Baroch v The Queen
[2022] VSCA 90
•17 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0257
| BAROCH BAROCH | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2021 0014
| MAWUT ATER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, MACAULAY and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2022 |
| DATE OF JUDGMENT: | 17 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 90 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1826 (Judge Marich) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally cause injury (‘ICI’), theft – Brutal attack on good Samaritan – Very serious instance of ICI – First applicant sentenced to 3 years and 9 months’ imprisonment – Whether manifestly excessive – Childhood deprivation – Verdins 5 – Parity – Whether open to differentiate between co-offenders – Cancellation of second applicant’s visa inevitable – Prospect of deportation – Failure to take into account additional burden of imprisonment – Crown concession – Second applicant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Baroch) | Mr M Stanton with Ms H Anderson | David Barrese & Associates |
| For the Applicant (Ater) | Ms F Fox | Emma Turnbull Lawyers |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
MACAULAY JA
WHELAN JA:
Summary
These applications concern sentences imposed on two offenders for a series of offences committed — some jointly — over a two week period in July 2019. The first applicant (Baroch) pleaded guilty to three indictable offences: armed robbery, intentionally causing injury and theft, while the second applicant (Ater) pleaded guilty to nine indictable offences: robbery (2), theft (3), intentionally causing injury, carjacking, handling stolen goods and obtaining property by deception.
The offending conduct took place on six separate occasions. The most serious offences were those committed when Baroch and Ater were acting together: the armed robbery committed by Baroch (Ater pleaded guilty only to robbery) and, on a different occasion, the offences of intentionally causing injury and theft, committed jointly. As will appear, it was the sentences imposed for the latter offending which were the subject of most attention on the hearing of the applications. Unsurprisingly, there was no challenge to the sentence of 3 years and 6 months’ imprisonment imposed on Baroch for armed robbery.
On the charge of intentionally causing injury, Baroch was sentenced to 3 years and 9 months’ imprisonment, while Ater was sentenced to 3 years and 3 months’ imprisonment. Baroch contends that his sentence was manifestly excessive and, in the alternative, that there was no reasonable basis for the differential of 6 months between himself and Ater. Ater likewise advances a ground of manifest excess but her principal contention is that the judge failed to take into account the inevitable cancellation of her visa and the increased burden of imprisonment resulting from her facing the prospect of deportation.
For reasons which follow, we would refuse Baroch’s application for leave to appeal. The charges of intentionally cause injury arose from a very violent attack on a person who had come to offer assistance to the applicants, an attack which rendered him unconscious. In every relevant respect, this offending was at the high end of the scale of objective gravity. The sentence of 3 years and 9 months imposed on Baroch was moderate in the circumstances, reflecting the giving of full weight to the mitigating factors on which he was able to rely.
In the case of Ater, the Crown conceded that the judge had overlooked the question of visa cancellation and the impact on her of facing the prospect of deportation. As explained below, this occurred as a result of the way that issue was addressed before her Honour. On that ground alone, Ater’s application will be granted, and her sentence reduced to a limited extent.
We wish to acknowledge the great care with which the sentencing judge approached this extremely difficult sentencing task. It would have been complicated enough to have to deal with two offenders for a large number of offences, only some of which overlapped. But the issues raised on the plea resulted in her Honour having to consider six psychological reports, 11 written plea submissions, oral evidence from two expert witnesses and oral submissions from the respective defence counsel. The thoroughness with which her Honour investigated those issues, in a plea hearing which extended over six sitting days, is reflected in her clear and cogent sentencing reasons.
It is the experience of this Court that work of this high standard is typical of what sentencing courts are doing every day. That criminal justice is being administered with such care and capability should give the Victorian community great confidence. The task of arriving at a just sentence — that is, one which reflects the seriousness of the offence and recognises the impact on the victim/s while taking into account the circumstances of the offender — is one of great public importance and considerable difficulty. It would enhance the community’s sense of well-being if there were greater public recognition of the skill and diligence with which that responsibility is discharged.
Background
The offences to which the respective applicants pleaded guilty, and the sentences imposed, were as follows:
BAROCH
Charge Offence Maximum Sentence Cumulation 1 Armed Robbery[1] 25 years 3 years 6 months Base 6 Intentionally causing injury[2] 10 years 3 years 9 months 2 years 7 Theft[3] 10 years 2 years 12 months Related summary offences 3 Commit indictable offence whilst on
bail (armed robbery)[4]3 months 1 month — 6 Commit indictable offence whilst on
bail (theft)[5]3 months 1 month — 9 Deal with property suspected of being proceeds of crime[6] 2 years 1 month — 10 Possess prohibited weapon without excuse[7] 2 years 1 month — Total effective sentence: 6 years 6 months Non parole period: 4 years 3 months PSD (as at 16 November 2020): 476 days declared Section 6AAA: Total effective sentence 8 years, non-parole period 6 years [1]Contrary to s 75A of the Crimes Act 1958 (‘Crimes Act’).
[2]Contrary to s 18 of the Crimes Act.
[3]Contrary to s 74 of the Crimes Act.
[4]Contrary to s 30B of the Bail Act 1977 (‘Bail Act’).
[5]Contrary to s 30B of the Bail Act.
[6]Contrary to s 195 of the Crimes Act.
[7]Contrary to s 5AA of the Control of Weapons Act 1990.
ATER Charge Offence Maximum Sentence Cumulation 2 Robbery[8] 15 years 15 months 2 months 3 Theft[9] 10 years 1 month — 4 Theft 10 years 3 months — 5 Robbery 15 years 18 months 3 months 6 Intentionally causing injury[10] 10 years 3 years 3 months Base
7 Theft 10 years 2 years 12 months 8 Obtaining property by deception[11] 10 years 3 months 1 month 9 Handling stolen goods[12] 15 years 6 months 2 months 10 Carjacking[13] 15 years 30 months 12 months Total effective sentence: 6 years Non parole period: 4 years PSD (as at 16 November 2020): 476 days declared Section 6AAA: Total effective sentence 7 years and 6 months, non-parole period 5 years [8]Contrary to s 75 of the Crimes Act.
[9]Contrary to s 74(1) of the Crimes Act.
[10]Contrary to s 18 of the Crimes Act.
[11]Contrary to s 81(1) of the Crimes Act.
[12]Contrary to s 88 of the Crimes Act.
[13]Contrary to s 70 of the Crimes Act.
The charges concern the following separate incidents:
(a) armed robbery and robbery on 15 July 2019 involving victim G: Baroch charge 1, Ater charge 2;
(b) theft of petrol on 19 July 2019: Ater charge 3;
(c) theft of alcohol on 23 July 2019: Ater charge 4;
(d) robbery on 23 July 2019 involving victim H: Ater charges 5 and 9;
(e) attack on 25 July 2019, and subsequent theft, involving victim C: Baroch charges 6–7, Ater charges 6–8; and
(f) carjacking on 29 July 2019 in respect of victim P: Ater charge 10.
Baroch seeks leave to appeal on the following grounds:
(g) the individual sentences imposed on charge 6 and charge 7, as well as the orders for cumulation of those sentences, were each manifestly excessive;
(h) there is an unjustifiable disparity between the sentence imposed on him for the attack on C (Baroch charge 6) and the sentence imposed on Ater for the same offending (Ater charge 6); and
(i) the sentencing judge erred by not mitigating his sentence by reference to Verdins limb 6.[14]
[14]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
Ater seeks leave to appeal on the following grounds:
(j) the sentencing judge erred in failing to take into account the fact, and implications of, Ater’s possibility of deportation upon completion of her sentence; and
(k) the individual sentence on charge 6, the orders for cumulation, the total effective sentence and the non-parole period are each manifestly excessive.
As already indicated, we would refuse Baroch’s application for leave to appeal. We would allow Ater’s application on the deportation ground only, and would resentence her to a total effective sentence of 5 years and 3 months, with a non-parole period of 3 years and 6 months. These are our reasons.
The 25 July incident
The focus of both applications was on the sentences imposed on the applicants for offences committed during the incident on 25 July 2019. The judge described the circumstances of that offending as follows:
On 25 July 2019 at approximately 12:38 pm, the two of you attended the Truganina United service station in the stolen Golf to which I have already referred. You, Mr Baroch, exited the front driver’s seat, and you, Ms Ater, exited from the front passenger’s side. The two of you entered the store and purchased cigarettes. You then exited the store and returned to the Golf. You, Mr Baroch, entered the driver’s side, and you, Ms Ater, entered the front passenger’s side, and you left the service station in the Golf. In the process of exiting, you collided with another vehicle, driven by a witness by the name of R. This car stopped. A car being driven by a witness by the name of S, behind witness R, also stopped. Your victim, Mr C, witnessed the collision but continued driving.
S witnessed you, Mr Baroch, approach Ms R, who was still seated in her car, and you then started yelling at her before returning to your car and driving off. The witness S decided to follow the Golf as you sped away. The Golf caught up and overtook your victim C, and at that point Mr C also decided to follow the Golf. The witnesses noted that the car was being driven erratically, and at times on the wrong side of the road. As the Golf approached a sharp right-hand bend, it lost control and continued over a footpath and down a small embankment before crashing into a cluster of rocks.
S and C stopped their vehicles, and Mr C went to the Golf to render assistance, believing that you both may have been injured. In the meantime, you both exited the Golf and ran towards S, who decided to immediately drive off. The two of you approached Mr C and immediately started punching him whereby he fell to the ground, and you continued assaulting Mr C by kicking and stomping on his head. He lost consciousness. A neighbour in the vicinity … was awoken and looked out of her window and could see the two of you assaulting Mr C.
This is your Charge 6, Mr Baroch and Ms Ater, of intentionally causing injury to Mr C.
Ms S ran upstairs and told her mother what she had witnessed, and the two of them ran downstairs and onto the street where Mr C was lying.
As the two witnesses approached Mr C, they observed a large amount of blood on his face, and on the road. They then witnessed his car being driven off at a fast rate of speed. Mr Baroch and Ms Ater, this is your Charge 7, of theft of car. Mr Baroch, this is also your Summary Charge 3, of committing indictable offence whilst on bail.
Mr C started to regain consciousness, and was crying out for help. The mother called the police and waited with the victim until police and ambulance arrived. Mr C was taken to the Footscray Hospital where he was treated for facial injuries, and he was found to have a fractured eye socket.[15]
[15]DPP v Baroch [2020] VCC 1826, [23]–[29] (‘Reasons’).
On the charge of intentionally causing injury, Ater was sentenced to 3 years and 3 months’ imprisonment and Baroch was sentenced to 3 years and 9 months. Each applicant complains that the sentence imposed — and the measure of cumulation of the sentence — were manifestly excessive. Baroch also contends that it was not open to the judge to arrive at a sentencing differential of 6 months between himself and Ater.
We deal first with the objective gravity of the offending. This was, in our view, a very serious example of the offence of intentionally causing injury. This was properly acknowledged by both applicants’ counsel on the plea. In our view, the seriousness of the conduct is accurately captured in the Crown’s written case filed in response to Ater’s application:
The victim was acting as a good Samaritan, he was set upon in a surprise unprovoked attack by the applicant and [her] co-offender and beaten into unconsciousness by multiple punches and kicks that caused significant injuries (bleeding and a fractured eye socket) before they stomped on his head while he was lying prone on the ground. This was a prolonged attack. Having caused the injuries, the applicant did not render any assistance to the victim and left him lying unconscious on the street before stealing his car to make a getaway. The injuries sustained by the victim are at the upper end of what can sensibly be described as ‘mere injuries’ without straying into the territory of ‘serious injury’.
That characterisation was not challenged by either applicant.
The framework for assessing the seriousness of a particular instance of intentionally causing injury (‘ICI’) is the same as that used for the offence of intentionally causing serious injury (‘ICSI’), the only difference between the two offences being the nature and extent of the injury caused. It is therefore relevant to consider (amongst other things) the offender’s proven intent, the seriousness of the injury caused, the duration of the attack and whether the offender acted alone or in company.[16]
[16]DPP v Terrick (2009) 24 VR 457, 466-7 [40]–[41] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220; Nash v The Queen (2013) 40 VR 134, 137 [10] (Maxwell P); [2013] VSCA 172.
On all of those measures, this was very serious offending indeed and the applicants’ moral culpability had to be viewed as high. The sustained brutality of the applicants’ attack on C is truly shocking. Their conduct, in beating him to unconsciousness and then stomping on his head while he lay defenceless on the ground, shows that they were determined to hurt C really badly. Leaving him lying unconscious on the road was callous and cruel. As this Court said in Gommers v The Queen,[17] the seriousness of an offence of this kind ‘is not only to be gauged by the injuries caused, but by the manner of their infliction’.[18]
[17][2021] VSCA 258, [44] (Priest and Kaye JJA).
[18]See Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA); DPP v Milson [2019] VSCA 55, [61] (Priest and Weinberg JJA); Shau v The Queen [2020] VSCA 252 (Priest JA).
As to the relative seriousness of the injuries, it must be borne in mind that the upper limit of the scale of seriousness for this offence (ICI) is ‘something just falling short of serious injury’, that being the threshold for ICSI. In the present case, we accept the respondent’s (unchallenged) submission that the injuries inflicted on C were at the upper end of the scale of ‘injury’ for the purposes of ICI.
In Harvey v The Queen, this Court (Beach, Niall and Whelan JJA) stated:
It is often the case that the extent of the injury will inform the gravity of the offending on a charge of intentionally causing injury or serious injury. The offence of intentionally causing injury is capable of capturing conduct that ranges from a minor injury to something just falling short of serious injury. In Rivera v The Queen, a sentence of 5 years and 11 months on a charge of intentionally causing injury was upheld where the injuries were said to be potentially life threatening. In Byrne v The Queen, this Court upheld a sentence of 5 years and 6 months on a charge of intentionally causing injury. In that case, the offender, when in prison, brutally set upon another prisoner, striking and kicking him to the head multiple times. The injuries sustained included serious facial fractures and were at the very high end of the range for offending of that kind, and the attack was held to be particularly vicious and deliberately brutal. The offender had a significant criminal history that demonstrated an ongoing propensity to commit violent offences of a serious nature.[19]
[19][2021] VSCA 84, [39] (emphasis added, citations omitted) (‘Harvey’).
For the reasons we have given, this instance of ICI was — in every relevant respect — at the high end of the scale of objective gravity. For that reason, what was said in Harvey about sentences in the range between 5 and 6 years informs the question of the sentencing range applicable in the present case.
Before turning to the matters relied on in mitigation, it should also be noted that Baroch was on bail at the time he committed this offence. That is, of course, an additional feature of aggravation.[20] As will appear, that was the only matter which, in the view of the sentencing judge, differentiated Baroch’s ‘role and criminality’ from Ater’s. We also note that s 16(3C) of the Sentencing Act 1991 creates a presumption of cumulation for any sentence imposed for an offence committed while on bail.
[20]See Schaeffer v The Queen [2021] VSCA 171, [70] (Priest, Kaye and T Forrest JJA); Georges v The Queen [2015] VSCA 82, [31] (Priest JA, Bongiorno JA agreeing).
It was also highly relevant that Baroch had prior convictions for offences of violence. He was convicted in 2015 of two charges of recklessly causing injury and, in 2016, of recklessly causing injury and aggravated assault of a female. In those circumstances, and given that he had offended on bail, specific deterrence and community protection had to be viewed as very important sentencing considerations.[21]
[21]Marku v The Queen [2012] VSCA 51, [42], [46] (Williams AJA, Buchanan and Bongiorno JJA agreeing); Osborne v The Queen [2018] VSCA 160, [42] (Maxwell ACJ, Priest and Kyrou JJA agreeing).
Of the matters relied on in mitigation, the most significant was the appalling trauma which Baroch experienced in his formative years. The judge set out the relevant circumstances as follows:
Mr Baroch, you are now 26 years of age, and were 24 at the time of offending. You were born in Southern Sudan, and were raised by your mother and father, together with two older brothers, one older sister and two younger sisters.
As is set out in the first report of Dr Aaron Cunningham, you were raised in the context of war and were exposed to people being killed and kidnapped in your presence. You witnessed your neighbour being killed, and their body placed in the back of a truck.
When you were aged around eight, secret army police came in the middle of the night and took your father, who had been accused of being a rebel. You told Dr Cunningham that your father was not a rebel and was not politically affiliated. Your mother attempted to find your father, without success. You later understood that people in the neighbourhood had informed authorities out of jealousy or spite. You never got to say goodbye to your father.
Your family fled to Egypt, and you lived in Egypt between 2002 and 2005 in a refugee camp, where people were dying from disease and suicide. Your family suffered severe racism, and you recall being beaten and called infidels.
You relocated to Australia in 2005 as refugees, and lived in Sunshine with one of your cousins. You told Dr Cunningham that you struggle in Australia, not being able to speak English and not adapting to cultural differences. Understandably, you felt angry and aggrieved that you did not have a father and had no answers as to what had happened as to his disappearance.
From the age of 13, you were back and forth from the family home, and began abusing drugs and alcohol.[22]
[22][2020] VCC 1826, [45]–[50].
In this Court, counsel for Baroch submitted that it would be difficult to find ‘a more powerful example of profound disadvantage in those formative years’. Counsel relied on the recent decision in Director of Public Prosecutions v Herrmann,[23] where the Court held that the relevance of deprivation to sentencing did not depend on proof of a direct causal nexus between the deprivation and the offending and, further, accepted that the impact of disadvantage was ‘complex, multi-layered [and] non-linear’.[24] Baroch’s disadvantaged background should have been regarded, it was submitted, as ‘significantly’ reducing his moral culpability and as warranting a ‘sensible’ moderation of the weight to be afforded to general and specific deterrence.
[23][2021] VSCA 160 (‘Herrmann’).
[24][2021] VSCA 160, [44]–[45].
Quite properly, counsel for Baroch acknowledged that the infliction of punishment for criminal conduct proceeds on the assumption that people take responsibility for the choices they make — to do, or not do, particular things. More particularly, counsel accepted that Baroch had had the capacity to choose not to do what he did on this occasion, but submitted that he should be viewed as having had less capacity for self-control than someone who came from a stable and untroubled background.
According to the submission, the significance of Baroch’s disadvantaged background was not diminished by the fact that, at the time of this offence, he was in a state of self-induced intoxication with drugs. What was acknowledged to be a serious history of drug addiction was said to have a ‘clear link’ to Baroch’s background, and his consumption of illicit substances should be seen as reflecting his need to ‘dull the pain’ of his childhood experiences. On this analysis, Baroch’s background should be seen to have made him more susceptible to illicit drug addiction than someone from a stable background.
In her reasons, her Honour noted the plea submission made on behalf of both applicants that, in accordance with the High Court decision in Bugmy v The Queen,[25] their traumatic and deprived backgrounds ‘may mitigate the sentence that would otherwise be appropriate’. Her Honour continued:
The court in Bugmy held that the effects of profound deprivation do not diminish over time and they are to be given full weight in the determination of the appropriate sentence in every case. The experience of growing up in an environment surrounded by deprivation, and extreme violence, may leave its mark on a person throughout life (at [43] and [44] of Bugmy). I accept without question the mitigatory effects of each of your traumatic backgrounds, including in your case, Ms Ater, the effects of your more recent domestic violence.
However, in Bugmy at [44], it was noted that that was not to suggest, that an offender’s deprived background has the same (mitigatory) relevance for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion, in my case, so difficult. Your childhood exposure to violence may explain your recourse to violent and opportunistic means to obtain property for instance, to fund your drug habit. However, the inability to control the violent response to resistance to those attempts may increase the importance of the need to protect the community from you.[26]
[25](2013) 249 CLR 571, 592 [37] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); [2013] HCA 37 (‘Bugmy’).
[26]Reasons [108]–[109].
This was, with respect, an exemplary summation of the Bugmy principles. In fact, it was the judge herself who had said to counsel for Baroch, on the third day of the plea hearing, that it appeared to her that there was a ‘Bugmy point’ available which had not been elaborated. In response to her Honour’s invitation, counsel then filed a detailed submission addressing the significance of Baroch’s disadvantaged background.
Given that her Honour expressly accepted the mitigating force of Baroch’s childhood trauma, success on the manifest excess ground depends on showing that the sentence of 3 years and 9 months could not reasonably have been arrived at if proper weight had been given to this and other mitigating factors.[27] Axiomatically, a complaint of insufficient weight can only be evaluated by examining the sentence actually imposed. To that end, counsel invited the Court to consider what sentence was likely to have been imposed had Baroch not pleaded guilty, not shown remorse and not been able to rely on the Bugmy principles.
[27]Clarksonv The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich, Harper JJA); [2011] VSCA 157.
As this Court pointed out in Herrmann, the assessment of an offender’s moral culpability is a moral judgment.[28] It is, inescapably, a subjective judgment, and one of considerable difficulty. In our respectful view, the judge faced a peculiarly difficult task in determining, first, to what extent Baroch’s dreadful beginning in life should be seen as lessening his moral blameworthiness for this appalling conduct and, secondly, to what extent moderation of specific and general deterrence was called for.
[28][2021] VSCA 160, [14] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
In addition to the plea of guilty and remorse, the other factor relied on in mitigation was the judge’s affirmative finding that Verdins principle 5 was applicable to Baroch. Her Honour was satisfied that the symptoms described by the expert witnesses — significant paranoia, perceptions of threat and mistrust of others — meant that the sentence would weigh more heavily upon him than on a person in normal health and that, as a result, ‘considerable mitigatory weight’ would attach to the operation of Verdins 5. (We deal further with the nature of Baroch’s condition in considering his ground 3.)
Some consideration of comparable cases is almost always necessary to enable this Court to deal with a ground of manifest excess. Examining cases which are ‘relevantly similar or instructively different’[29] assists with the identification of the appropriate sentencing range for the case at hand.[30] Together with relevant sentencing statistics, cases of that kind are the surest guide to current sentencing practices, to which reference is mandated by the Sentencing Act 1991.[31]
[29]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 671 [49] (Maxwell P); [2015] VSCA 266.
[30]Tawfik v The Queen [2021] VSCA 289, [13]–[14] (Maxwell P, McLeish and T Forrest JJA); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 296-7 [3]–[4] (Maxwell P, Whelan and Priest JJA); [2014] VSCA 145.
[31]DPP v CPD (2009) 22 VR 533, 552 [78] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 114.
At the Court’s request, counsel for each party filed a helpful submission identifying comparable cases. Of particular assistance was a table prepared by counsel for Ater, which set out the key details of seven decisions of this Court in appeals against sentences imposed for ICI.[32] Counsel for both applicants identified what were said to be relevant similarities and differences between those cases and this.
[32]Dunford v The Queen [2021] VSCA 304; Gommers v The Queen [2021] VSCA 258; Harvey v The Queen [2021] VSCA 84; Matthews v The Queen [2021] VSCA 20; Rivera v The Queen [2020] VSCA 5; DPP v Smith [2019] VSCA 266; Buddle v The Queen [2014] VSCA 232.
We have reviewed all of the decisions in the table, which provide a framework for comparative analysis. That analysis reveals, however, that Baroch’s complaint of manifest excess must be rejected. When regard is had to the objective seriousness of this instance of ICI, and to Baroch’s criminal history, a sentence of 3 years and 9 months must be regarded as moderate. It is quite apparent, therefore, that substantial weight was given to the matters relied on in mitigation.
Nor, in our view, is there any merit in the complaint about the theft sentence of 2 years’ imprisonment or the orders for cumulation (of 2 years of the ICI sentence and 12 months of the theft sentence). The theft of C’s car was, in the circumstances, a serious example of the offence, involving high culpability on the part of both applicants. The sentence of 2 years was, again, moderate. Given that the criminality involved in the theft was separate from that involved in the ICI offence, and given that the events of that day were quite separate from Baroch’s other offending conduct, the total cumulation of 3 years seems entirely appropriate.
Ground 2: disparity
Baroch submitted that it was not reasonably open to the judge to differentiate between himself and Ater in the sentences he imposed for the ICI offence. Baroch’s sentence for that offence was 3 years and 9 months’ imprisonment, whereas Ater’s was 3 years and 3 months’ imprisonment.
This complaint must also be rejected, in our view. As noted earlier, the judge accepted that there was nothing to distinguish between the co-offenders as to ‘role and criminality’, save that Baroch was on bail at the time. Given the significance of that aggravating factor, as referred to earlier, it was well open to her Honour to impose sentences which resulted in a sentencing differential of 6 months. That is so notwithstanding that, unlike Ater, Baroch was able to rely on Verdins 5.
Ground 3: whether Verdins 6 was applicable
As noted earlier, the judge accepted that Verdins 5 was applicable. Her Honour made no finding, however, with respect to the applicability of Verdins 6, on which the written plea submission had relied. Verdins 6 is applicable if the evidence shows that there is ‘a serious risk of imprisonment having a significant adverse effect on the offender’s mental health’. The proposed ground of appeal contends that the judge erred in failing to consider Verdins 6 and, further, in failing to mitigate Baroch’s sentence on that account.
The plea submission relied on the report of Dr Aaron Cunningham, a forensic psychologist, in which he said:
In my opinion, Mr Baroch’s presentation is consistent with Post Traumatic Stress Disorder. He has been exposed to significant abuse and trauma. He has distressing recollections of trauma. He suffers depressive symptoms in the form of hopelessness and worthlessness. He experiences significant anxiety in the form of hypervigilance, difficulty concentrating, irritability and outbursts of anger, reckless and self-destructive behaviour and sleep disturbance.
…
In my opinion, Mr Baroch’s untreated Post Traumatic Stress Disorder and paranoia contributed to his offence behaviour in conjunction with his drug and alcohol abuse. In the absence of drug and alcohol abuse, Mr Baroch continues to struggle to suppress his perceptions of threat and tendency to overreact in a violent manner. He struggles in gaol and is placed in solitary confinement due to conflict with others.
…
Ongoing incarceration and exposure to threat and danger will perpetuate and aggravate his paranoia.[33]
[33]Emphasis added.
The sentencing judge commissioned a pre-sentence report from Forensicare. The report, by Dr Fiona Best, a consultant psychiatrist, concluded that while Baroch had ‘some aspects suggestive of Post Traumatic Stress Disorder’, he did not meet the full criteria for that condition. Dr Best said:
Mr Baroch has developed a mistrust of others which are post-traumatic stress symptoms and in this regard, incarceration is likely to weigh more heavily on him than on an individual who does not have Mr Baroch’s traumatic developmental history.
In our view, the judge’s failure to mention Verdins 6 was, in the circumstances of this case, understandable. It is apparent from the transcript of the plea, and from her Honour’s detailed references to the competing expert opinions, that she paid the closest attention to the expert evidence.
As will be apparent from the extracts set out above, it was common ground that Baroch’s symptoms of mistrust and paranoia would make his time in custody more difficult. That was the matter which her Honour, properly, took into account under Verdins 5. Given that there was no consensus between the experts that incarceration would result in any significant worsening of those symptoms, it was well open to her Honour to conclude, as she evidently did, that Verdins 6 had no additional work to do.
Ater’s application
As noted earlier, Ater relies on two proposed grounds of appeal. The first concerns the judge’s failure to take into account the possibility that Ater would be deported upon completion of her sentence. The second is a complaint of manifest excess. For reasons set out below, we have concluded that the first ground should succeed and that, as a result, Ater should be resentenced. It is therefore unnecessary to address separately the complaint of manifest excess.
Failure to take into account the risk of Ater’s deportation
Before the sentencing judge the issue of deportation was referred to in an outline of plea submissions, under the heading ‘Plans for the Future’. Three matters were referred to. The first was the issue of deportation. The second was that upon her release into the community Ms Ater intended to reside with her mother, to commence raising her young children, and to re-join the workforce. Thirdly, reference was made to the fact that Ms Ater has a close relationship with a younger sister who has been herself a victim of an attack and whom Ms Ater hopes to support upon returning home.
The passage in the outline dealing with deportation read as follows:
Ms Ater is not a citizen of Australia but is a permanent resident. She has previously received terms of imprisonment for criminal offending. In 2019 she was sentenced to 4 months’ imprisonment, whilst in 2018 she was sentenced to 161 days of imprisonment (a little over 5 months). As such, she has been sentenced to a total of around 9 months’ imprisonment. It seems inevitable that Ms Ater’s sentence in relation to these charges will mean that she will have received jail sentences exceeding 12 months. As such the prospect of her position in Australia could potentially be at risk. While deportation in Ms Ater’s case ought be viewed as a speculative possibility, the fact remains that these proceedings have caused distress for Ms Ater as she has grave fears of separation from her mother, who is a citizen, and her children, who are also citizens. This scenario has meant that her time in custody, putting aside other factors, has been very onerous for her.
In her sentencing reasons, the sentencing judge did not refer to the issue of deportation. The Crown concedes that:
the learned sentencing judge does not appear to have taken into account either the prospect of the applicant’s deportation weighing on the applicant’s mind during the term of imprisonment or the extra-curial punishment of being deprived of the opportunity of settling permanently in Australia.
The applicant having been sentenced to a term of imprisonment of more than 12 months, her visa entitling her to reside in Australia had to be cancelled by the Minister.[34] This was a mandatory cancellation. After cancellation, the Minister retains the discretion to revoke the visa cancellation.[35] Unless the Minister does so, the visa remains cancelled and the person is required to be removed from Australia.[36]
[34]Migration Act 1958 (Cth) s 501(7)(c) and s 501(3A)(a)(i).
[35]Ibid. Section 501CA(4).
[36]Ibid. Sections 501, 503, 198.
The potential for an offender to be deported at the completion of a sentence is relevant to the sentencing process as it may render imprisonment more onerous, and may constitute additional punishment in that it destroys the opportunity to settle permanently in Australia.[37] Whether it does so, and the extent to which it does so, depends upon the prisoner’s personal circumstances.[38] Where a person has come to Australia at an early age, and has no apparent ties with the country to which they are likely to be deported, general conclusions as to the likely impact of deportation can be drawn even in the absence of evidence directed to that issue.[39]
[37]Allouch v The Queen [2018] VSCA 244, [39] (Beach and Weinberg JJA).
[38]Konamala v The Queen [2016] VSCA 48, [34] (Maxwell P, Redlich and Priest JJA).
[39]Loftus v The Queen [2019] VSCA 24, [71] (Whelan AP and Niall JA) (‘Loftus’).
In the present case, no evidence was led concerning the potential impact of deportation on Ms Ater. But the material before the sentencing judge revealed that she had been born in South Sudan, that her father was deceased, that she had come to Australia at the age of nine years with her mother and siblings, and that she had two young children of her own in her mother’s care. In our view, these circumstances support the inference that the potential for deportation will make Ms Ater’s time in prison more onerous and will constitute additional punishment. The potential for deportation was accordingly a relevant sentencing consideration.
After sentence, the applicant’s visa was cancelled. She was notified of the cancellation on 29 January 2021.
As the respondent’s written case stated,
[t]here is nothing to show that the fact of deportation, and the implications of deportation, were taken into account by the learned sentencing judge when imposing sentence on the applicant.
In submissions before us, the respondent conceded that the potential for deportation was a relevant sentencing consideration which ought to have been taken into account.
The respondent nevertheless submitted that leave to appeal should not be granted on this ground because there was no evidence of the effect on Ms Ater of the potential for deportation, and there was no reasonable prospect that the Court would impose a less severe sentence, or would reduce the total effective sentence.[40]
[40]Criminal Procedure Act 2009 s 280(1).
The only material before this Court was a fax transmission from the Dame Phyllis Frost Centre, containing the notice of cancellation dated 29 January 2021 and what appears to be a partially-completed request for revocation of the cancellation. In response to questions from the Court about the absence of evidence, counsel for Ms Ater relied upon Loftus, a case where the potential for deportation had not been raised at all before the sentencing judge. Counsel informed the Court that a more detailed application for revocation had been made by or with the assistance of a community legal service, Refugee Legal; and that an affidavit could be filed addressing that application and the effect of potential deportation on Ms Ater.
The Court raised the possibility that the situation might be one relevantly falling within the principles in R v Nguyen.[41] Counsel initially resisted that suggestion, maintaining that the position was relevantly similar to that before the Court in Loftus. After further consideration over the luncheon adjournment, counsel applied to add a fresh ground of appeal to the effect that the visa cancellation by the notice dated 29 January 2021 constituted fresh evidence. Leave was sought, and granted, to file an affidavit addressing the issue of deportation.
[41][2006] VSCA 184.
No affidavit was filed, however. Rather, Ms Ater’s solicitors forwarded to the Court and to the respondent a letter from a solicitor at Refugee Legal outlining the applicant’s relevant circumstances and enclosing a detailed revocation request, together with 18 supporting documents. The respondent did not object to the manner in which this material was presented to the Court, and the respondent advised that there were no submissions which the respondent wished to make on the deportation issue. In the circumstances, we are prepared to accept the material relating to deportation in the form in which it was submitted.
Moreover, we consider that the applicant’s initial position — that what occurred here is relevantly the same as that addressed in Loftus — is correct. Unlike the position in Loftus, it cannot be said here that the issue of deportation was not raised at all. We accept, however, that the terms in which it was raised, the context in which it was raised, and the emphasis given to it make the position relevantly the same as that in Loftus, where the issue was not raised at all.
In relation to the terms in which the issue was raised, the judge was told that deportation was a ‘speculative possibility’. This can only have been a misunderstanding of Ms Ater’s position and of the way in which the legislation operated. She was clearly facing the prospect of a term of imprisonment in excess of 12 months. If that occurred, visa cancellation was mandatory. She could then only seek to persuade the Minister to revoke that cancellation.
As to context, the issue was raised in the context of ‘future plans’, all of which were clearly based on an assumption that Ms Ater would remain in Australia. As to the emphasis given to the matter, the issue was raised once in writing, in the terms and context referred to, and never raised again.
Although we must now conclude that the judge made an error in failing to take into account the potential for deportation, in the circumstances her Honour can hardly be criticised for having done so. The judge went to extraordinary lengths to ensure that all relevant material was before her and she devoted considerable time and attention to the sentencing task. Her failure to take into account the potential for deportation was a result of the way the matter was addressed before her. The only reference to the issue was in one written submission, which otherwise implicitly assumed that the applicant would remain in Australia.
Nevertheless, as we have said, the Crown accepts that the risk of deportation is a relevant mitigatory factor which was not taken into account. In the circumstances, leave to appeal must be granted on ground 1 and the appeal allowed.
As we have accepted that this is a situation relevantly the same as that in Loftus, the application to add a proposed ground relying on fresh evidence is unnecessary. We refuse that application. The material filed can be relied upon, not as fresh evidence, but as material relevant to resentence.
The revocation request, and the 18 supporting documents to which we have referred, make a detailed and comprehensive case for revocation of the visa cancellation. The applicant was born in South Sudan. Her father was killed in the civil war before her birth. Her father was Dinka. Her mother is Nuer. She describes herself as being of mixed ethnicity. She says that in South Sudan she is not accepted by either ethnic group. Her father’s brother took over her father’s role until he also died.
The applicant grew up in a refugee camp in Kenya before coming to Australia with her mother and siblings at the age of nine. Her experiences in the refugee camp were very disturbing.
The revocation request and the supporting material address considerable attention to the applicant’s difficulties in adjusting to life in Australia; to the positive aspects of her life here, including completing Year 12 and obtaining a tertiary qualification; to the circumstances of her offending; and to her expressions of remorse. For present purposes, the material reveals that:
(l) The applicant has an apparently well-founded fear of deportation to South Sudan. She says she will have no support there and will be subjected to mistreatment because of her mixed ethnicity. She has no faith in the police in South Sudan. She is scared she will be ‘raped, forced to marry or be stolen’. She describes the prospect of deportation to South Sudan as ‘a terrifying thing to think about’.
(m) The applicant also has an apparently well-founded fear that a health condition from which she has suffered since birth, Hepatitis B, will not be adequately monitored and treated in South Sudan.
(n) The applicant has obvious fears and concerns in relation to the welfare of her two young children, and her mother and her siblings, and in relation to her relationship with them, if her visa cancellation is not revoked and she is deported.
This material supports the inference which would have been drawn in any event, as to the effect of the prospect of deportation on the burden of imprisonment by reason of concerns about her family, particularly her two children. In addition, it reveals that the applicant has apparently well-founded fears for her own life and safety if she is deported to South Sudan. There is then the further consideration of the additional punishment constituted by the potential loss of the ability to permanently settle in Australia. These matters must be taken into account on resentence.
We resentence this applicant as follows:
| Charge on Indictment C1912821.1 | Offence | Maximum | Original Sentence | Original Cumulation | Resentence | Cumulation On Resentence | |
| 2 | Robbery | 15 years | 15 months | 3 months | 13 months | 2 months | |
| 3 | Theft | 10 years | 1 month | – | 1 month | ||
| 4 | Theft | 10 years | 3 months | – | 3 months | ||
| 5 | Robbery | 15 years | 18 months | 3 months | 16 months | 2 months | |
| 6 | Intentionally causing injury | 10 years | 39 months | Base | 36 months | Base | |
| 7 | Theft | 10 years | 2 years | 12 months | 22 months | 10 months | |
| 8 | Obtaining property by deception | 10 years | 3 months | 1 month | 3 months | 1 month | |
| 9 | Handling stolen goods | 15 years | 6 months | 2 months | 6 months | 2 month | |
| 10 | Carjacking | 15 years | 30 months | 12 months | 28 months | 10 months | |
| Total Effective Sentence | 5 years 3 months | ||||||
| Non–Parole Period | 3 years 6 months | ||||||
| Section 6AAA Statement: | 7 years, non-parole period 4 years 6 months | ||||||
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