C A v The Queen
[2012] VSCA 199
•10 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0067
| C A | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P and MANDIE JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 August 2012 | |
DATE OF JUDGMENT: | 10 August 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 199 | |
JUDGMENT APPEALED FROM | DPP v [C A] (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012) | |
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CRIMINAL LAW – Appeal – Sentence – Recklessly cause serious injury, armed robbery, false imprisonment, threat to kill – Total effective sentence 5y 9m, non-parole period 3y 9m – Offences committed on parole – Parole cancelled – Full parole sentence served – Totality – Whether judge took into account service of parole sentence – Whether sentence manifestly excessive – R v Renzella [1997] 2 VR 88 distinguished, DPP v Dickson [2011] VSCA 222 applied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gurvich | Ms Melinda Walker |
| For the Respondent | Mr P Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
MANDIE JA:
Following a trial in the County Court, the applicant was convicted on 27 February 2011 of one count each of recklessly causing serious injury, armed robbery, unlawful imprisonment and making a threat to kill. The applicant was sentenced as set out in the following table:
Charge on Indictment Offence Maximum Sentence Cumulation 2 Recklessly cause serious injury 15y 3y 9m Base 3 Armed robbery 25y 1y 6m 6m 4 False imprisonment 10y 1y 10m 9m 5 Making a threat to kill 10y 1y 10m 9m Total Effective Sentence: 5y 9m Non-Parole Period: 3y 9m Pre-sentence Detention Declared: 278 days
In the early hours of 27 September 2009, the victim of these offences attempted to gain entry to the Dallas Nightclub. The applicant was performing security duties at that club and had been in the early stages of joining the Hells Angels Nomads club. The victim falsely claimed he was a member of the Hells Angels in Germany, following which he was granted entry to the nightclub.
Shortly afterwards, because the applicant and others suspected that the victim was not in fact a Hells Angels member, the victim was taken in his car to the Hells Angels clubhouse. The applicant, who travelled to the clubhouse in a separate car, agreed that the victim would be kept at the clubhouse and ‘dealt with’. Others arrived at the clubhouse, including a man referred to as ‘the old man’ who soon produced a baseball bat and hit the victim on the head, causing him to fall on the ground, where he struck him with further blows.
The applicant then told the victim to get up and pushed the end of a short wooden pole into his mouth, loosening one of his teeth. The applicant then kicked the victim in his chest, knocking him down. The ‘old man’ then robbed the victim at knife point of his wallet and phone. The victim was told that, if he went to the police, his family would be killed. After further threats about the victim’s family being killed in case he went to the police, the applicant and others took the victim to his own car and told him to drive from the club. Throughout the trip, the victim was told not to look back and that, if he went to the police, his family would be killed. The victim was told to stop on a highway, where the applicant and the others left the victim’s car and drove off in a different vehicle.
The victim’s injuries included a fractured leg, significant lacerations to his scalp and face, facial fractures and bleeding on his brain, a loose tooth, a black eye and bruising.
Grounds of appeal
The applicant sought leave to appeal against his sentence on the following two grounds:
Ground 1: The sentencing discretion miscarried in that the learned sentencing judge failed to adequately take into account the applicant’s time in custody which had been doubly warranted.
Ground 2:The individual sentences, total effective sentence and the non-parole period are manifestly excessive.
On 20 June 2012, Redlich JA refused the application for leave. Under s 315(2) of the Criminal Procedure Act 2009 (Vic), the applicant has elected to renew his application before a Bench of two, as he was entitled to do.
Counsel for the applicant has put clear and cogent arguments in support of the grounds. We are not, however, persuaded that either of them is reasonably arguable and we would refuse leave. Our reasons are as follows.
Ground 1
The applicant committed these offences while he was on parole. That was, naturally, an aggravating factor in its own right. He was taken into custody on 28 September 2009. On 21 October 2009 the Parole Board determined that he had breached his parole conditions, that his parole would be cancelled and that he would be required to serve the balance of the sentence for the prior offending (‘parole sentence’). He served the entire balance of the parole sentence – one year, seven months and 29 days – and was then on remand for the offences the subject of this appeal. The period spent on remand was properly counted as pre-sentence detention. The period of remand was from 19 June 2011 until the date of sentencing on 27 February 2012.
The submission for the applicant is that the judge failed to adequately take into account his time spent in custody serving the parole sentence. It has been contended that the applicant was entitled to a much fuller explanation in the sentencing reasons of how the time served under the parole sentence was brought to account in the determination of the sentence for these offences. According to this argument, the applicant did not receive the assurance he was entitled to that proper account had been taken of the parole sentence period. The applicant submitted that, if the sentencing judge had reduced the sentence to take into account that period or part of it, he was expected, in accordance with Cook v The Queen[1] and R v Renzella,[2] to make ‘some reference’ to it in his sentencing remarks. It was also submitted that, when the sentence imposed was examined, it could not be seen to reflect the proper taking into account of the parole sentence.
[1][2011] VSCA 187 (‘Cook’), [15].
[2][1997] 2 VR 88 (‘Renzella’).
The submission for the Crown was as follows. Far from the judge having failed to take into account the service of the parole sentence, it was abundantly clear from the plea transcript, and from the sentencing reasons, that the judge had been alive to the service of the parole sentence. It was clear, moreover, that the judge had actively sought assistance from counsel in order to identify the proper basis on which to take that matter into account, in accordance with the authorities. It was the judge, as it seems to us, who specifically raised with counsel on the plea that the time should be taken into account under the Renzella doctrine.
In the sentencing reasons, the judge dealt with the matter in these terms:
I have taken into account that you have been in custody since the day after this offending and that you have another matter that you confront and have been remanded in custody for that. Taking into account that period of time only 254 days [later corrected to 278 days] can be lawfully declared. That is because your parole was breached while you were in custody. I was told your parole was breached because you could not comply with it while you were in custody.[3]
[3]DPP v [C A] (Unreported, County Court of Victoria, Judge Mullaly, 27 February 2012), [61] (‘Reasons’).
It is clear, in our view, that when the judge said, 'I have taken into account' the service of the parole sentence, he meant what he said. In other words, he had brought that period of custody to account in the determination of the appropriate sentence to be imposed for the subject offending. His Honour was quite correct to point out that the parole sentence could not be taken into account as pre-sentence detention. Doubtless that is why he made a point of saying that he had nevertheless taken it into account in sentencing.
Several short points should be made. First, the service of the parole sentence was the service of a sentence lawfully imposed for the prior offending. It was therefore not pre-sentence detention to which the original – and very confined – Renzella discretion might have applied.[4] Nor was it in any meaningful sense ‘dead time’, to which the expanded Renzella discretion could have applied.[5]
[4] R v Broad [1999] 3 VR 31; cf, R v Wade [2005] VSCA 276.
[5]See Warwick v The Queen [2010] VSCA 166; Karpinski v The Queen [2011] VSCA 94.
Secondly – and conscious of the slightly different view expressed in Cook – we think that on a proper analysis this was not a Renzella question at all. Rather, we think that the circumstances of the case attracted the now well-established principles, explained in cases such as R v Hunter,[6] R v Piacentino[7] and DPP v Dickson,[8] about sentencing for offences committed on parole, which result in parole cancellation and the (anticipated) service of a parole sentence. Senior counsel for the Crown agreed that this was so.
[6](2006) 14 VR 336.
[7](2007) 15 VR 501.
[8][2011] VSCA 222, [11].
The applicable principles were summarised in DPP v Dickson, as follows:
(a) The prohibition on speculation
Parole having been cancelled on account of the later offences, the court in sentencing the offender for those offences must assume – when applying the principle of totality – that the offender will be required to serve the full parole sentence. This is because s 5(2AA)(a) imposes an absolute prohibition on the court speculating on action which the Parole Board might in the future take. Specifically, the court must ignore altogether the possibility that the Parole Board will decide to re-release the offender on parole before the full parole sentence has been served.
(b) The presumption of cumulation (s 16(3B))
By force of statute, the sentence imposed for the later offences must be served cumulatively on the parole sentence, unless otherwise directed by the court because of the existence of exceptional circumstances.
(c) The principle of totality
In fixing the sentence for the later offences, the court must take into account that the parole sentence will be served cumulatively. Viewed as a whole, the aggregate of sentences imposed by reason of cumulation cannot be greater than is warranted by the totality of the criminality represented by both the later offences and the original offences.[9]
(d) Parole breach as an aggravating factor
On ordinary principles, the fact that the later offences were committed while the offender was on parole aggravates the seriousness of those offences.[10]
[9]Hunter (2006) 14 VR 336, 341 [30].
[10]DPP v BGJ (2007) 171 A Crim R 74, 78 [14].
In the present case, the prohibition on speculation did not apply. That is, there was no need for the judge to assume that the full parole sentence would be served, as that had already occurred. But the sentencing analysis itself was exactly the same. That is, the judge had to take into account the fact that the parole sentence had been fully served and had to ensure that the sentence which he imposed did not breach the principle of totality. While it is correct that the judge did not refer expressly to totality, we have no doubt that his Honour was mindful of the need to ensure that he did not impose a sentence for these offences which, when taken together with the parole sentence already served, breached the principle of totality. That seems to us to be the entire explanation for his Honour's concern to be given assistance during the plea about how the parole sentence should be dealt with.
As appears from the extract set out above, his Honour expressly took into account the fact that the applicant had served the full parole sentence and noted that it could not be declared as pre-sentence detention. There was no specific error, in our view, of the kind identified in Ground 1. We do not consider that ground to be reasonably arguable, it being so clear that the judge did fully take into account the parole sentence.
We turn then to Ground 2.
Ground 2
Under this ground the applicant argued that the individual sentences, total effective sentence and non‑parole period were manifestly excessive. He relies on the service of the parole sentence in order to say that the sentence as imposed offended the principle of totality.
As well as arguing that the sentencing judge gave insufficient consideration to the fact that the applicant had been required to serve the parole sentence, the applicant relied on various mitigating factors. Those factors included the applicant’s subordinate role in the offending, the judge's acceptance that the applicant’s intellectual functioning was significantly compromised and the consequent moderation of the principles of specific and general deterrence and reduction of moral culpability. The applicant also relied on the sentencing judge’s finding that specific deterrence should be moderated on account of the applicant’s depression and that his time in prison would be more onerous.
The Crown submitted that the sentencing judge adequately and carefully balanced all available mitigating factors against other relevant and important sentencing considerations and that the individual sentences, as well as the total effective sentence and non-parole period, were ‘wholly within the sentencing range’.
In our view, the ground of manifest excess is not reasonably arguable. As has been said repeatedly, that is a very difficult ground to establish because the appellant must show that the judge has gone so badly wrong in determining the sentence that the result arrived at is wholly outside the range of available sentencing options.
It is apparent from the sentencing reasons that the judge carefully and comprehensively considered the relevant mitigating factors. As counsel has acknowledged, there were moderate reductions for general and specific deterrence. It was accepted that moral culpability was reduced to a limited degree, owing to the applicant’s impairment of mental functioning due to depression.[11] His Honour also took into account that the applicant's conditions of incarceration were more severe than those of other prisoners.[12] These were all findings of fact which were open.[13]
[11]Reasons, [42]-[56].
[12]Ibid [59].
[13]Carroll v The Queen [2011] VSCA 150, [17]–[18].
On the other hand, his Honour recognised – correctly, in our view – how serious this offending conduct was[14] and that the applicant had a significant prior criminal history[15] which was relevant to specific deterrence. His Honour also took into account the fact that the applicant had contested the trial and had shown no insight which would give the Court confidence that he had put his offending behaviour behind him.[16] The sentencing judge regarded the applicant’s chances of rehabilitation as ‘uncertain’ but said that ‘[a]lthough parole has not been completely successful … in the past’, he would establish a period of potential parole.[17]
[14]Reasons, [28].
[15]Ibid [30].
[16]Ibid [41].
[17]Ibid [60].
Like Redlich JA, we do not regard it as reasonably arguable that the sentences imposed or the total effective sentence or non-parole period were outside the range reasonably open to the learned sentencing judge, proper consideration being given to all relevant factors. Leave to appeal must therefore be refused.
The order of the Court is: application refused.
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