Bulaale Muuse v The Queen

[2017] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 111

BULAALE MUUSE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	8 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 244
JUDGMENT APPEALED FROM:	DPP vMuuse (Unreported, County Court of Victoria, Judge McInerney, 4 May 2017)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Attempted armed robbery, attempted robbery and committing indictable offence while on bail – Total effective sentence of 3 years and 6 months’ imprisonment with non-parole period of 2 years – Manifest excess – Whether individual sentences, total effective sentence or non-parole period were manifestly excessive – Manifest excess not reasonably arguable – Parity – Whether sentence on charge of attempted robbery infringed parity principle – Parity complaint not reasonably arguable – No reasonable prospect that Court of Appeal would reduce total effective sentence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Patrick W Dwyer
For the Crown	No appearance	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA:

1. On 6 April 2017, the applicant pleaded guilty in the County Court to one charge of attempted armed robbery, one charge of attempted robbery and one charge of committing an indictable offence while on bail.  Following a plea hearing, on 4 May 2017, the applicant was sentenced as follows:

Charge	Offence	Maximum		Sentence	Cumulation
1.	Attempted armed robbery ss 75A & 321M Crimes Act 1958	20 years ss 75A & 321P  Crimes Act 1958		3 years 6 months’ imprisonment	Base
2.	Attempted robbery ss 75(1) & 321M  Crimes Act 1958	10 years ss 75(2) & 321P Crimes Act 1958		10 months’ imprisonment	Concurrent
Summary offence	Commit indictable offence on bail s 30B Bail Act 1977	30 penalty units or 3 months’ imprisonment s 30B Bail Act 1977		1 month’s imprisonment	Concurrent
Total Effective Sentence:			3 years 6 months’ imprisonment
Non-Parole Period:			2 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			223 days
6AAA Statement: 5 years 6 months’ imprisonment, with a non-parole period of 3 years 6 months’ imprisonment.
Other relevant orders:  disposal order; forensic sample order

1. The applicant seeks leave to appeal against his sentence on the following grounds:

1.     (a)     the individual sentences imposed are manifestly excessive;

(b)     the total effective sentence of three years and six months’ imprisonment is manifestly excessive;  and

(c)the non-parole period of two years is manifestly excessive.

2.There is an unjustifiable disparity between the sentence imposed upon the applicant for the count of attempted robbery and the sentence imposed on his co-offender in the Melbourne Magistrates’ Court.

Circumstances of the offending

1. At 8:50 am on 23 September 2016, the complainant (a 20 year old student) was walking along A’Beckett Street, Melbourne towards RMIT University.  The complainant was playing on her phone.  When she looked up, the applicant was standing in front of her and would not let her pass.  The applicant said ‘Do you have any money?  Give me your money mother fucker’, and tried to grab her bag.  The complainant told the applicant that she did not have any money.  The applicant opened a shoulder bag, showed its contents to the complainant and stated, ‘Do you know what’s in there?’  The complainant observed the handle of a gun.  The complainant answered ‘No’ in response to the applicant’s question, and walked away from him.  The gun was an imitation firearm.  These events constituted charge 1 (attempted armed robbery).

1. The complainant crossed the road and walked into a supermarket.  She observed the applicant walking up and down past the supermarket.  The applicant called 000.  The applicant and a co-offender, Joshua Morrison, then entered the supermarket.  The applicant then approached the complainant, grabbed her and said words to the effect, ‘don’t run’.  Morrison then approached the complainant.  The applicant and Morrison grabbed the complainant’s bag from her.  The applicant took everything out of the bag and said, ‘You only have books, no money’.  The applicant then put the complainant’s items back in her bag and he and Morrison walked out of the supermarket.  As they were walking out of the supermarket, they said multiple times, ‘wrong person, wrong person’.  These events constituted charge 2 (attempted robbery).

1. At the time of committing these offences, the applicant was facing two separate charges for which he had been given bail on 17 August 2016 and 13 September 2016 (summary charge, commit indictable offence while on bail).

Applicant’s background

1. The applicant was born on 25 December 1992 in Somalia.  He was 23 years of age at the time of the offending, and 24 years of age at the time of sentencing. 

1. In 1996, the applicant came to Australia with his father.  The applicant was detained in the Villawood Detention Centre for some seven months before being issued a protection visa.

1. The applicant was educated until year 9.  At the time of his offending, he was self-employed as a plasterer, who had three employees at the time of his arrest.  The judge described the applicant as having been ‘successful in business’ and attributed this to the applicant having a relatively high IQ.[1]

   [1]DPP v Muuse [2017] VCC 515 [30] (‘Reasons’).

1. Prior to his offending, the applicant had a history of cannabis and methamphetamine use.  The applicant had a prior criminal history.  His prior offences included assault, affray, recklessly causing injury, handling stolen goods, theft, contravening a community correction order and drug matters.

The applicant’s co-offender

1. In respect of charge 2 (attempted robbery), as I have already observed, the applicant had a co-offender, Morrison.  Morrison pleaded guilty in the Magistrates’ Court and received a sentence of 85 days’ imprisonment (time served) for his part in the attempted robbery of the complainant.

1. By way of background, Morrison was of a similar age to the applicant, and also had prior convictions.  While Morrison’s prior convictions were less numerous than the applicant’s, they contained the more serious offence of armed robbery for which he had been given a sentence of detention in a youth justice centre in 2011.

1. In his record of interview, the applicant described the involvement of Morrison in the following terms:

Joshua, my mate, he has no idea what’s going on.  He just rocked up, he was coming to get me.  He arrived about five minutes before the police arrested us.

The judge’s reasons

1. In his reasons for sentence, the judge described the circumstances of the applicant’s offending,[2] before dealing with the applicant’s personal circumstances.[3]  The judge accepted the utilitarian benefit of the applicant’s plea and also that the plea demonstrated remorse.[4]

   [2]Reasons [8]–[16].

   [3]Ibid [18]–[19], [24]–[31].

   [4]Ibid [27].

1. The judge gave detailed consideration to the issue of parity, referring to it in a number of places in his reasons for sentence.[5]  The judge said that he regarded the sentence given to Morrison in the Magistrates’ Court as ‘derisory’.[6]  The judge speculated that the magistrate who sentenced Morrison must have made a determination that there was a marked difference in the roles of the applicant and Morrison.[7]  The judge concluded that it was not in the interests of justice ‘to totally effect the principle [of parity] in this case’[8] and that ‘the fundamental principle of justice must prevail in this case, [limiting] the role to be given to parity’.[9]

   [5]Ibid [20]–[21], [33]–[48].

   [6]Ibid [41].

   [7]Ibid.

   [8]Ibid [42].

   [9]Ibid [48].

1. The judge recorded the applicant’s submission that there should be a period of imprisonment coupled with a community correction order, and the prosecution’s response that it was not appropriate for such a sentence to be imposed.[10]  The judge concluded his reasons for sentence:

I have considered both submissions with concern and deliberation.  As I say, Mr Muuse is a man who has come from a limited education to establish himself with good qualifications, who is well employed, has a family here who has done well in Australia, and are prepared to support him.

Against that, however, is the serious nature of these offences. I have been at pains to talk about the serious nature of the first charge.  An attempted armed robbery, in the circumstances of this case, committed as it was, and given the ordeal that must have been incurred by the victim, which was then perpetrated to a lesser degree by the continuation of the circumstances which I detailed insofar as the attempted robbery, and the brazen nature of the action of Mr Muuse in committing both of those crimes, and taking into account his own background and the fact that he was on bail most recently for offences, lead me to the conclusion, especially given the recent limitations imposed by Parliament, that it would be an inappropriate punishment to pronounce a combined sentence.

I therefore reject the submission of [counsel for the applicant]. I do accept the submission of the prosecution, that a combined period of imprisonment with a community correction order is not the appropriate sentence taking into account all proper principles.[11] 

[10]Ibid [50]–[52].

[11]Ibid [53]–[55].

The applicant’s contentions

1. The applicant submitted that the individual sentences imposed on charges 1 and 2, the total effective sentence and the non-parole period were all manifestly excessive (ground 1).  In support of that submission, the applicant contended that the attempted armed robbery and attempted robberies were of brief duration, the complainant was not threatened and the imitation firearm was never brandished.

1. The applicant also relied upon all of the matters advanced during the plea hearing in mitigation, being his early plea of guilty, his background, his remorse and his relative youth.  The sentence imposed upon Morrison was also relied upon as a relevant matter said to disclose that the sentence was manifestly excessive.

1. The applicant submitted that sentencing statistics disclosed that the sentence imposed upon him was ‘abnormally high’.  In support of that submission, reference was made to sentencing statistics for the offences of attempted armed robbery between 2003 and 2007, and armed robbery between 2011 and 2015.  It was observed that the sentencing statistics for attempted armed robbery showed a custodial sentencing range of one month to six years and 11 months, and that the average  custodial sentence imposed for armed robbery as being between two and three years.

1. As to parity (ground 2), the applicant submitted that the judge erred in concluding that the sentence imposed on Morrison was wrong.  The applicant also contended that the judge erred in ‘not giving total effect to the principle of parity’.  It was submitted that the interests of justice required the judge to apply the principle of parity, and that in imposing a sentence three times longer than that imposed on Morrison, the judge breached the parity principle.

Analysis

1. While each of the offences was serious, the attempted armed robbery (charge 1) was particularly serious.  Contrary to the applicant’s submission, it is not to the point that the imitation firearm was never ‘brandished’.  As the judge observed in the plea hearing, the complainant was shown the gun and threatened with it.  Similarly, it is not to the point to say that the attempted armed robbery and the attempted robbery were each ‘brief in duration’.  The events constituting charge 1 and charge 2 had an element of persistence about them in that, having committed the attempted armed robbery, the applicant followed the complainant into the supermarket and then committed the attempted robbery. 

1. As to charge 3 (committing an indictable offence while on bail), the applicant’s offending against the complainant, while on bail granted to him a mere 10 days earlier (and while also on bail granted to him some five weeks before his offending against the complainant) underscores the seriousness of the offending that constituted that charge.

1. As has been said many times before, manifest excess is a difficult ground to make out.  It must be shown that something has gone obviously, plainly or badly wrong.  The sentence in question must be shown to be wholly outside the range of sentencing options available to the sentencing judge.[12]

   [12]Cf R v Abbott (2007) 170 A Crim R 306; Clarkson v The Queen (2011) 32 VR 361, 384; Ayol v The Queen [2014] VSCA 151 [30]; Ryan v The Queen [2016] VSCA 255 [41] (‘Ryan’).

1. In Ryan, Weinberg, Whelan and Priest JJA helpfully summarised the legal principles relating to the issue of parity as follows:

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.  Where the co-offender’s sentence is itself inappropriately low, parity cannot be relied upon so as to reduce a sentence under appeal to a point where it too is manifestly inadequate.[13] 

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

1. Immediately, it may be observed that the judge’s references, in his reasons for sentence, to not giving ‘total effect’ to the principle of parity were plainly an expression of the principle that parity cannot be relied upon to reduce a sentence under appeal to a point where the sentence would be manifestly inadequate.[14]  In so holding, the judge’s reasons conformed with Ryan and the authorities referred to therein.

   [14]Reasons [42]-[48].

1. In the present case, there is nothing in the applicant’s complaints about parity.  First, it is to be observed that Morrison’s involvement in the attempted robbery of the complainant was subordinate, and secondary, to the applicant’s role.  Secondly, it is to be observed that the sentence imposed upon the applicant for the attempted robbery was ordered to be served wholly concurrently with the sentence imposed for the offence of attempted armed robbery.  That is, the applicant will serve no additional time in custody for the attempted robbery, whereas Morrison (who did not have the benefit of a relevant order for cumulation for more serious offending) was required to serve 85 days in custody for his involvement in the attempted robbery.

1. Similarly, there is nothing in the applicant’s complaints of manifest excess.  Giving appropriate weight to all of the mitigatory matters relied upon by the applicant, it cannot be said that any of the sentences imposed, or the total effective sentence, or the non-parole period, were wholly outside the range of sentencing options available to the judge.  Further, there is nothing in the sentencing statistics relied upon by the applicant that supports the proposition that any of the sentences imposed, or the non-parole period, were manifestly excessive.

1. Moreover, and in any event, even if it could be said that there was some parity error made by the judge, there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence in this case.[15]  It is again to be observed that the sentence about which a parity complaint is made was ordered to be served wholly concurrently with the sentence for the offence about which there is no parity issue.  Even if that were not so, given the applicant’s greater involvement in the offending against the complainant, there would be no merit in the applicant’s parity complaint.  The total effective sentence and non-parole period in this case were, in all the circumstances, within range.

   [15]See s 280(1)(b) of the Criminal Procedure Act 2009.

Conclusion

1. The application for leave to appeal must be refused.

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