Azzopardi v The Queen

[2011] VSCA 372

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0913
ALFER JUDE AZZOPARDI	Applicant
v
THE QUEEN	Respondent
S APCR 2009 0915
MICHAEL BALTATZIS	Applicant
v
THE QUEEN	Respondent
S APCR 2009 0919
SEAN GABRIEL	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH JA, COGHLAN and MACAULAY AJJA
WHERE HELD	MELBOURNE
DATES OF HEARING	2 and 3 June 2011
DATE OF JUDGMENT	18 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 372
JUDGMENT APPEALED FROM	R v Azzopardi, R v Baltatzis, R v Gabriel (Unreported, County Court of Victoria, Judge Gullaci, 18 November 2009)

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CRIMINAL LAW – Sentencing – Youthful offenders sentenced to very long terms of imprisonment – Large number of serious crimes over short period – Armed robbery –Intentionally causing serious injury – Parity – Double punishment – Principles applicable to youthful offenders discussed – Reduction in mitigating effects of youth as seriousness of offences increases – Totality – Explication of principles underlying totality – Whether crushing sentence – Verdins principles eschewed on plea – No obligation on sentencing judge to consider – Revivication of argument on appeal refused – R v Romero [2011] VSCA 45 applied – Appeals allowed.

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Appearances:	Counsel	Solicitors
For the Applicant Azzopardi	Mr Theo Kassimatis	Balmer & Associates
For the Applicant Baltatzis	Mr C B Boyce	Victoria Legal Aid
For the Applicant Gabriel	Mr D A Dann	Anne Valos & Associates
For the Crown	Mr J D McArdle with Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. The applicants who were all young offenders, engaged in persistent and grave criminal conduct.  This appeal against their sentences principally raises the questions whether the mitigating influence of their youth had been expunged because of the extent and seriousness of their criminality and whether upon a proper understanding of the principle of totality, the imposition of lesser sentences was required.

1. The applicants Alfer Azzopardi and Michael Baltatzis pleaded guilty in the County Court to 46 counts relating to offences which they committed in a seven week period between 7 August 2008 and 28 September 2008, being 23 counts of armed robbery (counts 1, 2, 5, 7, 9, 10, 17, 18, 22, 23, 25, 27, 29-32, 35, 36, 38, 40, 42, 44 and 46), nine counts of attempted armed robbery (counts 3, 4, 13, 15, 16, 20, 24, 26 and 28), two counts of attempted robbery (counts 11 and 12), four counts of intentionally causing serious injury (counts 33, 37, 39 and 41), two counts of intentionally causing injury (counts 14 and 47) and six counts of common law assault (counts 6, 8, 19, 21, 43 and 45).

1. The applicant Sean Gabriel pleaded guilty to 10 counts relating to offences he committed on the evening of 27 September 2008, in the company of the other applicants, being five counts of armed robbery (counts 32, 36, 38, 40 and 42), three counts of intentionally causing serious injury (counts 37, 39 and 41), one count of recklessly causing serious injury (count 34) and one count of common law assault (count 43).

1. The composition of each applicant’s sentence was as follows:

Count	Offence	Maximum penalty	Azzopardi Sentence & (Cumulation)	Baltatzis Sentence & (Cumulation)	Gabriel Sentence & (Cumulation)
1	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
2	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
3	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
4	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
5	Armed robbery	25 yrs	4 yrs (3 mths)	4 yrs (3 mths)	N/A
6	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
7	Armed robbery	25 yrs	5 yrs (3 mths)	5 yrs (3 mths)	N/A
8	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
9	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
10	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
11	Attempted robbery	10 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
12	Attempted robbery	10 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
13	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
14	Intentionally causing injury	10 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
15	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
16	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
17	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
18	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
19	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
20	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
21	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
22	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
23	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
24	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
25	Armed robbery	25 yrs	5 yrs (3 mths)	5 yrs (3 mths)	N/A
26	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
27	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
28	Attempted armed robbery	20 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
29	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
30	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
31	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
32	Armed robbery	25 yrs	5 yrs (3 mths)	5 yrs (3 mths)	5 yrs (6 mths)
33	Intentionally causing serious injury	20 yrs	5 yrs (9 mths)	5 yrs (5 mths)	N/A
34	Recklessly causing serious injury	15 yrs	N/A	N/A	3 yrs (6 mths)
35	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	N/A
36	Armed robbery	25 yrs	6 yrs (3 mths)	6 yrs (3 mths)	5 yrs (6 mths)

37	Intentionally causing serious injury	20 yrs	8 yrs (BASE)	7 years (BASE)	6 years (BASE)
38	Armed robbery	25 yrs	5 yrs (3 mths)	5 yrs (3 mths)	5 yrs (6 mths)
39	Intentionally causing serious injury	20 yrs	5 yrs (9 mths)	5 yrs (5 mths)	4 yrs (6 mths)
40	Armed robbery	25 yrs	5 yrs (3 mths)	5 yrs (3 mths)	5 yrs (6 mths)
41	Intentionally causing serious injury	20 yrs	5 yrs (9 mths)	5 yrs (5 mths)	4 yrs (6 mths)
42	Armed robbery	25 yrs	3 yrs (3 mths)	3 yrs (3 mths)	3 yrs (3 mths)
43	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	9 ms (3 mths)
44	Armed robbery	25 yrs	4 yrs (3 mths)	4 yrs (3 mths)	N/A
45	Common law assault	5 yrs	1 yr (1 mth)	1 yr (1 mth)	N/A
46	Armed robbery	25 yrs	4 yrs (3 mths)	4 yrs (3 mths)	N/A
47	Intentionally causing injury	10 yrs	2 yrs (2 mths)	2 yrs (2 mths)	N/A
Total Effective Sentence Non parole period	18 yrs 6 mths 13 yrs 6 mths	16 yrs 6 mths 10 yrs 6 mths	9 yrs 9 mths 6 yrs

1. Each of the applicants seek leave to appeal against those sentences.

Factual Background

1. The facts of the offending are not in dispute.  Although there were many offences, most of the armed robberies were committed in very similar circumstances, and can be briefly summarised.  The offences arise from 21 separate incidents on 11 different evenings (all of the incidents occurred between 6:30 pm and 2:20 am) during the period 7 August 2008 to 28 September 2008.  The offences involved 34 victims, the majority of whom were deliberately targeted by the applicants because they were vulnerable and alone on the street or in parklands in the Melbourne metropolitan area.  Azzopardi and Baltatzis were involved in each incident.  They were sometimes joined by one, or occasionally two other co-offenders.  Gabriel joined with Azzopardi and Baltatzis in the offending constituting five separate incidents, all of which occurred on 27 September 2008.

1. On most evenings when these incidents occurred, Azzopardi and Baltatzis would drive around together in search of a victim.  Once they had selected somebody, they would emerge from their vehicle.  On all except one occasion the offenders were armed with weapons when they confronted their victims, including a knife used by Baltatzis to threaten victims in at least 15 of the incidents, and a baseball bat or a metal pole frequently carried by Azzopardi.  Baltatzis would most often threaten the victim with a knife and demand money or other property from the victim.  On certain occasions, the offenders inflicted gratuitous violence on their victims after the victims had fallen to the ground and/or had given in to the applicants’ demands.  Eight incidents involved Azzopardi hitting the victim in the head with the metal pole or baseball bat.

1. It is unnecessary to set out further in detail the conduct which constituted all 21 incidents, but I shall refer in more detail to five of the seven incidents which occurred on the evening of 27 September 2008.  These incidents included the most violent offending, and are incidents in which all three applicants were involved.

1. Sometime after 7:30 pm on Saturday 27 September 2008, Azzopardi, Baltatzis and a co-offender Shannon Cooke, after having already committed armed robberies against three other victims that night, called Gabriel and drove to Hoppers Crossing to collect him.  At about 10:05 pm the offenders, having driven along the beachfront in Williamstown looking for targets, spotted John Shadbolt, who was 19, walking alone.  Azzopardi, Baltatzis and Cooke, armed with a metal pole, a knife and a metal baseball bat respectively, emerged from the car with Gabriel.  Gabriel reached Mr Shadbolt first and grabbed him by the neck.  One of the offenders told Mr Shadbolt to give them his phone, and as he was attempting to comply with this request, Azzopardi struck him in the upper back of his left thigh with the baseball bat.  After Azzopardi took the phone from Mr Shadbolt he struck him again, causing Mr Shadbolt to fall to the ground.  Some of the offenders then hit or kicked him while he was lying on the ground.  Azzopardi demanded he give him his wallet, and after Mr Shadbolt had handed over his bag and was attempting to get up, Azzopardi struck him to the head with the baseball bat.  The offenders then left him and returned to their vehicle.  Mr Shadbolt was taken to hospital and was found to have sustained a bruise to the front of his right thigh and a laceration of five centimetres to the left side of the front of his head, which required sutures.  This incident was the subject of counts 32 and 33.

1. At approximately 10:30 pm Azzopardi and Baltatzis had committed another armed robbery.  Then at 10:45 pm all three applicants as well as Cooke approached Dr Mukesh Haikerwal, aged 48, who was walking alone through a dark area in a parkland in Williamstown.  Baltatzis was armed with a knife and Cooke with a baseball bat.  As the group approached Dr Haikerwal, Baltatzis pointed the knife at him and demanded his phone and wallet.  Gabriel then tried to grab the victim and they fell to the ground.  While Gabriel was holding the victim, Cooke struck him six or seven times with the bat.  Azzopardi said ‘pass the baseball bat’ and ‘you’re not doing it right’, and Azzopardi then struck Dr Haikerwal four or five times on the head with the bat.  The victim managed during the attack to pass his wallet to the offenders.  Azzopardi then took a step back from the victim, who was still on the ground, took a full back swing and struck him to the head with the bat, which caused Dr Haikerwal’s skull to audibly crack.  The offenders then ran towards their vehicle.  This was the conduct the subject of counts 36 and 37, the latter of which was treated as the base count for all the applicants.  As a result of this attack, Dr Haikerwal suffered a large open wound across his scalp, a fracture to the right side of his skull and a severe brain injury, bruising to the upper left chest wall, and a bruised and swollen right knee.  A CT scan of his brain revealed two blood clots in the brain.  He underwent emergency surgery after which he was placed in a medically induced coma for approximately 24 hours.

1. As the applicants were running back to their vehicle after attacking Dr Haikerwal, they saw Scott McClelland walking towards their car.  Azzopardi yelled out ‘let’s go bash him, get rid of him’.  Gabriel punched Mr McClelland twice in the face.  Azzopardi then struck him in the head with a baseball bat, and told him to hand over his wallet and phone, which he did.  Mr McCelland said that he saw that Baltatzis was holding a knife.  The offenders then left and got into their vehicle.  Mr McCelland sustained a 8 to 10 centimetre laceration to the forehead requiring sutures, bruising of the left occipital region at the back of his skull, bruising to the right eye and the right elbow.  This attack was the subject of counts 38 and 39.

1. The three applicants then committed two more armed robberies together that night, the first against Michael Kerjman.  Gabriel struck him on the legs with a baseball bat causing Mr Kerjman to fall to the ground.  He was then struck with the bat in the head while attempting to run away.  Whilst he was lying on the ground his clothes were searched, and his mobile phone was taken.  In the last armed robbery involving all three Aalap Rathod was threatened by Cooke with a baseball bat.  Gabriel then grabbed Mr Rathod around the throat and pushed him, demanding to know what was in his bag and warning him that if he said anything he would be bashed.  After searching his bag and his person, the offenders took his wallet and two mobile phones.  These two incidents were the subjects of counts 40–43.

1. All the applicants were 19 at the time the offences were committed.  The Crown submitted that the applicable range for Azzopardi was a total effective sentence of 20 to 22 years and a minimum sentence between 15 to 17 years, and the applicable range for Baltatzis was a total effective sentence of 16 to 18 years and 11 to 13 years for the non-parole period.  The Crown conceded that Gabriel’s culpability was less than the other two as his offending was limited to one evening, and his role in the offending on that night was less than the role taken by Azzopardi or Baltatzis.  It was submitted that in his case the appropriate range was a total effective sentence of eight to 10 years and a minimum period of six to eight years.

Application of Verdins in the cases of Azzopardi and Baltatzis

1. Azzopardi and Baltatzis submitted that the sentencing judge failed to apply the principles in R v Verdins.[1]

   [1](2007) 16 VR 269 (‘Verdins’).

1. The sentencing judge summarised the contents of a report by the psychologist Mr Newton tendered by Azzopardi on the plea as follows:[2]

Mr Newton concluded in his report inter alia as follows.  1. As a result of the emotional turmoil you developed significant depressive symptoms.  2. You experienced marked functional difficulties during 2007.  3. When he assessed you in 2008, he diagnosed a dysthymic disorder, which is a relatively mild form of depressive mood disturbance.  4. He assessed you as requiring treatment.  5. That you did not participate in treatment before you began re-offending.  6. That your gambling escalated from 2007, although there was no mention of your gambling problems when he assessed you in 2008.  7. That you reported your motivation for committing these offences was to obtain funds for gambling.  8. That you demonstrate a heightened anxiety whilst in prison, and that you have become isolated and are currently in protection.  9. That you have ongoing symptoms of depression.  10. That even with optimum intervention you have significant rehabilitative work ahead of you.  11. That he has concerns that you might develop a personality disorder without appropriate treatment which, in turn, is likely to lead to further legal problems, as I understand it, further offending.

[2]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [36]–[38].

1. His Honour noted in his sentencing remarks that Azzopardi’s counsel did not contend that the psychological disorder from which he was suffering ‘caused or contributed’ to his offending ‘so as to attract the principle as set out in R v Verdins’, but had submitted that Azzopardi’s psychological state was a matter personal to him which should be afforded some weight.[3]  His Honour rejected a submission that Azzopardi’s gambling addiction was the motivation for his offending, and that his gambling addiction should attract the principles in Verdins.  This latter argument was not maintained on appeal.

   [3]Ibid [45] (citation omitted).

1. Azzopardi submitted that the learned sentencing judge had wrongly characterised the submission on the plea as eschewing any reliance on any aspect of the Verdins principles, when his counsel had in fact submitted that the disorder would make imprisonment more burdensome for him, so as to enliven Verdins principles 5 and 6.  Alternatively, it was submitted that even if counsel on the plea had conceded that no Verdins principle was enlivened, the sentencing judge was aware of the content of Mr Newton’s report and having regard to the submission that was made by his counsel, should have assessed for himself whether Verdins had any application.  It was submitted that had his Honour done so, he would inevitably have concluded that prison would be more burdensome for Azzopardi.  Accordingly, any concession by counsel that Verdins did not apply should not be decisive of the issue.

1. I accept the Crown submission that counsel for Azzopardi on the plea did ultimately eschew reliance on the aspects of Verdins that counsel on the appeal seek to revive.  I reject the submission that because counsel initially raised the issue before expressly abandoning it, the circumstances are different to those where counsel disclaims reliance on the principles from the outset.[4]  

   [4]See Romero v R [2011] VSCA 45.

1. There is, generally speaking, no duty on a sentencing judge, in the absence of explicit submissions by counsel, to embark upon an inquiry as to whether any principles in Verdins might be enlivened by the evidence tendered on the plea.[5]  Where a prisoner is represented by counsel, a sentencing judge will not ordinarily be required to consider any possible effects of psychological or psychiatric disability which may go in mitigation of penalty, other than those expressly relied on by counsel.[6]

   [5]R v Zander [2009] VSCA 10, [36] (Nettle JA); Wassef v R [2011] VSCA 30, [18] (Redlich JA).

   [6]R v Zander [2009] VSCA 10, [36] (Nettle JA).

1. I take leave to refer to my observations in R v Romero[7] with which Buchanan and Mandie JJA agreed as they are apposite to the present circumstances:

In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment.  It is not a rehearing of the plea in mitigation.  It is not the occasion for the revision and reformulation of the case presented below.  Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea.  It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made.  The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.

[7][2011] VSCA 45, [11].

1. The Crown submitted, and I accept, that Mr Newton’s report was not so compelling.  Mr Newton did not state that Azzopardi’s mild disorder was linked to his offending, or that it would make prison more onerous for him.  The applicant had told Mr Newton that the motive for his offending was his gambling addiction.  Accordingly, the sentencing judge was correct to conclude that the principles in Verdins did not apply.  His Honour did take into account that imprisonment would be more burdensome for Azzopardi than other offenders, by virtue of the fact that he would spend time in protective custody apparently because of his heightened anxiety about his fellow prisoners.[8]  As the Crown pointed out, there was no evidence that he would spend much of his term in protective custody. 

   [8]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [64].

1. This ground is without merit.

1. Despite no such submission being made by his counsel on the plea, Baltatzis also submitted that the sentencing judge should have applied propositions 5 and 6 from Verdins because prison would be more burdensome.   

1. The learned sentencing judge referred to the report of the psychologist Mr Ball that was tendered on the plea in which it was said that Baltatzis had a borderline low IQ of 79 and a nascent dependency disorder.  It is apparent that although counsel on the plea submitted that the lengthy period of imprisonment suggested by the Crown could only have a ‘devastating’ and ‘permanently negative effect on him’ given his intellectual and psychological deficits, the submission was made in the context of a contention as to the appropriate head sentence.  It was not, as counsel on appeal suggested, a Verdins submission ‘without the label’.  In fact the learned sentencing judge several times asked counsel for Baltatzis if he intended to rely on the Verdins principles.  His Honour did all that could reasonably be expected to clarify whether counsel wished to rely on Verdins.  Counsel stated that he did not intend to do so.  Although noting that his counsel did not submit that the principles in Verdins applied, his Honour did take into account in Baltatzis’ favour, his limited intellect, dependent personality traits and vulnerability. 

1. For those reasons, Baltatzis cannot now be heard to complain that the sentencing judge did not adequately apply the principles in Verdins.  Accordingly this proposed ground of Baltatzis’ appeal must also fail.

Individual sentences on counts 5, 7, 38, 40, 44 and 46 include double punishment

1. The Crown conceded on the second day of this appeal that the individual sentences imposed by the learned sentencing judge on some of the counts of armed robbery punished the applicants twice for the same act of violence.  An examination of the individual sentences imposed by the learned sentencing judge in the table at [4] shows that his Honour generally imposed a sentence of three years’ imprisonment for the armed robberies, but increased the sentence to four or five years when the armed robbery was accompanied by additional acts of violence, thereby treating such violence as an aggravating feature of those armed robberies.  That his Honour was entitled to do so is of course incontrovertible;  but on all but one of the occasions that armed robbery sentence was increased beyond three years, a separate count of either intentionally causing serious injury, intentionally causing injury or common law assault had also been charged which was the subject of a separate sentence. 

1. It is impermissible for an offender to be punished twice for the same act.[9]  Hence the Crown conceded that on counts 5, 7, 38, 40, 44 and 46 where his Honour imposed an aggravated sentence for the armed robbery and where a separate count was laid for acts of violence committed before or during the armed robbery, the sentence on the armed robbery would have to be reduced to avoid double punishment.  The Crown therefore conceded that the applicants should be re-sentenced on those counts because the same act founded the separate counts of intentionally causing serious injury, intentionally causing injury or common law assault, and the increased sentences for armed robbery.[10]  The Crown acknowledged that the double punishment infecting the individual sentences on those counts was not cured by the orders for cumulation.[11]  The Crown accordingly conceded that the sentencing discretion would at least have to be re-opened in relation to those armed robbery counts on which there had been double punishment.  Having regard to the sheer number of offences for which Azzopardi and Baltatzis stood to be sentenced and the principle of totality, the error on those counts would require the re-opening of the discretion in relation to all of the counts

   [9]Pearce v The Queen (1998) 194 CLR 610, 624 (McHugh, Hayne, Callinan JJ); R v Orgill [2007] VSCA 236, [17] (Chernov, Vincent, Redlich JJA).

   [10]See, for example, the description of the incident the subject of counts 38 and 39 in paragraph [11] above.

   [11]Pearce v The Queen (1998) 194 CLR 610, 624; R v Orgill [2007] VSCA 236, [18].

1. Baltatzis also complained that he had been doubly punished in a different sense as he had been punished more than once for what was essentially one act which occurred against multiple victims.[12]  However, at the hearing this argument was only faintly pressed as it is clear that where a single act or course of conduct causes separate harm to multiple victims, separate punishment for the harm done to each victim is warranted.[13]

   [12]See for example, counts 2-4, which were offences committed against three victims at the same time, and for which sentences of 3 years, 2 years and 2 years respectively were imposed. 

   [13]R v Bekhazi (2001) 3 VR 321, 326 and 330 (Winneke P), 332 and 333 (Vincent JA); DPP v Solomon (2002) 36 MVR 425, [19] 429 and 430 (Winneke P); R v Teh (2003) 40 MVR 195.

Whether insufficient weight given to youth of all applicants

1. All applicants submitted before this Court that the length of the sentences of imprisonment imposed by the sentencing judge demonstrated that his Honour gave insufficient weight to the youth of the offenders, and failed to mitigate their sentences appropriately. 

1. Noting that all three applicants were 19 at the time of offending and 20 at the date of sentencing, his Honour stated in his sentencing remarks that the principles as set out in R v Mills[14] were applicable to all of the applicants.  His Honour in various parts of his reasons referred to the community’s interest in enhancing the prospects of rehabilitation of each offender, and the risk of the young offenders becoming institutionalised in gaol.

   [14](1998) 4 VR 235.

1. In the case of Azzopardi, his Honour made a number of pertinent observations, including:[15] 

[t]he court should be slow to conclude that someone like you, with your background and difficulties you face, and being 20 years of age, is beyond redemption

and

[t]his is a case where your youth and the court’s interest in your rehabilitation does not override other matters to be considered by the court such as (a) denunciation (b) just punishment (c) specific and general deterrence and (d) protection of the community from you.

[15]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [42] and [57].

1. His Honour adopted the latter remark when sentencing Baltatzis.[16]  As to Gabriel, his Honour said that while he took into account his immaturity and borderline intelligence and the fact that he was easily led or intimidated, general deterrence was still a significant matter for the court to consider.[17]

   [16]Ibid [90].

   [17]Ibid [112] and [113].

1. All applicants submitted that they had been sentenced as though the mitigatory effects of their youth had been entirely extinguished because of the prominence of other sentencing considerations. Such an approach was said to be wrong in principle and because the circumstances still required that their youth should be given some mitigating weight in the sentencing process.  The Crown submitted that where there is a pattern of very serious offending, more punitive sentencing purposes other than rehabilitation come to the fore, such as denunciation, deterrence and retribution and that the mitigating influence of their age was in each case almost extinguished. Thus it contended that as a matter of principle the sentencing judge was entitled to disregard the consideration of the applicants’ youth and that having regard to the extent of their criminality, was right to view its mitigatory effect as exhausted. Some examination of principle is therefore necessary.

Sentencing principles concerning youth

1. There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration.  Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’.[18]  They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.[19]  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.  As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:[20]

In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity.  By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions.  However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.

[18]R v McGaffin [2010] SASCFC 22, [69].

[19]DPP v TY (No 3) (2007) 18 VR 241, 242.

[20][2002] VSCA 131 (‘SJK & GAS’), [61].

1. Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.[21]  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.[22]  The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation,[23] not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.  As stated in R v Lam & Ors,[24]

A primary objective of the criminal justice system is to achieve crime prevention to protect the public.  The rehabilitation of an offender should not be seen as a consideration inimical to that objective.  Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives.  In sentencing there is thus a broad public interest in taking into account the youth of the offender.

[21]R v McGaffin [2010] SASCFC 22, [69].

[22]R v Tran (2002) 4 VR 457, 462.

[23]DPP v TY (No 3) (2007) 18 VR 241, 242; R v Marshall [2003] NSWSC 448, [15].

[24][2005] VSC 495, [8].

1. Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. [25]  While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.[26]  Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated.  The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[27]  As Fox J stated in R v Dixon:[28]  

The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals…

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence.  A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in.  His own personality may well be permanently impaired in a serious degree.  If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young.  His new-found propensities then have to be reckoned with.  A substantial minority of persons who serve medium or long gaol sentences soon offend again.

[25]R v McGaffin [2010] SASCFC 22, [69].

[26]R v Lam & Ors [2005] VSC 495, [8].

[27]R v Hatfield [2004] VSCA 195, [10] (Chernov JA).

[28]R v Dixon (1975) 22 ACTR 13, 19–20.

1. It is helpful to briefly examine how these considerations are affected where the crimes have been particularly serious or persistent. In the case of R v Mills,[29] this Court stated the following general propositions about sentencing youthful offenders as correct:[30]

   [29][1998] 4 VR 235 (‘Mills’).

   [30]Ibid 241 (Batt JA, with whom Phillips CJ and Charles JA agreed).

i.    Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii.   In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)

In addition Batt JA observed:[31]

to say of a violent crime that it requires a sentence effecting the purpose of general and specific deterrence is not to show that the case is other than the ‘usual’ for the purpose of the above propositions.

[31]Ibid 242.

1. In the same year as Mills was decided, this Court recognized that there would be cases in which factors such as youth and rehabilitation would take a ‘back seat’ to other sentencing considerations.[32]  A year after Mills, Batt JA in R v Bell[33] cautioned sentencing judges that the propositions in that case, while applied frequently were not of universal or automatic application and would depend upon the circumstances of the offence as well as the offender.  His Honour further stated that where the offence in question is conduct that is prevalent amongst young men, then ‘besides rehabilitation, general deterrence and specific deterrence must bulk large in informing a sound discretionary determination’.[34] This concept was repeated in R v Ung,[35] where Eames JA said that there may be circumstances in which considerations of youth must give way to factors of general and specific deterrence.  He referred to the reasons of Callaway JA, with whom Buchanan and Vincent JJA agreed in R v Tran[36] that while ‘rehabilitation of youthful offenders is one of the great objectives of the criminal law which will usually be given greater weight than general deterrence… [it] is not the only relevant consideration and in an appropriate case might have to yield to considerations of general deterrence’.[37]  Vincent JA in SJK & GAS[38] recognised that youth may forfeit its primacy where the seriousness of the offence combined with the lack of evidence of any real remorse and no reasonable prospects for rehabilitation.  In Director of Public Prosecutions v McCloy,[39] Ashley JA discussed a variety of circumstances in which the considerations discussed in Mills would no longer be at the forefront when a young offender is to be sentenced.  In R v Huynh, Nettle JA observed that so long as there remains a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation, the youth of the offender is likely to remain of first importance.[40]

   [32]R v Wright [1998] VSCA 84, [6].

   [33][1999] VSCA 223.

   [34]Ibid [14].

   [35][2002] VSCA 101.

   [36][2002] VSCA 52

   [37]Ibid [29] (citations omitted).

   [38][2002] VSCA 131, [66].

   [39][2006] VSCA 99, [60] (citations omitted).

   [40]R v Huynh [2004] VSCA 156 (Nettle JA).

1. The most oft-cited passage dealing with the issue of the tension between the mitigating influence of an offender’s youth and the increased need for general (and specific) deterrence in the case of very serious violent offending is that of Batt JA in Director of Public Prosecutions v Lawrence:[41]

with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence.  As has been said, youth and rehabilitation must be subjugated to other considerations.  They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits.  This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised.  There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance.  This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.

[41](2004) 10 VR 125 (‘Lawrence’), 132 (citations omitted).

1. In R v Wyley,[42] Maxwell P, explained that cases such as ‘DPP v Lawrence are not to be viewed as ‘excluding the principles in Mills’, but simply as instances of how those principles are to be applied’.[43] 

Whether youthful offenders prevalent in committing such crimes

[42][2009] VSCA 17.

[43]Ibid [20].

1. The Crown, relying upon the fact that the applicants’ offending was of a type more commonly committed by young persons initially submitted that this was an additional reason why deterrence must be given greater weight and the ‘youthfulness of an offender cannot be of much significance’.  That was the view express by Batt JA in Lawrence in the above quoted passage.

1. Where the prevalence of a crime amongst a particular group is established on proper material before the court, there may be circumstances in which that fact requires that deterrence receive particular emphasis, with a corresponding reduction in the emphasis to be given to a mitigating circumstance.  The offences of culpable driving and white collar crime illustrate such an approach where the good character of the offender will not be given the same mitigatory effect because of the prevalence of that characteristic amongst those committing such offences.

1. Senior counsel for the Crown with his customary fairness conceded during oral argument that there was no evidence to establish that such crimes are more prevalent amongst young offenders and that it should not be assumed that crimes of violence in public places are predominantly committed by youthful offenders, or that youthful offenders as an age group will represent a high proportion of those who commit acts of violence in such places. 

Conclusion

1. The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.[44]  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[45]

   [44]See also IE v The Queen (2008) 183 A Crim R 150 [16] (Latham J; Spigelman CJ and Hulme J agreeing).

   [45]Cf DPP v Terrick (2009) 24 VR 457, 470–71.

1. Counsel for Baltatzis submitted during oral argument that were this Court unconstrained by authority, the principles in Mills should always be regarded as the primary consideration in sentencing young offenders, regardless of how serious or prolonged their offending.  He rightly acknowledged however that there is now a long line of authority that stands in the way of and precludes the acceptance of that submission.

1. I would reject the contention that the sentencing judge did not approach his task with the correct principles in mind.  His Honour made extensive reference to authority during his sentencing remarks and dealt correctly with the way in which the competing sentencing principles must interact. He rightly concluded that the applicants’ youth must ‘give way’ to just punishment, denunciation and specific and general deterrence, but did not suggest that because of the level of criminality the mitigating effects of their youth were all but exhausted.  The real question is whether in the result, sufficient weight was given to each applicant’s youth.

1. Counsel for Azzopardi conceded that there may come a point at which a youth’s offending is so serious and protracted and his or her antecedents so bleak that he or she is condemned as incapable of reclamation, so that the offender’s youth will no longer result in a sentence any different to that imposed on an adult in the same situation.  But it was submitted that the sentencing judge had not formed such a bleak view of his circumstances as to require such an outcome so that the mitigating effect of his youth should have been reflected in the sentence imposed.  

1. The Crown submitted that in the cases of Azzopardi and Baltatzis the weight to be given to their youth was all but expunged.

1. Gabriel was found by his Honour to have played a lesser role in the offending than the other applicants, and was involved in a course of criminal conduct on one night, after which he did not re-offend.  He was found by the sentencing judge to be immature and of borderline intelligence, and to be easily led or intimidated by others.  He had no prior convictions, and was found to have better prospects for rehabilitation than Azzopardi or Baltatzis.  These findings were not in issue on the appeal.  Accordingly, of the three offenders, Gabriel’s youth should have assumed the greatest weight as a sentencing consideration.

1. Baltatzis’ very serious criminal conduct extended over seven weeks.  The sentencing judge found that he played a ‘significant’ role in the serious criminal offending.  His Honour recognised that Mr Baltatzis acknowledged in his evidence that he was the knife man and on most occasions he went first, making a demand of the victim.

1. The sentencing judge considered the roles of Azzopardi and Baltatzis to be different on the counts of intentionally causing serious injury (counts 33, 37, 39 and 41), as it was Azzopardi who in fact caused the serious injury on those occasions.  This was reflected in the difference in the sentences and orders for cumulation made in respect of those counts.  On those counts, Baltatzis fell to be sentenced as someone who played a lesser role in the offending than Azzopardi.  Significantly Baltatzis, unlike Azzopardi, did not have any prior convictions, and was found by the sentencing judge to have ‘significant family support and some prospects of rehabilitation’.[46]  His Honour was therefore required to give some weight to the fact of Baltatzis’ youth, and to do so to a greater extent than in the case of Azzopardi.  

   [46]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [94].

1. Azzopardi’s involvement in the very serious offending over a seven week period was marked by gratuitous acts of violence.  Unlike Baltatzis and Gabriel, Azzopardi had prior convictions, most recently (in June 2008) for armed robbery and robbery, for which he was given a Community Based Order which was operational at the time of the present offending.  As a result of breaching the CBO, it was cancelled and Azzopardi was re-sentenced to a total effective sentence of 14 months’ imprisonment.  The sentencing judge found that he had ‘limited’, but not non-existent prospects of rehabilitation.[47]  In those circumstances, the weight to be afforded to his youth was less than that for Baltatzis or Gabriel, but some leniency on the ground of his youth was still required.  

Conclusion as to weight to be given to each applicant’s youth

[47]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [64].

1. Notwithstanding the grave nature of the applicants Azzopardi and Baltatzis criminality, I do not accept that the mitigatory effect of their youth had been extinguished or that the sentencing judge thought that was so.  Their youth was still to have a discernible, though in the case of Azzopardi and Baltatzis markedly reduced effect on the sentences imposed.  Even allowing for the extremely serious and persistent criminal offending and the importance of deterrence, denunciation and protection of the community, the individual sentences of the applicants and their total effective sentence had to reflect to some degree, their youth and other personal mitigatory circumstances.  Because of the differences in the extent of each applicant’s criminality, their role in individual offences and their antecedents, the degree to which each applicant’s youth would mitigate their punishment would vary between applicants.

1. It is always necessary to fix an appropriatesentencefor each offence before considering questions of cumulation, concurrence and totality[48] and the mitigating effects of youth must be considered at all stages.  If there were any error with respect to an individual sentence, it would have to be corrected even if there were no error with respect to the total effective sentence.[49]  Were the question one of manifest excess, I would not have been persuaded that the sentences on individual counts was beyond the sound exercise of his Honour’s sentencing discretion.  However as I have already said, it has in my view become necessary to re-open the sentencing discretion and it is now for this Court to consider whether it would impose different sentences on any individual counts.  I would give greater effect to the applicants youth and fix lower sentences on a number of the individual counts including count 37 which was the base count.

   [48]Postiglione v The Queen (1997) 189 CLR 295, 340 (Kirby J); Pearcev The Queen (1998) 194 CLR 610;  Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 683 (Ormiston JA) (‘Grabovac’); R v Hammoud (2000) 118 A Crim R 66, 67 (Simpson J); R v Musso [2002] NSWCCA 487.

   [49]Ludemanv R; Thomas v R; French v R[2010] VSCA 333, [66].

1. In determining the total effective sentence and non parole periods, I respectfully consider that his Honour failed to give sufficient weight to the youth of each applicant.  Their youth though subjugated to other punitive sentencing considerations, remained a relevant mitigating circumstance requiring some degree of leniency that would not be extended to a mature offender.  The orders for cumulation and their aggregation failed to adequately reflect the applicants’ youth and their prospects for rehabilitation.

Did the total effective sentences infringe the principle of totality?

1. Drawing upon their submissions that the learned sentencing judge failed to give adequate weight to the offenders’ youth, all applicants submitted that the sentences imposed offended the totality principle, in that they were disproportionate to the overall criminality of their conduct over the periods charged. As the task of applying the principle of totality formed part of the sentencing judge’s instinctive synthesis, it was submitted that we should find that it was beyond the exercise of a sound discretion to fix such sentences.  The Crown contended that the sentences were proportionate to their degree of criminality. Underlying the parties submissions was a difference in understanding as to what is meant by the totality requirement that the sentence be proportionate to the applicants’ total criminality.

When is a sentence proportionate to or a just and appropriate measure of the offender’s overall criminality?

1. In the case of sentencing for multiple offences, the principle of totality was explained by the High Court in Postiglione v The Queen as requiring a sentence that is a ‘just and appropriate measure of the total criminality involved.’[50]  Kirby J considered that the principle defies ‘precision either of description or implementation’.[51]  The sentence should be proportionate to the total criminality of an offender’s conduct.[52]  Fox and Freiberg suggest totality is the product of proportionality and mercy.[53]  Sometimes it is described as a requirement that the sentence be commensurate with the gravity of the whole of the offending and the offender’s just deserts. As the current argument illustrates, these propositions, frequently cited, do not by themselves provide a ready means of answering the question, is the sentence ‘too much.’[54]

   [50]Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J). See also 321 (Gummow J), 340 (Kirby J).

   [51]Postiglione v The Queen (1997) 189 CLR 295, 340 (Kirby J) .

   [52]See generally Mill v The Queen (1988) 166 CLR 59, 63; R v Knight (1981) 26 SASR 573, 576.

   [53]Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, 1999) 725.

   [54]Reg v Faulkner (1972) 56 Cr App R 594, 596 (Lord Widgery LCJ).

1. Callaway JA said in R v. Aleksov,[55] that just like in the case of manifest excess, whether the total effective sentence offends the principle of totality is often a matter of impression. The factors which combine to inform the instinctive synthesis are those which also determine whether an individual sentence is manifestly excessive, namely the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender.  Hence it is often said that the question of whether a sentence is manifestly excessive does not admit of much elaboration.  While those factors enable the identification of a relevant range of sentences available for that offence, more subtle considerations are at work in determining the aggregate sentence which sufficiently reflects the offender’s total criminality.  Whatever comfort a sentencing judge may derive from the fact that an intermediate appellate court can as a ‘matter of impression’ identify when a sentence infringes the principle of totality, the content of the principle remains unstated.  Some further explication must be undertaken in order to expose the characteristics of a sentence that will satisfy the principle and so resolve the present issue.

   [55][2003] VSCA 44, [54].

1. The concept of proportionality was amplified by Street CJ in R v Holder and Johnston.[56]  His Honour observed that:

not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances.  In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.  The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding-up of the terms appropriate for the offences if each were viewed alone.  In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.

[56][1983] 13 A Crim R 375, 389.

1. Kirby J in Postiglione v The Queen[57] observed that after the sentencing judge has arrived at what is considered to be an appropriate sentence, he or she must consider whether the resulting sentence needs further adjustment if it ‘offends the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not ‘just and appropriate.’  The adjustment involves subtle considerations which Kirby J recognised ‘may result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed.’[58] 

   [57][1997] 189 CLR 295.

   [58]Ibid 341 ( citations omitted).

1. The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct.  Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v The Queen[59] the sentence should be no longer ‘than is necessary to meet the various purposes of criminal punishment.’ Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, ‘that it is enough’.  Wickham J also opined that ‘[m]ore than enough is wrong because the excess is not only purposeless but might be harmful.’[60]  Anderson J expressed similar views in Herbert v R.[61]

   [59](1980) WAR 117.

   [60]Ibid 119.

   [61](2003) 27 WAR 330.

1. One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v The Queen,[62] that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality.  No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[63]  

   [62](1994) 72 A Crim R 301; Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, 1999) 725.

   [63]Veen v The Queen [No 2] (1987-8) 164 CLR 465,472;  Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, 1999) 206.

1. There are two accepted methods of adjusting the total sentence to satisfy the principle. Thus, it was said in Mill:[64]

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

[64]Mill v The Queen (1988) 166 CLR 59, 63.

1. A like approach was adopted by the majority of the High Court in Johnson.[65] In explaining the proper method to be adopted in sentencing for multiple offences, Ormiston JA, in Grabovac, made it clear that the ‘preferable course’ described in Mill, is only a guide.  His Honour said:[66]

In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practical when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.

[65][2004] 78 ALJR 616.

[66]DPP v Grabovac [1998] 1 VR 664, 680.

1. The primary and preferable mechanism stated in Mills and discussed in Grabovac[67] which makes appropriate orders for some of the sentences to be wholly or partially concurrent, will result in an effective sentence that is ‘less than the sum of its parts’.[68]  If this method is not sufficient to avoid a disproportionate sentence, it is permissible for a sentencing judge to lower the individual sentences below what would otherwise be appropriate in order to reduce the total effective sentence.[69]  This adjustment reveals an inherent tension in the sentencing judges discretionary function.  It seems to run counter to the theory that the offender should receive his full measure of punishment for each crime he commits.[70]  It may be misunderstood as the court not treating each offence as seriously as it would have if the offender fell to be sentenced for that offence alone, thereby devaluing the effect of each offence on its victim, relegating the victims to mere statistics;[71] and treating the offender as though he was able to have committed many of the offences almost with total impunity.[72]

   [67]Mill v The Queen (1988) 166 CLR 59, 63; DPP v Grabovac [1998] 1 VR 664, 676 (Ormiston JA); D A Thomas, Principles of Sentencing (2^nd ed, 1979) 57;  Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, 1999) 726;  Hudson v R [2010] VSCA 332, [59].

   [68]Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2^nd ed, 1999) 725.

   [69]Mill v R (1988) 166 CLR 59, 63;. DPP v Grabovac [1998] 1 VR 664, 684 (Ormiston JA).

   [70]Jarvis v The Queen (1998) 20 WAR 201, 215 (Anderson J).

   [71]DPP v Solomon (2002) 36 MVR 425, 429 and 430 (Winneke P).

   [72]DPP v Grabovac [1998] 1 VR 664, 684 (Ormiston JA).

1. All of the individual sentences including the largest, usually the base sentence, must reflect all relevant sentencing objectives where the preferred method of adjustment of sentences is followed.  Punitive sentencing objectives such as denunciation, deterrence, retribution and community protection as well as matters in mitigation will then ordinarily be satisfied by relatively modest orders for cumulation on the base sentence.  An aggregate sentence must be arrived at that is sufficient punishment, but no more than is necessary to satisfy those sentencing objectives. It will then be proportionate to the offender’s overall criminality. If the aggregate sentence is not a just and appropriate measure of the total criminality, the sentencing judge will have assigned the incorrect weight to the various sentencing objectives in fixing the individual sentences or in the method of aggregation of the sentences or both.

1. So for example, if an offender is to be sentenced on two counts of armed robbery, and it is determined that a six year sentence is appropriate for each, the punitive elements of sentencing will be met by a total sentence that is significantly less than the aggregate of the two sentences.  Only so much of the second sentence should be added to the first sentence of 6 years as is necessary to satisfy all of the punitive and mitigatory requirements of the two sentences when aggregated.  So an order of cumulation of say, only two years on the second count, added to the first sentence, produces a total effective sentence of eight years which will be proportionate to the offender’s overall criminality.  

1. Accordingly, the principle requires the sentencing judge to determine an aggregate sentence that ensures that all recognised sentencing objectives will be sufficiently achieved, leaving no purpose in requiring the person to serve the balance of each individual sentence. The sentence is thus structured so that those additional portions of each individual sentence are served concurrently.  

1. Azzopardi described his sentence as ‘crushing’.[73]  A sentence is said to be ‘crushing’ when it is of such a length that it would provoke a feeling of helplessness in the applicant if and when he or she is released,[74] or which would result in ‘the destruction of any reasonable expectation of useful life after release.’[75] The Crown submitted that the notion of a crushing sentence was therefore one usually relied upon by older offenders. The applicant’s argument proceeded upon the false but often stated assumption that a crushing sentence and one that infringed totality were the same.  Whether a sentence offends the principle of totality is directed to the broader question whether the total sentence is proportionate to the offenders overall criminality. It is not dependent upon the subjective views of the offender.  Thus a sentence may offend the totality principle without being ‘crushing’.  It may be too long without destroying any reasonable expectation of a useful life after release.[76] On the other hand a crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle.  The subjective effect of a total effective sentence upon the offender must be put in perspective.  While relevant, it cannot be regarded as of paramount importance. Hence in Vaitos v R, O’Bryan J rejected the notion that a richly deserved sentence should be reduced because the offender may feel crushed by it.[77]  The overriding principle is that the sentence ‘should fairly and justly reflect the total criminality of the offender's conduct’.[78]

   [73]See, for example, Postiglione v The Queen (1997) 189 CLR 295, 304 (Dawson and Gaudron JJ), 308 (McHugh J).

   [74]Jarvis v The Queen (1998) 20 WAR 201, 205 (Ipp J); R v Kerbatieh (2005) 155 A Crim R 367, 395 (Chernov and Nettle JJA).

   [75]R v Yates [1985] VR 41, 43; R v Kerbatieh (2005) 155 A Crim R 367, 395 (Chernov and Nettle JJA).

   [76]Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

   [77]R v Vaitos (1981) 4 A Crim R 238, 301.

   [78](1998) 20 WAR 201, 207 (Ipp J).

Ranges proffered by the Crown inappropriate

1. The ranges offered by the Crown on the plea, purported to be in compliance with the comments made by this Court in R v MacNeil-Brown,[79] being part of the prosecutor’s duty to assist the sentencing judge.  It was made clear in MacNeil-Brown that the purpose of the Crown’s submission as to the range is to promote consistency of sentencing and to reduce the risk of appellable error.[80]  The Crown submission on the range is intended to demarcate the asserted boundaries within which the sentencing discretion may be lawfully exercised.[81]  For that reason, it is imperative that the range submitted by the Crown takes into account the objective gravity of the offending, all relevant sentencing principles including totality, current sentencing practices and all of the matters which go in aggravation and mitigation of the penalty.[82] 

   [79](2008) 20 VR 677.

   [80]R v MacNeil-Brown (2008) 20 VR 677, 679 (‘MacNeil Brown’).

   [81]Ibid 691.

   [82]Ibid 681, 697.

1. Submissions on sentencing range are designed to promote consistency of sentencing and to reduce the risk of appellable error.[83]  As the Chief Justice and I observed in our joint judgment in WCB v R:

It is to be borne in mind that the prosecutor’s submission as to the appropriate range is not simply the provision of the top and bottom of the range.  It must, like any other submission as to how a discretionary judgment is to be exercised, refer to the factors that bear upon the exercise of the discretion.  Hence in supporting the range one would ordinarily expect some reference to the gravity of the offence and aggravating or mitigating factors.[84]

[83]Ibid 697.

[84][2010] VSCA 230, [52].

1. Despite a request by the sentencing judge that he receive assistance on this complex sentencing task, the prosecutor advanced no instructive submission as to why such a range was appropriate and said nothing concerning the need to fix a total sentence that was proportionate to the overall criminality.

1. An ill-judged Crown submission on range will not promote consistency of sentencing and reduce the risk of appellable error.  It may have the opposite effect, and may lead to sentencing error where otherwise there would have been none.[85]  The Crown’s compliance with the obligation stated in MacNeil-Brown[86] will only produce a benefit to the sentencing process where the range that is proffered is appropriate, sufficiently broad and is accompanied by an informative submission which provides a justification for the proposed range.  A selected range that does not accurately reflect current sentencing practice or the principle of totality, is calculated to lead the sentencing judge into error.

   [85]Bourne v The Queen [2011] VSCA 159, [21]–[23].

   [86](2008) 20 VR 677.

1. I consider the submissions made by the Crown before his Honour as to range were ill-considered and paid no regard to the principle of totality. Had the Crown focussed upon whether the total effective sentence was necessary to satisfy all sentencing objectives, it would have been evident that the range proffered by the Crown at first instance, infringed the principle.  It contributed to his Honour’s view of the sentences which should be imposed.

1. If a total effective sentence is unduly punitive by going beyond what is necessary to achieve sentencing objectives, the assumption is that it will be positively harmful to the proper aims of the criminal law.[87]  It does not promote consistency of sentencing.  The sentence is unjust.  It will not make due allowance for the progress of the offender’s rehabilitation during the term of his sentence.  Its unfairness gives rise to the risk that the prisoner will become ‘hopeless, aggressive or otherwise intractable…making it more rather than less likely that he will eventually offend again.’[88] 

   [87]Jarvis v The Queen (1998) 20 WAR 201, 213 (Murray J).

   [88]Magee v R [1980] WAR 117, 119 (Wickham J).

1. It was not reasonably open to the sentencing judge, in my respectful view, to impose the aggregate sentences or non parole periods that he did. I would uphold the contention in the case of all applicants that the principle of totality has been infringed as the total effective sentences imposed on each applicant exceeded that which was necessary to achieve all sentencing purposes.  Their total effective sentences were disproportionate to their overall criminality.

Individual sentences imposed on Baltatzis and Gabriel did not reflect mitigating circumstances personal to each and also offended the parity principle

1. Baltatzis and Gabriel submitted that the individual sentences and the total effective sentences imposed on their clients offended the parity principle, because they were not sentences sufficiently disparate from those imposed on Azzopardi.  It was submitted that no due allowance was made for the differences in their personal circumstances and the circumstances of their offending.[89]  Such differences were required to be reflected not only in the total effective sentences imposed on each offender, but also in each individual sentence.

   [89]Postiglione v R (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

1. In relation to Baltatzis, the sentencing judge had recognized that there were

a number of differences between you and Mr Azzopardi which the court has to take into account in your favour: a) that Azzopardi was on a Community-based Order for similar offending at the time of the commission of all the current offences, b) that you have greater family support and better prospects of rehabilitation, c) the Crown conceded that you are entitled to a sentencing discount for your cooperation with the police and the Crown reliance on your statement.[90]

[90]R v Azzopardi, Baltatzis, Gabriel [2009] VCC 1547, [92].

1. His Honour concluded that ‘these matters require the court to impose a lower sentence on you than Mr Azzopardi.’[91]  Despite these findings, Baltatzis received the same individual sentences as Azzopardi on all the counts except the base count, and a total effective sentence which was two years less than that of Azzopardi.  Baltatzis submitted that the differences between himself and Azzopardi also included his genuine remorse, his lack of prior convictions and his limited intellect, and that those differences were not reflected in the sentences imposed.

   [91]Ibid [93].

1. Baltatzis co-operated with the police by making full disclosure in his interviews and in an initial statement before Azzopardi was interviewed.  He subsequently gave a more detailed written statement, on 25 October 2008.  As Azzopardi disputed some of the aggravating conduct which the Crown alleged, Baltatzis gave evidence on the plea hearing, and while he did not give specific evidence incriminating Azzopardi, he reaffirmed his statement of 25 October as being truthful and accurate.  In the result the Crown was able to establish some of the aggravating features of Azzopardi’s offending on particular occasions, including Azzopardi’s role in the attack on Dr Haikerwal.  

1. The Crown, both on the plea and on appeal, conceded that Baltatzis was entitled to a discount on his sentence for his co-operation and evidence, and the sentencing judge himself said so.[92]  While it was not suggested that the assistance given entitled Baltatzis to a sentencing discount in the order of that usually given to an offender who gives an undertaking to give evidence at the trial of a co-accused, it was submitted that the discount the sentencing judge had allowed was insufficient when considered in combination with the other mitigating factors available to Baltatzis.  It was said that a two year difference in the total effective sentence between Azzopardi’s and Baltatzis and some of the individual sentences infringed the principle of parity.

   [92]Ibid [82]–[84].

1. Although the Crown conceded that ‘ideally’ the differences in the personal circumstances of offenders should be reflected not only in the total effective sentences and orders for cumulation but also in the individual sentences, it did not concede that his Honour erred in the present case.  It submitted that there was adequate differentiation between the sentences imposed on Azzopardi and Baltatzis.  It pointed to the base count (count 37) on which Baltatzis was sentenced to seven years’ imprisonment whereas Azzopardi was sentenced to eight and to the fact that the sentencing judge cumulated four months more on counts 33, 39 and 41 for Azzopardi.  That contention cannot be sustained.  The fact that there is a difference in the base sentence and the orders for cumulation cannot save individual sentences which offend the parity principle or which do not sufficiently allow for mitigating factors of Baltatzis.  Moreover, the differences in the base sentence and the orders for cumulation are to be explained by the difference in the seriousness of the role played by each applicant in the particular offence the subject of those counts.  All of these counts to which the Crown draws attention were for intentional causing serious injury where it was Azzopardi who caused such injury to the victim.  The difference in the offenders’ roles in addition to the differences in their personal circumstances called for different sentences on those counts.  On all of the counts on which the same sentence had been imposed further differentiation was required.

1. This ground is made out.

1. Gabriel submitted that the individual sentences imposed on him, the orders for cumulation, the total effective sentence and the non-parole period, were not sufficiently disparate from the sentences imposed on the other applicants.  His Honour found that his role in the offending was less than both Azzopardi’s and Baltatzis’, that his offending was limited to one night after which he did not re-offend, and he had better prospects of rehabilitation than the other applicants.[93]  His Honour also found that Gabriel was entitled to a sentencing discount for volunteering information to the police which enabled them to link the offences the subjects of counts 40 and 41 to the three applicants.[94] 

   [93]Ibid [100].

   [94]Ibid [101].

1. Despite these findings, Gabriel received individual sentences on some counts which were the same as those imposed on Azzopardi and Baltatzis, and on others the sentences imposed on him were only one year less.  It was further submitted that his role in the offending on some of those counts required differentiation even in the absence of personal mitigating factors, because, for example, in relation to all but one armed robbery he was not in fact armed.  Finally, attention was drawn to the fact that on four counts, the sentencing judge cumulated three months more of the sentences than he did for Azzopardi and Baltatzis.

1. Gabriel maintained that the imposition of individual sentences which were the same as or close to the sentences fixed for the other applicants could not be justified, because as Postiglione and Grabovac make clear, each individual sentence must be appropriate and should properly reflect all mitigatory considerations.  He rightly acknowledged however that given that his client stood to be sentenced for only 10 counts whereas the other applicants were to be sentenced on 46 counts, the principle of totality would at least require lower orders for cumulation for Azzopardi and Baltatzis on some of the counts. 

1. The Crown submitted that Gabriel could not complain that his sentences offended the parity principle because the sentencing judge was required to moderate the individual sentences imposed on Azzopardi and Baltatzis because of the sheer volume of counts on which they were to be sentenced.  This, it was submitted, would have had the effect of reducing the individual sentences for those applicants, and requiring the cumulation of those sentences, on occasion, to be less than the cumulation ordered for Gabriel.  The Crown also submitted that Gabriel’s role in relation to the attack on Dr Haikerwal, of holding the victim down while the others were striking him, was significant and required appropriate punishment.  I accept the latter submission, but otherwise reject the contention that the failure to differentiate between Gabriel and other applicants on most of the armed robbery counts is to be explained on the basis that the judge moderated the individual sentences of Azzopardi and Baltatzis.  The sentencing judge did not utilise that method of adjustment of the sentences of Azzopardi or Baltatzis but employed the preferred method of moderating the orders for cumulation.  This ground is made out. 

Conclusion

1. The sentencing judge was faced with the very difficult task of formulating sentences which reflected the grave, extensive and persistent criminality of Azzopardi and Baltatzis and the harm done by the applicants to so many victims.  As I have said, I consider the learned sentencing judge imposed on all applicants, total sentences which exceeded that which was necessary to achieve all relevant sentencing objectives. Despite the serious and protracted nature of their offending, which called for very substantial sentences in the case of Azzopardi and Baltatzis, the youth of each applicant had not been removed as a mitigatory factor of some importance. That consideration in conjunction with the principle of totality required the imposition of lesser total effective sentences on each of the applicants although they would not impact upon each applicant’s sentences to the same extent because of the roles they played and factors personal to them.  The sentencing discretion must for these reasons be re-opened with respect to all applicants.  The Crown’s concessions as to the double punishment inherent in the sentences imposed on all the applicants for counts 5, 7, 38, 40, 44 and 46, would also have necessitated the re-opening of the sentencing discretion in relation to all applicants.

1. In relation to Baltatzis and Gabriel, the individual sentences imposed on many of the counts and the orders for cumulation were also inappropriate as they did not comply with the principle of parity.  They did not adequately reflect the personal circumstances applicable to those applicants and which distinguished them from each other and from Azzopardi in particular.  They must be re-sentenced with these considerations in mind.

Re-Sentencing

1. I would grant each applicant leave to appeal. I would allow their appeals and re-sentence them as follows:

Count	Offence	Maximum penalty	Azzopardi Sentence & (Cumulation)	Baltatzis Sentence & (Cumulation)	Gabriel Sentence & (Cumulation)
1	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
2	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
3	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
4	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
5	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths (1 mth)	N/A
6	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
7	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths (1 mth)	N/A
8	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
9	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
10	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
11	Attempted robbery	10 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A

12	Attempted robbery	10 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
13	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
14	Intentionally causing injury	10 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
15	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
16	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
17	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
18	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
19	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
20	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
21	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
22	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
23	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
24	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
25	Armed robbery	25 yrs	5 yrs (3 mths)	4 yrs 2 mths (3 mths)	N/A
26	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
27	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
28	Attempted armed robbery	20 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
29	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
30	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
31	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
32	Armed robbery	25 yrs	5 yrs (3 mths)	4 yrs 2 mths  (3 mth)	4 yrs (4 mths)
33	Intentionally causing serious injury	20 yrs	5 yrs (5 mths)	4 yrs 2 mths (3 mths)	N/A
34	Recklessly causing serious injury	15 yrs	N/A	N/A	2 yrs 6 mths (4 mths)
35	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	N/A
36	Armed robbery	25 yrs	6 yrs (3 mths)	5 yrs  (3 mths)	4 yrs (4 mths)

37	Intentionally causing serious injury	20 yrs	7 yrs (BASE)	5 yrs (BASE)	4 yrs 4 mths (BASE)
38	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths  (1 mth)	2 yrs 4 mths (3 mths)
39	Intentionally causing serious injury	20 yrs	5 yrs (5 mths)	4 yrs 2 mths (3 mths)	3 yrs 2 mths (4 mths)
40	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths (1 mth)	2 yrs 4 mths (3 mths)
41	Intentionally causing serious injury	20 yrs	5 yrs (5 mths)	4 yrs 2 mths (3 mths)	3 yrs 2 mths (4 mths)
42	Armed robbery	25 yrs	3 yrs (3 mths)	2 yrs 6 mths (2 mths)	2 yrs 4 mths (3 mths)
43	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	7 mths (3 mths)
44	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths (2 mths)	N/A
45	Common law assault	5 yrs	1 yr (1 mth)	10 mths (1 mth)	N/A
46	Armed robbery	25 yrs	3 yrs (2 mths)	2 yrs 6 mths (2 mths)	N/A
47	Intentionally causing injury	10 yrs	2 yrs (2 mths)	1 yr 8 mths (2 mths)	N/A
Total Effective Sentence Non parole period	16 yrs 10 yrs 6 months	12 yrs 7 yrs	7 yrs 4 yrs

1. I would  order that the  amounts of cumulation specified in brackets after each sentence, be served cumulatively on each other and on the sentence on count 37 making  a total effective sentence  of 16 years in the case of Azzopardi, 12 years in the case of Baltatzis and 7 years in the case of Gabriel.  I  see no reason to depart from the sentencing judge’s purpose of fixing long parole periods in the case of Baltatzis and Azzopardi  to give effect to their prospects for rehabilitation and to reduce the prospect that they will become institutionalised. Therefore I would fix a non parole period of 10 and 6 months years before Azzopardi is eligible for parole, 7 years before Baltatzis is eligible for parole and 4 years before Gabriel is eligible for parole.

COGHLAN AJA:

1. I agree with Redlich JA.

MACAULAY AJA:

1. I also agree for the reasons given by Redlich JA.

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