the charges upon which Vella was found guilty, the Court would have sentenced Vella to a total effective sentence of three years and six months’ imprisonment with a non-parole period of two years.

Jack Ray:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary[s 77 Crimes Act 1958]	25 years [s 77(2) Crimes Act1958]	3 years	Base
2	Manslaughter contrary to common law	20 years [s 5 Crimes Act1958]	Not guilty after successful non case submission
3	False imprisonment [s 17 Crimes Act1958]	10 years [s 320 Crimes Act1958]	2 years	6 months
Total Effective Sentence:		3 years 6 months
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		287 days
6AAA Statement:		Not applicable

1. Pursuant to s 287 of the Criminal Procedure Act 2009, the Director of Public Prosecutions has appealed against the sentences imposed.  The single ground of appeal in both matters is:

1.The individual sentences and orders for cumulation, the total effective sentence and non-parole period are manifestly inadequate.

In fixing the sentence set out above in this Notice of Appeal, the sentencing judge –

(a) failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;

(b)failed to have sufficient regard to the nature and gravity of the offence, and in particular, failed to fix a sentence commensurate with the characterisation of the offending as ‘serious’;

(c)failed to have sufficient regard to the maximum penalty prescribed for the offences;

(d)failed to have sufficient regard to current sentencing practices (in light of Hogarth v The Queen [2012] VSCA 302);

(e) gave excessive weight to factors in mitigation including the respondent’s relative youth, guilty plea, prospects of rehabilitation, level of remorse, and limited criminal history;  and

(f) failed to order sufficient cumulation on the charge of false imprisonment which resulted in a total effective sentence that was manifestly inadequate in all the circumstances.

1. Immediately it will be noted that the reference to guilty pleas in paragraphs (e) of the grounds in each case is inapposite.  In Vella’s case there was an offer at a relatively early stage to plead guilty to the charges upon which he was found guilty.  However, as the trial judge noted, both respondents pleaded not guilty to the charges upon which they were convicted.[2]

   [2]R v Ray and Vella [2014] VSC 165, [19], [20] and [22] (‘Reasons’).

The offending

1. It is not necessary to set out all of the events that led to the offences for which the respondents were convicted.  These are set out in the judge’s reasons for sentence.[3]  It is sufficient to say that by reason of the respondents’ belief that the victim, a person whose life was by then characterised by drug abuse, drug dealing and handling stolen goods, was involved in the handling of goods stolen from friends of the respondent Vella, and was also involved in the theft of property from the respondent Ray’s premises.  As the judge put it, by the time of the offending, relations were sufficiently strained between the respondents on the one hand, and the victim on the other hand, that the respondents implemented a plan to go to the victim’s house, enter it and assault him.  This was the basis for the conviction on charge 1.

   [3]Ibid [2]–[8].

1. The prosecution argued at trial that the respondents’ motive was revenge.  The judge was satisfied that in part the respondents’ motive was retribution, but he also considered it likely that the respondents wished to search for and retrieve stolen property, including items stolen from the premises of the respondent Ray.

1. Having entered the victim’s house, the respondents struck the victim several times to the face to the point where he was sufficiently subdued that they could bind his ankles with duct tape and his wrists with polythene cable ties.  The victim was assaulted in the hall/living room area of his house and bound at that location.  He was then dragged over a carpeted surface.  The judge found that bruising to the victim’s back and the back of his head may have come from direct blunt force trauma applied by one of the respondents, or it may have resulted from the victim struggling after he was bound and perhaps falling off a bed.  Either way, as the judge noted, both respondents were responsible for those injuries as having arisen directly from the false imprisonment aspect of their offending. 

1. Not long after the respondents had left the house, the victim was found dead.  Subsequent forensic investigation revealed an undiagnosed heart condition and a high methylamphetamine reading.  After carefully reviewing all of the evidence, which included expert medical and toxicological evidence, the trial judge found that, taking the prosecution case at its highest, the evidence was not capable of establishing that any breach of duty by the respondents contributed significantly to the death or was a substantial or operating cause of the death.[4]  That is why no case submissions on the manslaughter charges were accepted, and why verdicts of not guilty were entered on those charges.  The respondents cannot be sentenced on these charges as if they bear responsibility for the death.  The findings made by the judge, which are not in contest on this appeal, are that they do not bear that responsibility. 

   [4]R v Ray & Vella (Ruling No 3) [2014] VSC 178, esp [32], [38] and [41].

The judge’s sentences

1. In sentencing the respondents, the judge said that he was not satisfied beyond reasonable doubt that the false imprisonment aspect to their offending was planned in advance.  The duct tape and the polythene cable ties were available at the victim’s house and it may be, as the judge said, that the respondents’ efforts to restrain the victim were opportunistic rather than pre-planned.[5]

   [5]Reasons [2014] VSC 165, [9].

1. At the plea hearing, the prosecution invited the judge to conclude that the respondents left the victim bound at a time when they must have been aware that he was in distress, and that this was an aggravating factor attaching to the false imprisonment charges.  However, the judge concluded that he was not satisfied of this matter beyond reasonable doubt.  The judge held that it was equally possible that the victim’s distress did not commence until after the respondents left, or that it was brief and the victim died before they left.[6]  With respect, one cannot fault this conclusion.

   [6]Ibid [10].

1. In characterising the offending, the judge said that he regarded charge 1 as a serious example of a confrontational aggravated burglary.  He also regarded the false imprisonment offending as serious.[7]  These characterisations cannot be gainsaid.  However, as the judge said, in sentencing the respondents care needed to be taken to avoid double punishment for aspects of the offences that overlapped.  That said, as the judge noted, some cumulation was necessary.

   [7]Ibid [11].

1. Having emphasised that it was no part of the sentencing exercise to punish the respondents for causing the victim’s death, the judge then turned to factors personal to each of the respondents.

1. At the time of the offending, the respondent Vella was 23 years of age and the respondent Ray was 20 years of age.  There were no relevant prior convictions.[8]

   [8]The respondent Ray having a minor prior Children’s Court appearance which the judge regarded as irrelevant. 

1. The judge detailed the work histories, work ethics and impressive character evidence in relation to each respondent, describing their backgrounds as solid.  The fact that neither of the respondents came from a background that one ordinarily sees in cases of confrontational aggravated burglaries made, as the judge said, the respondents’ conduct hard to comprehend.  As the judge put it, it also made the sentencing exercise a difficult one ‘with powerful competing factors’.[9]

   [9]Ibid [13]–[17].

1. The judge found both respondents to be remorseful, and took this into account in their favour.[10]  There is no suggestion that his Honour erred in respect of these findings.  Significant remorse was demonstrated by both respondents.

   [10]Ibid [19]–[21].

1. While the judge took into account the respondent Vella’s offer to plead guilty to aggravated burglary and false imprisonment shortly after the committal, the judge noted that when Vella was indicted on all three charges he pleaded not guilty to all of them.  Similarly, the judge noted that after the verdict of not guilty to manslaughter was entered at the end of the Crown case, the respondent Vella continued with his other pleas of not guilty until verdict.  In sentencing the respondent Vella, the judge said that he discounted the benefit he would normally allow to reflect these matters.[11]

   [11]Ibid [22].

1. The judge then concluded:

In all other respects, I am unable to distinguish your respective positions.  As I indicated during the plea, I consider you both have excellent prospects for rehabilitation, and I do not consider there is any need for specific deterrence.

I am of the view however that your conduct requires the aspects of punishment, denunciation and general deterrence to be given some weight in this sentencing process.  The Court of Appeal has made it abundantly clear that confrontational home invasions usually ought attract stern punishment.

I am obliged to take into account the impact of your offending on the Meade family, who have made moving Victim Impact Statements.  I cannot punish you for their loved son’s death, but I do take into account the impact upon them of your conduct immediately leading up to Chris Meade’s death.

After much consideration, I have softened the impact of general deterrence, denunciation and punishment in deference to your youth and future prospects.  Although you Mr Vella were not strictly a ‘young adult offender’ at the time of the commission of the offences at 23 you were still young and the SMS messages between you and Mr Ray demonstrate a singular lack of maturity on both your behalves.  I consider that the community has a vital interest in your rehabilitations.  You have much to offer if that rehabilitation can be achieved, and the community will be the better for it.[12]

[12]Ibid [24].

The resolution of these appeals

1. It is plain from the judge’s reasons for sentence that the judge gave careful consideration to all of the matters capable of bearing upon the proper sentences to be imposed in these cases.  As the judge noted, these were difficult sentencing exercises having regard to powerful competing factors.  The seriousness of the offending had to be weighed carefully against the matters identified by the judge as telling in favour of the respondents.[13]

   [13]Cf R v Wyley [2009] VSCA 17, [20]­–[23] (Maxwell P).

1. In the appellant’s written case, the appellant submitted that the sentences imposed ‘are so far below the revised guidepost set by Hogarth v The Queen[14] for confrontational aggravated burglary that they patently bespeak of error, and simply do not reflect the objective gravity of the offending or provide for sufficient public denunciation and general deterrence’.

   [14][2012] VSCA 302 (‘Hogarth’).

1. In Hogarth, the offender, AH, was sentenced to four-and-a-half years’ imprisonment on a count of aggravated burglary.  This Court said in Hogarth that that sentence highlighted the inadequacy of then current sentencing practices for confrontational aggravated burglaries.[15]  After analysing a large number of cases involving sentences for aggravated burglary, the Court concluded that if the constraints of current sentencing practices were removed, ‘the applicable range for the sentencing of AH would be a total effective sentence of six to eight years, with a non-parole period of four to six years’.[16]  Contrary to the appellant’s written case, Hogarth did not set a revised guidepost for confrontational aggravated burglaries generally.  The ranges referred to in Hogarth only related to the appellant in that case.  Counsel for the Director properly conceded this morning that that was so.

   [15]Ibid [6].

   [16]Ibid [63].

1. The facts in Hogarth may be contrasted with the facts in the present case.  In Hogarth, the offender AH was a party to a home invasion which had all of what the Court in that case described as the ‘typical characteristics’ of this ‘particularly nasty form of criminal conduct’.  Multiple offenders entered a home, carrying weapons, intending to rob or injure in revenge for a perceived wrong, acting in anger, and fuelled by alcohol.  The home invasion to which AH was a party involved the assault upon, and terrorization of, the target’s mother in her own home (not the home of the target, her son), in circumstances where she had nothing to do with the perceived wrong.  Items to the value of $25,000 were stolen.  That home invasion was clearly of a significantly more serious character than the one perpetrated by the respondents.  Further, whereas the respondents are young with no relevant prior convictions, AH had relevant prior convictions, including a prior conviction for aggravated burglary, had previously served a term of imprisonment, and had completed a period of parole not long prior to the offending.

1. In any event, the judge’s reasons disclose that he was acutely aware of the existence and effect of Hogarth.  To the extent that the appellant submitted that the judge had somehow failed to take into account, or give proper regard to, Hogarth, that submission must be rejected.

1. There can be no doubt that the sentences imposed in these cases were at the lower end of the range.  However, there was good reason for this.  The relative youthfulness of the respondents, the evidence of their previous good character, their significant remorse and their very significant prospects for rehabilitation all told in favour of sentences at the lower end of the range being imposed upon them.  In all of the circumstances, which were, with respect, most carefully considered by the judge, we are unable to conclude that any of the sentences and orders made by the judge were manifestly inadequate.  The sentences imposed were within bounds, albeit, as we have said, at the lower ends of the permissible ranges.

1. In conclusion, we wish to emphasise what the Court said in Hogarth,[17] that ‘the necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases’. This case is part of that process. As counsel for the Director conceded, the tables attached to the judgment in Hogarth show youthful first offenders like the respondents have in the past attracted much lower sentences for this serious offence than those which the judge imposed here.  He further conceded that the sentences imposed on the respondents reflected a change in sentencing practices.  The Director's appeals were doubtless directed at furthering the change in sentencing practice. For the reasons we have given, however, this case was not the appropriate vehicle.

   [17]Ibid [62].

Conclusion

1. There is no basis for interfering with the sentences imposed by the judge.  These appeals must be dismissed.

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