Buddle v The Queen
[2014] VSCA 232
•26 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0119
| MARK BUDDLE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NEAVE and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 September 2014 |
| DATE OF JUDGMENT: | 26 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 232 |
| JUDGMENT APPEALED FROM: | R v Buddle (Unreported, County Court of Victoria, Judge Lewitan, 16 May 2014) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Sentence of 15 months’ imprisonment with nine month non-parole for affray, common assault and intentionally causing injury – Orders for partial cumulation – Whether double punishment – Presentence detention interstate on unrelated matters – Whether Renzella discretion applies – Whether totality principle applies – Application refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC | Zahr and Zahr Lawyers |
| For the Crown | Mr J B B Lewis | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
PRIEST JA:
Introduction
On 6 November 2013, the applicant pleaded guilty in the County Court to one charge of affray (charge 1), two charges of common assault[1] (charges 2 and 3), and one charge of intentionally causing injury (charge 6).[2]
[1]Affray and common assault are both offences at common. The maximum penalty for each is five years’ imprisonment: Crimes Act 1958, s 320.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
A little over six months later, on 16 May 2014, he was sentenced to be imprisoned for nine months on the charge of affray, for eight months on each charge of common assault, and for 12 months on the charge of intentionally causing injury. One month of the sentences on charges 1, 2 and 3 were ordered to be served cumulatively with each other and with the sentence on charge 6, thereby producing a total effective sentence of 15 months’ imprisonment, upon which a non-parole period of nine months was fixed.
Leave to appeal against sentence is sought on two grounds:
1. The learned sentencing judge erred in ordering that there be accumulation of part of the sentences for the two common law assaults and the sentence for affray upon the sentence for intentionally cause injury.
2. The learned sentencing judge erred in failing to take into account two periods of pre-sentence detention which should have been taken into account pursuant to the inherent jurisdiction of the court at common law.
For the reasons that follow, we would refuse leave.
The offending
In the early hours of Sunday 18 December 2011, a group of workmates — Jeremy Dawson, Lewis Ake, Nore Elgammal and Harry Stamatiadis — were, following a work Christmas function, socialising at licensed premises, the Spearmint Rhino Gentleman’s Club, located in King Street, Melbourne.
The applicant and several companions — Ali Bazzi, David Gavelan, Justin Clark and Samson Bazi — were also at the venue.
At about 2:45am, the applicant, in the company of Clark, had an argument with Stamatiadis in the vicinity of one of the bars. Dawson and Ake tried to calm the situation. The applicant shook hands with Ake, and then walked away with Clark. Having taken a few steps, the applicant returned, leaned around Dawson and punched Stamatiadis to the head (charge 2 — common assault).
Dawson and Ake then intervened and stood between the applicant and Stamatiadis. The applicant then punched Ake (charge 3 — common assault). Dawson became involved. Clark put Dawson in a headlock and pulled him to the other end of the bar, eventually ending up on the ground.
The applicant and Ake threw punches at each other along the bar. Stamatiadis and Elgammal attempted to assist Ake and Dawson. Bazi then approached them with his fists raised in a fighting stance. Dawson and Ake returned to where their friends, Elgammal and Stamatiadis, were standing. Bazi then came from Ake’s right and hit him to the head. Ake was forced backwards. Bazi then punched Elgammal to the head, knocking him unconscious.
Clark, Gavelan and Bazzi moved down the bar towards Elgammal, Stamatiadis, Ake and Dawson. Bazi threw another punch at Ake’s head, which Dawson tried to shield.
The applicant, who had removed his shirt, returned. He, with Clark, Gavelan, Bazzi and Bazi, surrounded a male — either Ake or Dawson — who was on the floor. Elgammal regained consciousness and got up. Clark, Gavelan, Bazzi and Bazi assaulted the male on the floor by kicking, punching and stomping on him. Ake then managed to run to the toilets.
Gavelan, Bazzi and Bazi then followed Clark and Ake, while the applicant stood over Dawson and stomped on his upper body area (charge 6 — intentionally causing injury). Bazi returned and also kicked Dawson to the upper body area. The applicant, Bazzi and Bazi, then walked towards the exit.
Clark and Gavelan walked back past Dawson who was still on the floor unconscious. Gavelan walked to a ledge, grabbed a bottle and returned to where Dawson was lying. Someone was heard to say, ‘Is he still breathing?’. Gavelan then struck Dawson to the head with the bottle and stomped on his torso. Clark and Gavelan then left the premises.
All of the offenders caught a taxi to flee the scene.
At the time of the fighting the venue was full of staff and patrons who were put in fear (charge 1 — affray).
The incident was captured on CCTV footage inside the venue. (Other footage was also obtained from the ‘safe city’ cameras, the Hilton Hotel and from the taxi caught by the offenders.) The entire incident occurred in a period a little over two minutes, from the time of the applicant’s first punch, to the time of Gavelan’s stomping on the hapless Dawson.
Three of Dawson’s front teeth were damaged, two being knocked out and one shattered. He also superficial bruises of the right eye, tender swollen right cheek, and had lost consciousness. Stamatiadis suffered a swollen left cheek.
Ground 1 — Orders for cumulation
It was submitted under cover of ground 1 that the orders cumulating three months of the sentences on charges 1, 2 and 3 with the sentence on charge 6 offended the principles in Pearce.[3] The effect of the orders for cumulation, so it was submitted, was to doubly punish the applicant for the factual, circumstantial and legal elements that were common to the four offences.
[3]Pearce v The Queen (1998) 194 CLR 610.
To try and make good these arguments, in written submissions counsel relied on Ly,[4] Lacey[5] and King.[6] In our view, however, the sentencing judge’s approach in the present matter to the individual sentences, and the orders for cumulation, is entirely consistent with what was said in those cases. Thus in Ly, Coldrey AJA (with whom Vincent JA and Smith AJA agreed) observed:[7]
Although the specific legal elements differ between affray and intentionally causing serious injury there is the common factor of unlawful fighting or unlawful violence in the context of a case such as the present one. The substantive acts of unlawful violence which attract the penalty for intentionally causing serious injury constitute a large measure of the acts of unlawful violence creating the terror which is the essence of the offence of affray. Whilst the distinguishing features of the two offences provide a warrant for some cumulation it must be necessarily be limited and care must be taken to avoid double punishment. …
[4]R v Ly [2004] VSCA 45 (‘Ly’).
[5]R v Lacey [2006] VSCA 4.
[6]R v King; R v Ngyoune [2007] VSCA 263 (‘King’).
[7]Ly, [30] (emphasis added).
When a judge is called upon to sentence for multiple offences, the approach that he or she adopts to concurrency or cumulation between individual sentences must be dictated by the particular facts of the case confronting the judge. The judge is required to impose appropriate and proportionate sentences on individual charges, whilst at the same time fashioning orders as to concurrency or cumulation so as not to infringe the principle of totality.[8] Thus, on occasions, because of sentences already imposed, a sentencing judge may refrain from directing much in the way of further cumulation, so as to avoid imposing a crushing sentence or infringing totality. There will also be cases where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction. In such cases, total or substantial concurrency may be called for. What is necessary in every case is a sound discretionary judgment as to whether there should be cumulation between sentences, and, if so, whether the cumulation should relate to some or all of the charges, and whether it should be in whole or in part.[9]
[8]DPP v Grabovac [1998] 1 VR 664, 680–1; R v Lomax [1998] 1 VR 551, 563–4.
[9]R v O’Rourke [1997] 1 VR 246, 253.
The essence of affray is unlawful violence which creates terror in bystanders.[10] In the present case, the affray involved the applicant and his companions perpetrating violence on the other men, causing alarm to a significant number of persons present in the venue. Part of the overall violence involved the applicant in discrete (but connected) attacks on three individuals, one of whom suffered loss of three teeth. The attacks on the three individual victims required distinct recognition in the sentences imposed. In our opinion, the cumulation of one month each of the sentences on the charge of affray and two charges of common assault, upon the sentence for intentionally causing injury, is extremely moderate. We can detect no error in what the judge did.
[10]King [21]–[24].
Ground 1 is without substance.
Ground 2 — Failure to take into account pre-sentence detention
Chronology
In order to understand ground 2, it is necessary to say something about the applicant’s period of detention for the instant offences and other periods of detention that he has undergone.
As we have observed, the relevant offences were committed on 18 December 2011. The applicant was charged on 11 January 2012, and was granted bail.
On 20 September 2012, the applicant committed several offences in Clovelly, New South Wales.
His bail for the present offences was revoked on 20 November 2012.
The applicant was taken into custody in Queensland on 10 December 2012 pursuant to a warrant relating to the Clovelly offences. In the course of his arrest in Queensland, the applicant threatened the arresting officers. (The relevance of this will later become apparent.)
On 29 April 2013, the applicant was sentenced on the Clovelly offences. The sentence was backdated to 10 December 2012 — the date of his arrest in Queensland on the New South Wales warrant — so that he was eligible for immediate release on parole. Upon his release he was taken into custody on a Victorian warrant and extradited.
He was brought before a Victorian court on 3 May 2013, and again granted bail on the current offences.
The applicant’s New South Wales parole was revoked on 2 August 2013, and he was taken into custody in that State.
On 10 October 2013, the Chief Judge of the County Court revoked the applicant’s bail with respect to the instant offences.
The applicant appeared before the sentencing judge on 6 November 2013 for what was anticipated to have been a plea hearing for him and three co-accused, Bazi, Bazzi and Gavelan. His counsel sought an adjournment of the plea until after the applicant was released from custody in New South Wales (which was to occur on 2 January 2014, following the expiration of his parole sentence).
On 17 December 2013, the sentencing judge imposed sentence on the co-offenders Bazi, Bazzi and Gavelan.
Another judge of the County Court granted the applicant bail on 31 December 2013. There was no condition requiring the applicant to remain in Victoria. (The applicant had told the Court of his intention to travel to Queensland for a period of a week with his family in the time between his release in New South Wales and his return to Victoria to be sentenced for the current offences.)
On 2 January 2014, the applicant’s New South Wales parole sentence expired, and he was released the next day, 3 January 2014.
Upon his arrival in Queensland on 6 January 2014, the applicant was arrested on a warrant arising from the threats the applicant had made when arrested on 10 December 2012. The existence of this warrant had not been referred to when the applicant was sentenced in New South Wales, or during proceedings in Victoria.
The applicant was released from custody in Queensland on 28 February 2014.
On 3 March 2014, the applicant presented himself to the County Court at Melbourne. He was granted bail until his plea hearing, fixed for 2 May 2014.
The applicant’s plea hearing proceeded on 2 May 2014. Counsel informed the sentencing judge that, as at that date, the applicant had spent 339 days in custody in relation to both the Clovelly and Queensland offending.
Discussion
In reliance upon Renzella,[11] the applicant submitted that his sentence should be reduced by a period that broadly reflects the 220 days that he spent in detention; being detention which, so it was submitted, ‘attracts the inherent jurisdiction of the court’. In the applicant’s written case it was argued that, while the judge’s sentencing remarks are redolent of the language in Mill[12] when describing the totality principle, the correct approach was for the judge to apply the Renzella discretion independently of the principle of totality. The judge’s failure to reduce the sentence by a period that broadly approximated 220 days constituted sentencing error, which was not remedied by the judge’s recourse to totality. We should also note that, although it was submitted in the applicant’s written case that totality should have been applied ‘additionally and independently, as a final consideration in the sentencing exercise’, and that both the Renzella discretion and the principle of totality should be applied, counsel did not maintain those submissions on the hearing of the application.[13]
[11]R v Renzella [1997] 2 VR 88 (‘Renzella’). Counsel also relied on Wheldon v The Queen (2011) 31 VR 297.
[12]Mill v The Queen (1988) 166 CLR 59, 63.
[13]Counsel who appeared on the hearing of the application was not counsel who prepared the written case.
We find the applicant’s submissions unpersuasive.
There is no doubt that s 18 of the Sentencing Act 1991 does not apply to the present situation, so that if the applicant’s detention for unrelated matters is to be taken into account in reduction of the present sentences, that must be because of the operation of common law principles. In El Waly,[14] the Court (Neave and Weinberg JJA, and Bell AJA) observed:[15]
[14]El Waly v The Queen [2012] VSCA 184 (‘El Waly’).
[15]Ibid [111]–[112].
The relationship between s 18 of the Sentencing Act 1991 and the principles in Renzella can be summarised as follows:
(a) Section 18 permits the period during which an offender is on remand for more than one set of offences at the same time to be declared as presentence detention when the offender is first sentenced. Although the period spent in remand must relate to the offences for which the offender is being sentenced, it is not necessary, as was previously the case, that the period relate only to those offences.[16]
(b) If an offender is detained on remand for one offence, while serving a sentence for another, s 18 does not apply to the period during which the offender was on remand.[17]
(c) The Renzella discretion permits a sentencing judge to take account of a period which the offender spent in custody which is unrelated to the offence for which the offender is currently being sentenced, even if that period is not covered by s 18.
(d) The Renzella discretion was originally exercised in circumstances where, with hindsight, the offender should not have spent a period in custody for earlier alleged offences, because he or she has been acquitted of those offences, had the charges withdrawn, or the Crown has entered a nolle prosequi (a period often described as ‘dead time’).[18] As noted in Karpinski,[19] the discretion has even been exercised in cases where the period on remand which the offender should not have served arose out of conduct unrelated to the offences for which the offender falls to be sentenced and occurred some time in the distant past.
(e) Where Renzella applies the court may take account of the whole period during which the offender was in custody, or some lesser period.
We would have thought that this case, where the appellant was on remand for the current offences, while at the same time serving a term of imprisonment for another offence which cannot be claimed as presentence detention under s 18, raises an issue of totality, rather than calling for the application of Renzella.[20] We note however, that in Wheldon v R[21] the Crown conceded that such a period should be treated as Renzella time. In Wheldon, the court accepted that concession.
[16]Karpinski v The Queen [2011] VSCA 94, [36] (Tate JA) (‘Karpinski’).
[17]R v Broad [1999] 3 VR 31, 36 [11] (Brooking JA).
[18]Warwick v The Queen [2010] VSCA 166.
[19]At [5]–[7] (Weinberg JA); [60]–[62] (Tate JA).
[20]Cf Karpinski [2011] VSCA 94, [70]–[75].
[21](2011) 31 VR 297 (‘Wheldon’).
In the present case, the applicant’s detention in New South Wales and Queensland was for matters unrelated to the instant offences. The judge did, however, take it into account in fixing sentence. In her reasons for sentence, the judge said:
I accept your counsel’s submission that I must take into account the 339 days you have spent in custody in New South Wales and Queensland after you committed these offences. I have taken into account the period of time which you have spent in custody in New South Wales and Queensland, in accordance with the principles of totality and the need to impose a just and appropriate sentence.
To our mind, it does not much matter what label one affixes to her Honour’s consideration of the detention which preceded the sentence for the current offences (whether it be the exercise of the Renzella discretion, or the application of the totality principle). The fact remains that, in a broad and practical way, the judge took the period of pre-sentence detention (so called) into account.
For the entirety of the two periods that make up the 220 days relied upon by the applicant, he was undergoing sentence in New South Wales for unrelated matters.[22] None of that period was in any way ‘dead time’. Notwithstanding that this is so, the applicant seeks to have the present sentence notionally reduced by a period that bears a relationship to that 220 days. The nett effect would thus seem to be — as counsel for the respondent submitted — that the New South Wales sentence would become entirely subsumed within the present sentence.
[22]During the first of the two periods the applicant was being held in remand. Pursuant to s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) his sentence was subsequently backdated to cover that period.
At the hearing of the application, counsel for the applicant submitted that, although the judge said that she had taken the prior custody in New South Wales and Queensland into account, she could not have done so. He endeavoured to demonstrate that this was so by drawing attention to the fact that, although the judge found the applicant’s culpability to approximate Bazi’s, that finding was not reflected in the sentence imposed upon the applicant. Bazi received the same total effective sentence as the applicant (15 months’ imprisonment), 10 months of the sentence being ordered to be served cumulatively on the sentence then being undergone. Had the judge properly factored into account the applicant’s detention in New South Wales and Queensland, so it was argued, his sentence necessarily would have been more moderate than Bazi’s. There is some superficial and seductive attraction in these submissions, but they cannot be accepted.
In her reasons for sentence, the judge said:[23]
In my view your culpability appears to be approximately equal to that of Samson Bazi. You struck the first blow and precipitated the assault. Samson Bazi knocked a man unconscious. There is a period of time when you were seen to be leaving. You then returned to the fray after removing your shirt and kicked Mr Dawson to his upper body when he was lying unconscious on the ground. In considering the principles of parity, I also take into account the fact that your criminal history is more extensive than that of your co-offenders. Gavelan had no prior convictions. Samson Bazi had one prior conviction for possession of prescribed restricted substance and one conviction for assault occasioning bodily harm, for which he was sentenced to pay a fine of $500. Ali Bazzi had one conviction for supplying a prohibited drug on 14 May 2004.
[23]Emphasis added.
The judge also observed:[24]
You have admitted before me to prior convictions. There are 11 such convictions, involving nine court appearances between November 2003 and 28 June 2010. Your counsel submitted that the previous offences were ‘juvenile offences’. However you were convicted of two charges of assault on 24 July 2009, when you were almost 25-years-old, and affray on 28 June 2010, when you were almost 26-years-old. The prior convictions of assault and affray are highly relevant to my task of sentencing you today.
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I am bound and do take into account parity of sentence with your co-offenders. Each of the co-offenders was sentenced for affray and other offences arising out of the same incident. However the backgrounds, antecedents and the roles of each of them are different. I must balance all of these matters in coming to a just sentence for you individually, whilst applying the principles of parity.
[24]Emphasis added.
Thus, despite their culpability for the offending being roughly equivalent, the fact that both the applicant and Bazi received the same total effective sentence (and that 10 months of Bazi’s sentence was ordered to be served cumulatively) is entirely explicable on the basis of their differing personal circumstances. In other words, although the applicant’s prior convictions would ordinarily — all other things being equal — have been reflected in a more severe sentence being passed on the applicant than on Bazi, the applicant’s prior detention served to moderate the sentence that otherwise would have been appropriate.
We add this. Although it might not be entirely clear whether time spent undergoing sentence for an unrelated matter (in which period the Victorian bail was revoked for these matters) should be dealt with pursuant to the Renzella discretion or pursuant to the principle of totality,[25] we incline to the view that the principle of totality is apposite.[26] Lying at the root of the Renzella discretion and the totality principle is fairness — the need to impose a sentence that is just and appropriate.
[25]Wheldon v The Queen (2011) 31 VR 297.
[26]El Waly v The Queen [2012] VSCA 184, [111].
As we have said, in a broad and practical way the judge took into account the periods of unrelated detention so as to arrive at a sentence which was just and appropriate. We can detect no error in the sentencing judge’s approach.
Ground 2 cannot be upheld.
Conclusion
The application for leave to appeal should be refused.
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