Ashley Luke Powell v The King
[2023] VSCA 235
•28 September 2023
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2023 0135
| ASHLEY LUKE POWELL | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | BEACH, WALKER JJA and HOLLINGWORTH AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 September 2023 |
| DATE OF JUDGMENT: | 28 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 235 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1126 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Assist offender and related summary offences – Guilty plea – Sentence of 3 years 4 months’ imprisonment – Non-parole period of 18 months – Concession that sentence manifestly excessive – Sentencing discretion re-opened – Whether
victim impact statement admissible when re-exercising sentencing discretion – Victim impact statement inadmissible – Mitigating factors including guilty plea, cooperation with police and PTSD – Current sentencing practices considered – Appeal allowed – Resentenced to 20 months’ imprisonment – Non-parole period 12 months.
Sentencing Act 1991 ss 3, 5, 8L.
Landmark v The Queen [2015] VSCA 178 discussed.
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Counsel
| Applicant: | Ms G Connelly |
| Respondent: | Mr P Bourke KC |
| Solicitors | |
| Applicant: | James Dowsley & Associates |
Respondent: BEACH JA | Ms A Hogan, Solicitor for Public Prosecutions |
| WALKER JA HOLLINGWORTH AJA: |
1 On 9 November 2021, in a tragic sequence of events, RJ drove erratically and at high speed on Hall Road, where Timmy Rakei and Shaun Kilmartin were setting up roadworks signs. They had earlier placed warning signs ahead of the area in which they were working, but RJ failed to heed those warning signs, or the reduced speed limit of
40km per hour. RJ’s car hit Mr Rakei and then Mr Kilmartin, killing Mr Rakei and
seriously injuring Mr Kilmartin. After the collision, RJ made a phone call and ran away from the area. Shortly afterwards the applicant, driving a black SUV, picked RJ up from
the side of the road and drove him back to the applicant’s partner’s home. At some stage
after arriving there, the applicant became aware that RJ had been involved in a serious collision in which a person had died. The applicant nonetheless continued to assist RJ.
2 First, RJ and the applicant drove away together in the black SUV. It is not known who was driving. The police attempted to intercept the car, activating emergency lights and angling their car so as to block the road. The driver of the car then accelerated heavily towards the police car and then past it. The SUV then drove onto the wrong side of the road, mounted the kerb, travelled across the nature strip and footpath and drove into parkland at speed, before returning to the road. Police then abandoned their attempts to intercept the car.
3 At 11:15 am that day, the black SUV was seen entering a park in Frankston South and
witnesses saw either the applicant or RJ get out of the car, go around to the driver’s side
and then return to the passenger side shortly thereafter wearing different clothing. The witnesses noticed smoke coming from the area where either the applicant or RJ had been. The car then sped off quickly and left the park. The witnesses went to where the smoke was coming from and saw a fire, which appeared to be burning a pile of clothes. Police later retrieved partially burnt clothes that had been worn by the applicant and RJ.
4 Later that day, the applicant permitted RJ to take the black SUV, knowing that he would use it to continue to try to avoid apprehension.
5 The applicant was charged with an indictable offence, assisting an offender contrary to s 325 of the Crimes Act 1958. The charge was as follows:[1]
[The applicant], knowing that [RJ] had committed a serious indictable offence, namely Culpable Driving Causing Death, without lawful excuse and with the purpose of impeding the apprehension of [RJ] drove the said [RJ] away from the area of Carrum Downs, disposed of various items of clothing, and provided [RJ] a vehicle.
[1]
6 The applicant was also charged with two summary offences, of driving while disqualified.
7 In June 2023, the applicant pleaded guilty to those three offences in the County Court.
At the plea hearing Mr Rakei’s partner of 10 years, Ms Boyte, read to the court a victim impact statement in which she eloquently described to the court the effect of Mr Rakei’s
death on her and their children.
8 In July 2023 the applicant was sentenced for this offending as follows:
Charge on
Offence Max Penalty Sentence Cumulation
Indictment
Assist offender (culpable
1 5 years 3 years Base driving)[2]
[2]
Related Summary Offences
240 penalty
2 Drive while disqualified[3] units or 6 months 2 months 2 years 240 penalty 9 Drive while disqualified[4] units or 6 months 2 months 2 years [3]
[4]
Total Effective Sentence: 3 years 4 months’ imprisonment Non-Parole Period: 18 months Pre-sentence Detention Declared: 412 days Total Effective Sentence 5 years Section 6AAA Statement: Non-parole Period 3 years Other Relevant Orders: 1. Licences cancelled and disqualified for 12 months from 3 July 2023
9 The applicant now seeks leave to appeal against the sentence imposed upon him, on two proposed grounds:[5]
[5]
1. The sentencing discretion miscarried because of the treatment of the victim impact statement, specifically:
a.
Her Honour erred in having regard to the victim impact statement at all in sentencing the applicant; and
b. Her Honour erred in finding that the applicant’s offending “prolonged the agony suffered by Ms. Boyte on the day that her
partner was killed, knowing, no doubt, that someone, being you, helped the alleged principal offender try to get away with causing
her partner’s death” in circumstances where there was no evidentiary
foundation for that finding.
2. The sentence on charge 1, the total effective sentence and non-parole period are manifestly excessive.
10 In relation to ground 1, the applicant seeks to have resolved a question concerning the use of victim impact statements in cases concerning a person who assists the principal
offender after the offence and who is thus not a party to the principal’s offence.
11 At the hearing of the application for leave to appeal, the respondent conceded that the total effective sentence imposed on the applicant was manifestly excessive. We consider that concession was properly made. In light of it, we would grant leave to appeal and allow the appeal on ground 2. In those circumstances it is unnecessary for us to deal separately with ground 1. However, as we explain below, it is necessary for us to deal with the issues raised by ground 1 in order for us to re-exercise the sentencing discretion.
12 The sentencing discretion having been re-opened, we would re-sentence the applicant as follows:
Charge on
Offence Max Penalty Sentence Cumulation
Indictment
Assist offender (culpable
1 5 years 16 months Base driving)[6]
[6]
Related Summary Offences
240 penalty
2 Drive while disqualified[7] units or 6 months 2 months 2 years 240 penalty 9 Drive while disqualified[8] units or 6 months 2 months 2 years [7]
[8]
Total Effective Sentence: 20 months’ imprisonment Non-Parole Period: 12 months Pre-sentence Detention Declared: 451 days Total Effective Sentence 3 years Section 6AAA Statement: Non-parole Period 2 years Other Relevant Orders: 1. Licences cancelled and disqualified for 12 months from 3 July 2023
Ground 1
13 Ground 1 is that the sentencing discretion miscarried because of the sentencing judge’s
treatment of the victim impact statement. It has two aspects:
(a)
first, that the sentencing judge erred in having regard to the victim impact statement at all; and
(b) secondly, that the sentencing judge erred in finding that the applicant’s offending ‘prolonged the agony suffered by Ms Boyte’ when she ‘no doubt’ knew that
someone helped the principal offender try to get away with causing her partner’s
death, in circumstances where there was no evidentiary foundation for that
finding.
14 Ground 1 is premised on the submission that, in relation to an offence, ‘a victim is someone whose injury, loss or damage is suffered as a direct result of the offence’.[9] In
[9]
so submitting, the applicant relied upon the definition in s 3(1) of the Sentencing
Act 1991:victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;
The word ‘victim’ is then, relevantly for present purposes, used in the Sentencing Act
in ss 5(2)(daa) and (da) (which set out matters to which a sentencing judge must have
regard) and div 1C (which deals with victim impact statements).
(a) Sections 5(2)(daa) and (da) require a court sentencing an offender to have regard to ‘the impact of the offence on any victim of the offence’ and ‘the personal
circumstances of any victim of the offence’.
(b) Division 1C relevantly contains s 8K, which permits a victim of an offence to make a victim impact statement, and s 8L(1), which provides that a victim impact statement ‘contains particulars of the impact of the offence on the victim and of
any injury, loss or damage suffered by the victim as a direct result of the offence’.
16 In that statutory context, the applicant argued that the judge was not permitted to have
regard to the victim impact statement at all, because Ms Boyte was not a ‘victim’ within
the meaning of the definition in s 3(1). He sought to have resolved a point mentioned, but not resolved, by this Court in Landmark v The Queen.[10] In that case the offender had pleaded guilty in the Supreme Court at Warrnambool to one charge of assisting another offender believed to have committed the offence of intentionally causing serious injury for the purpose of impeding the apprehension, prosecution, conviction, or punishment of the other offender. The sentencing judge had taken into account two victim impact statements. The offender submitted that the authors of the victim impact
[10]
statement did not fall within the definition of ‘victim’, because any ‘injury, loss or
damage’ that they had sustained was as a result of the victim’s death, not of his actions.
In other words, they were victims only of the offence of defensive homicide, an offence to which the offender was not a party. The only way in which they could properly be seen as victims of the offence committed by the offender was if it could be established that they were directly impacted by the particular assistance that he provided to the other
offender after the event, as distinct from any impact arising from the fact of the victim’s
death itself. The offender had submitted that no such direct impact could be established
in his case.17 Weinberg JA refused leave to appeal in Landmark. In doing so, he said as follows:
One might instinctively baulk at the proposition that the loved ones of a deceased are not properly to be regarded as having been affected by the conduct of a person who has rendered assistance to the perpetrator of the crime,
essentially for the purpose of ‘covering up’ that offence. However, it may be
that, having regard to the words of the statute, and the particular circumstances
of this case, the applicant’s contention that the relevant persons do not meet the
statutory definition of a victim is reasonably arguable.
Ultimately, however, it is unnecessary for me to decide this point. That is because, for the reasons set out in relation to ground 4 below, I have come to the view that there is no reasonable prospect that this Court would impose a less severe sentence than the one imposed by her Honour even if this point were to succeed.[11]
[11]
18 In contrast, the respondent submitted that this case could be distinguished from Landmark. The respondent accepted that the victim impact statement itself did not assert the impact described by the sentencing judge. However, it was submitted that her
Honour was entitled to draw the inference that the applicant’s assistance of the principal
would have such an impact. The respondent also observed that the prosecutor on the plea invited her Honour to draw such a conclusion, without objection from defence counsel,[12] and that in drawing that inference, it was appropriate for the sentencing judge to have regard to the whole of the victim impact statement.
[12]
19 As noted above, it is not necessary for us to determine this ground of appeal, but we have set out the arguments of the parties in relation to it because those arguments assume some relevance on the re-sentencing of the applicant by this Court.
Ground 2
20 Ground 2 is that the total effective sentence imposed by the sentencing judge was manifestly excessive.
21 As we noted above, the respondent conceded that ground 2 was made out. We consider that concession was properly made, in circumstances where there had been a plea of
guilty that attracted the ‘Worboyes discount’, but the sentence imposed was 60 per cent
of the maximum sentence. That conclusion is fortified when one has regard to the comparable cases for offending of this kind and level of seriousness to which we were referred (and which we discuss further, below). The respondent accepted that it had
been unable to find a case in which a sentence of 3 years’ imprisonment (or more) had
been imposed for the offence of assist offender.
22 We would thus allow the appeal on ground 2.
Re-sentencing
23 Given our conclusion on ground 2, the sentencing discretion is reopened. However, before turning to our exercise of that discretion, it is appropriate to explain the relevance, if any, of the victim impact statement tendered before the sentencing judge to our decision concerning the appropriate sentence.
The definition of ‘victim’ in s 3(1) of the Sentencing Act is in clear terms: a victim
means a person who has suffered injury, loss or damage — including grief, distress or trauma — ‘as a direct result of the offence’. That is, there must be a direct causal
connection between the offence in question and the injury suffered. The authorities make it clear that a family member who experiences grief and distress at the loss of a
loved one can fall within this definition of ‘victim’.[13]
[13]
25 Furthermore, the requirement that the causal connection between the offending and the
loss or injury suffered be ‘direct’ does not exclude a victim impact statement in a case
in which an offender provides assistance to a principal offender after the offence is
complete. A person could properly be characterised as a ‘victim’ (as defined) of the
assistance offence if it could be established that they were affected by the particular assistance that the offender provided after the principal offence, as distinct from any impact arising from the fact of the principal offence itself. One example might be an offender who assists in disposing of a body, in a manner that is distressing to the family of the victim.
26 In the present case, Ms Boyte’s victim impact statement sets out in considerable detail the devastating consequences suffered as a result of Mr Rakei’s death. She explained
her grief over losing her partner of 10 years, how she felt the day he was killed, her reaction to the way he was killed, how difficult it was to go to the morgue to identify
his body, the effect on her of reading the coroner’s report, which listed the injuries he
had suffered, and the impact on their children. She also explained that she had needed to have time off work because of depression and panic attacks, and that both she and
the children needed counselling as a consequence of Mr Rakei’s death. The judge
rightly described the victim impact statement as ‘heartbreaking’.[14]
[14]
27 It may be accepted that, at least by the time she read her victim impact statement to the Court, Ms Boyte was aware that the applicant had provided assistance to the principal
offender. However, as the respondent accepted, there is nothing explicit in Ms Boyte’s
victim impact statement about any detrimental, prejudicial or deleterious effect on her
(or her family) of the applicant’s offending, as opposed to that of the principal offender.
The applicant’s offending, as we have already observed, was committed after the
circumstances giving rise to Mr Rakei’s death. At its highest there is a reference in the victim impact statement to when Ms Boyte ‘found out more about Timmy’s death’, resulting in her being ‘full of rage’ and suffering other consequences.
28 The respondent invited this Court to draw an inference that Ms Boyte, knowing of the
applicant’s assistance to the principal offender, would have experienced additional and
distinct harm or trauma as a consequence of that offending. However, in our view there is no proper evidentiary foundation for drawing such an inference in this case. This is not a matter a sentencing court is simply entitled to assume. We do not accept the
respondent’s submission that it is ‘blindingly obvious’ that there would be an impact,
let alone any particular impact, on the family of a person who is killed in the course of a crime, by reason that another person, later, gave assistance to the principal offender. That is, we do not consider that, in the present case, it is open to us to infer, as the
sentencing judge did, that the applicant’s offending — that is, helping RJ try to get away with his offending — had ‘prolonged the agony’,[15] or ‘compounded the grief’,[16]
[15]
[16]
suffered by Ms Boyte, or caused her any other form of injury, loss or damage. If the
effects of the applicant’s offending upon which the prosecutor sought to rely upon had
in fact occurred, one would have expected them to have been referred to in Ms Boyte’s
victim impact statement.
29 We also observe that, to the extent that Ms Boyte’s victim impact statement contained particulars of the impact of RJ’s culpable driving offence on her, those aspects of the
victim impact statement are inadmissible in the sentencing of the applicant. That did not render the victim impact statement itself inadmissible, because s 8L(5) permits a
sentencing court to receive the whole of a victim impact statement ‘despite … the
statement containing inadmissible material’. However, s 8L(6) provides that, if a court
receives a victim impact statement that contains inadmissible material, ‘the court, in sentencing the offender … is not to rely on the material that the court considers to be
inadmissible’. We have thus not relied upon the victim impact statement because it
contained, in its entirety, material which was inadmissible on the applicant’s plea.
30 Turning now to the sentence to be imposed upon the applicant, in light of the matters identified in the Reasons (other than the contents of the victim impact statement), and in light of the submissions made on the hearing of the appeal, we consider that a sentence of 16 months is appropriate for the offence of assisting an offender contrary to s 325 of the Crimes Act 1958.
31 The offending on charge 1 was a serious example of a serious offence attracting a maximum term of imprisonment of five years. As the applicant conceded, it was made more serious because the principal offence involved a fatality. As Weinberg JA observed in Landmark:
The applicant was involved in an attempt to cover up a most serious offence,
one that resulted in a person’s death. His conduct was designed to enable the
perpetrator of that offence to avoid detection, and escape any punishment. The particular assistance he provided in that regard, contrary to the suggestion put forward on his behalf, was far from immaterial.
Conduct of this kind undermines and frustrates the proper administration of
justice. … It must be discouraged and denounced in the strongest of terms.[17]
[17]
The applicant’s moral culpability was ‘fairly high’.[18] Furthermore, he had a not
[18]
insignificant criminal history, although it did not involve offending of the present
kind.[19] These matters, in particular, warrant a significant period of imprisonment.[19]
33 However, there are various matters that mitigate, to a significant extent, the applicant’s offending. He had an ‘off-the-record’ discussion with police, where he told them what
he had done and helped them to find the black SUV.[20] His prospects of rehabilitation were found to be ‘guardedly fair’.[21] A large proportion of his sentence fell to be served
[20]
[21]
during the time when the pandemic affected conditions in prisons,[22] and his time in prison has been, and will continued to be, rendered more burdensome by reason of his post-traumatic stress disorder symptoms following his being the victim of a stabbing.[23]
[22]
[23]
Finally, it is important to give appropriate weight to the applicant’s plea of guilty. That
plea meant that witnesses were not required to give evidence and assisted the courts during a period of trial backlogs due to the COVID-19 pandemic, thus attracting the
principle set out in Worboyes v The Queen.[24] The plea thus requires an ‘actual and
palpable amelioration of sentence’.[25][24]
[25]
34 In relation to current sentencing practice for this offence, some caution is required given the range of different principal offences that may provide the basis for the charge and the range of different kinds of assistance that may be provided. Nonetheless, we have found the comparable cases to be of some assistance in this matter in determining an appropriate sentence.
35 On the plea, the court was referred to the following cases, each involving a plea of guilty for an offence of assisting a principal offender:
(a) Landmark, in which a sentence of 2 years and 3 months’ imprisonment was imposed for assisting a principal offender who had shot and fatally wounded a victim; the offence was defensive homicide. The offender was present at the shooting and had assisted in covering up the crime. He had previous convictions
and the plea was a late one. A co-offender was sentenced to 18 months’
imprisonment, receiving a discount for his co-operation with police and
willingness to give evidence against his co-offenders.
(b) Director of Public Prosecutions v Matthews & Burford,[26] in which a sentence of [26]
12 months’ imprisonment was imposed for the offence of accessory after the fact
to manslaughter. The offender assisted the principal offender to remove the
deceased’s body and dispose of it in a mine shaft. He was promised, and given,
a car in exchange for his assistance. He had some prior convictions. He pleaded guilty early, assisted police and gave an undertaking to give evidence against the principal offender. A co-offender, who lacked any financial motive, received a community correction order of 16 months.
(c) Director of Public Prosecutions v Abbott,[27] in which a sentence of 16 months’ [27]
imprisonment was imposed for assisting a principal offender who had driven a motorbike on a footpath and seriously injured a pedestrian, leaving him with a brain injury and cognitive impairment. The offender disposed of the motorbike, and it was not located by police for some months. The offender pleaded guilty early and had a range of prior convictions.
36 Before this Court, the applicant also referred to the following additional cases concerning the offence of providing assistance to an offender:
(a) The Queen v Dowdy,[28] where a bond was imposed on an offender who had assisted in erasing video evidence implicating the principal offender in the offence of manslaughter; (b) R v Zeidan,[29] where sentences of 6 months and 9 months, wholly suspended, were imposed for assisting Antonios Mokbel to flee Australia during the course of his trial for the offence of importation of cocaine; (c) R v Prestage,[30] where a sentence of 2 years and 3 months’ imprisonment was [28]
[29]
[30]
imposed on an offender who, believing the principal offender had committed manslaughter, assisted in removing the body from scene and dumping it in mineshaft;
(d)
Director of Public Prosecutions v Bahnert,[31] where a sentence of 2 years, wholly suspended, was imposed for the assisting a principal offender who had intentionally caused serious injury; and
(e)
R v Armstrong,[32] where a sentence of 8 months, wholly suspended, was imposed for assisting a principal offender who had intentionally caused injury.
[31]
[32]
37 In addition, the respondent identified two additional cases, not referred to on the plea, as follows:
(a) Director of Public Prosecutions v Miller,[33] in which a sentence of 18 months’ [33]
imprisonment was imposed for assisting the offence of intentionally cause injury (although the victim later died). The offender, who had a criminal history, took possession of the knife used by the principal offender to stab the victim and disposed of it by placing it on a window ledge around the corner from the offending. The offender had pleaded not guilty to manslaughter (of which he was acquitted) but offered to plead guilty to assisting the principal offender (of which he was ultimately convicted following a trial). That offer was a relevant mitigating factor.
(b) Director of Public Prosecutions v Hindes,[34] in which a 30 month community correction order was imposed for assisting a principal offender who had engaged in culpable driving. The offender, who had no criminal history, had pleaded guilty following a sentence indication. He had been a passenger in the offending car and had assisted the principal offender to escape. [34]
38 As noted above, the prosecution accepted that it had been unable to find a case in which
a sentence of 3 years’ imprisonment had been imposed for the offence of assist offender.
39 In light of all these matters, and particularly in light of the plea of guilty, we consider that a sentence of 16 months is appropriate on charge 1.
40 In relation to the two summary offences, we consider the sentences imposed by the sentencing judge for that offending, and the orders for cumulation, to be appropriate.
The total effective sentence will thus be 20 months’ imprisonment. We consider this to
be an appropriate total effective sentence in light of the principle of totality. We will order that the applicant must serve a period of 12 months before being eligible for parole. We record that, but for his plea of guilty, we would have sentenced the applicant
to a total effective sentence of 3 years’ imprisonment with a non-parole period of
2 years.
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We note that RJ has not yet pleaded to the charge of culpable driving causing death and has indicated
an intention to contest that charge: DPP v Powell [2023] VCC 1126, [37] (‘Reasons’).
THE COURT
Contrary to Crimes Act 1958, s 325.
Contrary to Road Safety Act 1986, s 30(1).
Contrary to Road Safety Act 1986, s 30(1).
For convenience, we will refer to the proposed grounds of appeal as grounds of appeal.
THE COURT
Contrary to Crimes Act 1958, s 325.
Contrary to Road Safety Act 1986, s 30(1).
Contrary to Road Safety Act 1986, s 30(1).
THE COURT
Emphasis added.
[2015] VSCA 178 (‘Landmark’).
THE COURT
[2015] VSCA 178, [23]–[24].
Not counsel who appeared for the applicant in this Court.
THE COURT
R v Miller (1995) 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); See also Sentencing
Act 1991, s 3(1) (definition of ‘victim’) as amended by Victims of Crime Assistance (Amendment) Act
2000, s 22(1).
Reasons, [28].
THE COURT
Reasons, [31].
This was the language of the respondent’s submission on the plea in relation to the victim impact
statement.
THE COURT
[2015] VSCA 178, [62]–[63].
Reasons, [37].
Reasons, [32], [35].
Reasons, [35].
Reasons, [51].
Reasons, [51].
Reasons, [46].
[2021] VSCA 169.
Worboyes v The Queen [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
THE COURT
[2016] VSC 783.
[2020] VCC 99.
[2005] VSC 68.
[2009] VSC 137.
[2023] VSC 400.
[2010] VSC 265.
[2014] VSC 256.
THE COURT
[2022] VSC 775.
[2022] VCC 2362.
THE COURT
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