Benjamin Mark Holland v The Queen

[2019] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0199

BENJAMIN MARK HOLLAND	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2019
DATE OF JUDGMENT:	5 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 173
JUDGMENT APPEALED FROM:	[2018] VCC 897 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – False imprisonment – Common assault – Armed robbery – Applicant one of three co-offenders – Applicant sentenced to four years and six months’ imprisonment – Whether principle of parity infringed – Co-offenders differentiated – Disparity not marked or manifest – Leave to appeal refused – Collins v The Queen [2015] VSCA 106 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Lenthall	Ann Valos Criminal Law
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for the Director of Public Prosecutions

T FORREST JA
CROUCHER AJA:

1. On 16 April 2018, the applicant, Benjamin Holland, pleaded guilty in the County Court of Victoria to one charge of false imprisonment, one charge of common assault and one charge of armed robbery.  The applicant was one of three co-offenders who were convicted in relation to the assault, false imprisonment and armed robbery of Peter Kearney on 14 to 15 September 2016. 

1. The applicant conducted his plea together with one of his co-offenders, John Fonua, and both were sentenced by a judge of the County Court on 14 June 2018.[1]  Fonua pleaded guilty to one charge of false imprisonment, one charge of common assault, one charge of armed robbery and one charge of possessing an imitation firearm while prohibited. 

   [1]DPP v Fonua [2018] VCC 897 (‘Reasons’).

1. Another co-offender, Bronwyn Holland, is the applicant’s sister.  She had earlier pleaded guilty on 11 May 2017 to one charge of handling stolen goods, one charge of theft, one charge of false imprisonment, one charge of intentionally causing injury and one charge of armed robbery.  She was sentenced by the same judge on

   
   

   6 September 2017.[2]  The charges for handling stolen goods and theft relate to offences committed earlier on 14 September 2016, which did not involve the applicant or Fonua. 

   [2]DPP v Holland [2017] VCC 1275 (‘Bronwyn Holland Reasons’).

1. The applicant was sentenced as follows:

   
   
   

Charge	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (common law)	10 years’ imprisonment Crimes Act 1958 s 320	2 years’ imprisonment	6 months
2.	Common assault (common law)	5 years’ imprisonment Crimes Act 1958 s 320	1 year’s imprisonment	6 months
3.	Armed robbery Crimes Act 1958 s 75A	25 years’ imprisonment	3 years and 6 months’ imprisonment	Base
Total effective sentence:		4 years and 6 months’ imprisonment
Non-parole period:		2 years and 9 months
Pre-sentence detention:		459 days
Section 6AAA statement: 6 years’ imprisonment with a non-parole period of 4 years and 6 months
Other relevant orders: Forfeiture order

1. Fonua was sentenced as follows:

   
   
   

Charge	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (common law)	10 years’ imprisonment Crimes Act 1958 s 320	2 years’ imprisonment	6 months
3.	Armed robbery Crimes Act 1958 s 75A	25 years’ imprisonment Crimes Act 1958 s 75A	3 years and 6 months’ imprisonment	Base
4.	Common assault (common law)	5 years’ imprisonment Crimes Act 1958 s 320	1 year’s imprisonment	6 months
5.	Prohibited person possess imitation firearm Control of Weapons Act 1990 s 5AB(2)	10 years’ imprisonment  or 1200 penalty units Control of Weapons Act 1990 s 5AB(2)	18 months’ imprisonment	6 months
Total effective sentence:		5 years’ imprisonment
Non-parole period:		3 years
Pre-sentence detention:		632 days
Section 6AAA statement: 7 years’ imprisonment with a non-parole period of 5 years
Other relevant orders: Forfeiture order

1. Ms Holland was sentenced as follows:

   
   
   

Charge	Offence	Maximum	Sentence	Cumulation
1.	Handling stolen goods Crimes Act 1958 s 88	15 years’ imprisonment	6 months’ imprisonment	Nil
2.	Theft Crimes Act 1958 s 74(1)	10 years’ imprisonment Crimes Act 1958 s 74(1)	6 months’ imprisonment	Nil
3.	False imprisonment (common law)	10 years’ imprisonment Crimes Act 1958 s 320	1 year and 6 months’ imprisonment	6 months
4.	Causing injury intentionally Crimes Act 1958 s 18	10 years’ imprisonment	1 year and 6 months’ imprisonment	6 months
5.	Armed robbery Crimes Act 1958 s 75A	25 years’ imprisonment	3 years’ imprisonment	Base
Total effective sentence:		4 years’ imprisonment
Non-parole period:		2 years and 6 months
Pre-sentence detention:		107 days
Section 6AAA statement: 6 years’ imprisonment with a non-parole period of 4 years and 6 months
Other relevant orders: Nil

1. The only ground of appeal is couched in the following terms:

Ground 1:      The learned sentencing judge erred in imposing individual                   sentences and a total effective sentence that offend the   principle of parity.

Particulars

a.        Differentiating between Benjamin Holland and   Bronwyn Holland where it was not reasonably open to   do so.

b.        Failing to differentiate between Benjamin Holland on   the one hand and Bronwyn Holland and John Fonua on   the other where it was not reasonably open to do so.

1. Thus this appeal concerns the disparity between the sentences imposed on the applicant and Ms Holland, and the lack of disparity between the sentences imposed on the applicant and Fonua.

Summary of the offending

1. On 14 September 2016, Kearney attended at the home of Fonua to speak to a person about a debt.  Fonua invited Kearney into the house.  The applicant and his sister were present inside the house, and both knew Kearney. 

1. Inside the house, Fonua contacted the person Kearney was looking for and Kearney arranged to meet her elsewhere.  Kearney shook Fonua’s hand and attempted to leave the house.  As Kearney reached the front door, the applicant and his sister began laughing.  Kearney was unable to open the front door because it had been deadlocked.   

1. Ms Holland approached Kearney and said, ‘Do you know who the fuck I am?  I am Bronwyn.’  The applicant also approached Kearney.  Ms Holland said to Kearney, ‘You are not going nowhere,’ and hit Kearney with her right fist.  Kearney held up his arms to protect his face, and was hit another three or four times in the arms.  He was then kicked in the stomach with significant force and dropped to the ground. 

1. Kearney curled up to protect himself.  The applicant and his sister stomped on Kearney’s head about eight or nine times. 

1. Subsequently, Fonua intervened and asked, ‘What the fuck is going on?  This is my house,’ and the assault stopped.  Fonua, who had not been present at the commencement of the assault, pointed an imitation handgun at Kearney’s head and told him to ‘get the fuck up’.  Kearney was led to a rear room of the house, and held there for approximately one hour.  Fonua then led Kearney back to the front room, where the applicant was sitting on a couch holding a gun.  Kearney was forced at gunpoint to sign vehicle transfer papers which Ms Holland had prepared. 

1. After Kearney signed the transfer papers, the applicant held a lit blow torch near Kearney’s face, and threatened to burn him and kill his family if he were to go to the police.  Ms Holland gave Kearney a cigarette and a glass of cordial.  The applicant walked around with a gun in his hand ‘tormenting’ Kearney, while Fonua packed a bag.

1. After some time, Fonua asked Kearney to stand.  The applicant held a gun to Kearney’s face and Kearney was forced to put a pillowcase over his own head.  Fonua then punched Kearney with significant force, causing Kearney to be thrown back and to hit his head on the floor.  These events were captured on a video found on Fonua’s mobile phone.  Kearney was walked to a vehicle, still with the pillowcase over his head.  Kearney was eventually released from the vehicle in Geelong.   

1. The next day, Ms Holland was seen on several occasions driving Kearney’s vehicle. 

1. Ms Holland pleaded guilty to the charges outlined above in paragraph 3 on

   
   

   11 May 2017, prior to any committal hearing.  The applicant and Fonua pleaded guilty on 16 April 2018, the first day of the trial, after a contested committal hearing at which Kearney was cross-examined. 

This appeal

1. The applicant contended that his sentence of four years and six months’ imprisonment (with a non-parole period of two years and nine months) should have been the same as, or substantially closer to, the term of imprisonment of four years (with a non-parole period of two years and six months) for

   
   

   Ms Holland.  More specifically, the applicant contended that his sentence of three years and six months for armed robbery is manifestly disparate to Ms Holland’s sentence of three years for the same offence.

1. The applicant also contended that his sentence should not have been the same as the sentences received by Fonua for the charges of false imprisonment, armed robbery and common assault. 

Applicable legal principles

1. The legal principles applicable to a complaint of disparity are not in dispute.[3]  In Collins v The Queen, they were summarised in the following terms:

Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.  If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.   However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.   When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[4]

[3]See, eg, Lowe v The Queen (1984) 154 CLR 606, 609–10 (Gibbs CJ), 610–11 (Mason J) (‘Lowe’);  Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ) (‘Green’); Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’); Vi v The Queen [2017] VSCA 254.

[4]Collins [2015] VSCA 106 [23] (citations omitted).

1. To similar effect is the following summary of the principles in Ryan v The Queen:

As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done.  The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity.  Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’.  No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[5]

[5]Ryan [2016] VSCA 255 [42].

1. The question, therefore, is ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co‑offenders in the way she did’.[6]  If not, the applicant will have a ‘justifiable sense of grievance’ concerning his sentence.  This test is analogous to the stringent test for establishing manifest excess.[7]  While this Court may reduce a sentence that it would not otherwise have considered manifestly excessive in order to avoid an unacceptable disparity,[8] it is not obliged to impose a sentence that is wholly inadequate simply because a co-offender received an excessively lenient sentence.[9]

   [6]Hilder v The Queen [2011] VSCA 192 [37].

   [7]Ibid [38]; Collins [2015] VSCA 106 [23].

   [8]Green (2011) 244 CLR 462, 474 (French CJ, Crennan and Kiefel JJ), citing Lowe (1984) 154 CLR 606, 609–10 (Gibbs CJ).

   [9]See Capper v The Queen (1993) 69 A Crim R 64, 67–73 (Wallwork J), 73–4 (Anderson J); Lowe (1984) 154 CLR 606, 612–14 (Mason J).

1. Thus the question raised by this ground is whether it was reasonably open to the judge to impose the sentences which she did, given the sentences imposed on Ms Holland and on Fonua, and all of the circumstances relevant to each offender.  If not, then the applicant has a ‘justifiable sense of grievance’ and must be resentenced.

Was the sentence given to the applicant reasonably open, having regard to the sentences given to Ms Holland and Fonua?

1. The applicant contended that there was no reasonable basis for the judge to distinguish between himself and Ms Holland.  In careful submissions, counsel for the applicant submitted that the only substantial sentencing consideration in favour of Ms Holland’s lesser sentence was the timing of her guilty plea before committal.  Other considerations tended to balance the sentencing mix in favour of the applicant.

1. Counsel for the applicant submitted that, in contrast, the applicant’s borderline to impaired range of intellectual functioning and documented deficits in cognitive functioning, as found by the judge,[10] should have reduced the applicant’s moral culpability for his offending.  Further, the applicant’s diagnosis of major depression also warranted differentiation of his sentence.  

   [10]Reasons [91].

Analysis

1. The sentencing judge was obviously alive to issues of parity,[11] and dealt with the issues in detail. The judge discussed and took into account similarities and differences in the involvement of each of the offenders, their personal backgrounds, the application of the sentencing purposes in each case, and the time which had already been served by each of the offenders.

   [11]Ibid [15].

1. The sentencing judge noted that it was Ms Holland who had initiated the assault and deadlocked the front door, and thus prevented Kearney from leaving.  The judge, however, accepted Ms Holland’s submissions that her role ‘dropped away’ in the latter part of the offending.  This finding was reasonably open to her Honour — the judge found that ‘the increasing seriousness’ of the offending could be attributed to the applicant’s actions involving the gun and the blow torch, and to Fonua’s actions.[12]  

   [12]Bronwyn Holland Reasons [37]; see also Reasons [50].

1. By contrast, the judge found that the applicant’s role in the offending was roughly the same as that of Fonua, because the applicant had ‘participated in the perpetration of significant violence against the victim and also prolonged the period of time during which the victim was prevented from leaving the home.’[13]  Again, we consider this finding was reasonably open to her Honour.

   [13]Reasons [94].

1. In her reasons for sentencing Ms Holland, the judge noted her lengthy criminal history, including for offences of violence against persons and dishonesty offending.[14]  Similarly, the judge had regard to the criminal records of Fonua and the applicant.  Fonua’s criminal history included dishonesty offences, offences of violence against a person and some firearms offences.[15]  The applicant’s criminal history included many crimes of violence against a person.[16]  There was little in the extensive criminal histories to distinguish between the applicant and his co-offenders.

   [14]Bronwyn Holland Reasons [4].

   [15]Reasons [6].

   [16]Ibid [7].

1. While there was no express reliance on Verdins[17] principles by Ms Holland,[18] the judge accepted that she had ‘a very traumatic childhood’ and had suffered ‘profound childhood deprivation’, including becoming her mother’s carer at a young age.  The effects of this childhood deprivation would not diminish over time,[19] consistent with Bugmy[20] principles.  The judge was ‘only cautiously optimistic’ about Ms Holland’s prospects for rehabilitation.   This finding was clearly open to her Honour.

   [17]R v Verdins (2007) 16 VR 269 (‘Verdins’).

   [18]Bronwyn Holland Reasons [40].

   [19]Ibid [49].

   [20]Bugmy v The Queen (2013) 249 CLR 571.

1. The judge found that Verdins principles did not apply to Fonua’s offending, but took into account Fonua’s ‘dysfunctional and disrupted childhood’.[21]  Her Honour was ‘somewhat guarded’ about Fonua’s rehabilitation prospects.[22]

   [21]Reasons [69]–[70]

   [22]Ibid [70].

1. The judge noted the applicant’s personal history and troubled childhood, and discussed in detail two psychological assessments which were put before the Court.[23] Her Honour accepted evidence of the applicant’s impairments in intellectual and cognitive functioning, as well as his symptoms of attention deficit hyperactivity disorder and depression,[24] and stated that she had therefore ‘moderated the need for general deterrence and specific deterrence to a very modest degree’ in sentencing the applicant.[25]  Due to the length of time over which the offending was conducted, however, her Honour considered that the applicant ‘would have known what [he was] doing was wrong’, particularly given the applicant’s ‘very deliberate behaviour’ during the offending.[26]  This finding was open to her Honour on the facts. 

   [23]Ibid [79]–[88].

   [24]Ibid [79].

   [25]Ibid [91].

   [26]Ibid [92].

1. Both the applicant and Fonua were subject to Community Correction Orders at the time of the offending, and the judge noted this as an aggravating feature.[27]  This feature was not present in Ms Holland’s case.  These findings were clearly open to her Honour.

   [27]Ibid [8].

1. The judge noted that Ms Holland had entered a guilty plea at an early stage, and was satisfied that Ms Holland’s guilty plea was evidence of remorse.[28] 

   [28]Ibid [39].

Conclusions

1. We are not satisfied that the ground of appeal is reasonably arguable.  Despite the fact that Ms Holland pleaded guilty to a different and more serious assault type offence than did the applicant and Fonua, in our view, her overall participation in the offending was slightly less objectively culpable.  When her remorse and earlier plea are added into the mix, the modest disparity between her sentence and that of the applicant is readily explained.  The fact that her offending occurred while she was not the subject of any court-imposed supervision is also a distinguishing factor between her circumstances and those of the applicant.

1. Similarly, we consider the parity between Fonua and the applicant was reasonably open to her Honour.  Both had dysfunctional upbringings and significant criminal histories.  Their criminal culpability was approximately on a par.  Whilst the applicant was entitled to some modest benefit as a consequence of his cognitive deficits, Fonua suffered from cardiac and thyroid conditions, and had a history of mental illness.  The authorities to which we have referred emphasise that sentencing is a discretionary exercise, and no justifiable grievance can arise where the disparity is not ‘marked’ or ‘manifest’. 

1. In our view, there were relevant similarities and distinctions between each of the co-offenders, and her Honour carefully engaged with them.  The judge’s findings were reasonably open and we agree with them.

1. The proposed ground of appeal is not reasonably arguable.  Leave to appeal is refused. 

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