Carl Gordan Redenbach v The Queen
[2017] VSCA 2
•19 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0247
| CARL GORDAN REDENBACH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 January 2017 |
| DATE OF JUDGMENT: | 19 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 2 |
| JUDGMENT APPEALED FROM: | DPP v Redenbach (Unreported, County Court of Victoria, Judge Cannon, 10 June 2014) |
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CRIMINAL LAW – Sentence – Charges of trafficking in drug of dependence and various other related offences – Applicant sentenced to total effective sentence of two years and nine months’ imprisonment with non-parole period of 18 months – Applicant not informed that Adult Parole Board previously cancelled his parole for earlier offending – Sentence imposed without judge, prosecutor or defence counsel aware of fact of parole cancellation – Principle of totality – Whether fact of cancellation ‘fresh evidence’ – Sentencing discretion vitiated – Whether lesser sentence warranted – Appeal allowed – Resentenced to total effective sentence of 23 months’ imprisonment being effectively time served.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
KYROU JA:
On 5 June 2014, the applicant pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possession of a drug of dependence, two charges of possessing a machine to falsify documents, and two charges of handling stolen goods. He also pleaded guilty to various related summary offences. These were three charges of forging, and one charge of fraudulently altering a driver’s licence. A plea hearing was conducted on that day.
On 10 June 2014 the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation
1 Trafficking in a drug of dependence
[s.71AC of the Drugs,
Poisons and Controlled Substances Act 1981]15 years 2 years Base 2 Possessing a drug of dependence
[s.73 of the Drugs, Poisons and Controlled Substances Act 1981]5 Penalty Units $100 3 Possess thing to falsify
document
[s.83A(5C) of the Crimes Act 1958]5 years 1 year 3 months 4 Possess thing to falsify
document
[s.83A(5C) of the Crimes Act 1958]5 years 8 months 2 months
5 Handle stolen goods
[s.88 of the Crimes Act 1958]15 years 1 year 2 months
6 Handle stolen goods
[s.88 of the Crimes Act 1958]15 years 1 year 2 months Summary offences
6 Fraudulently alter a licence
[s.72 of the Road Safety Act 1986]10 penalty units
or 2 months imprisonment1 month
aggregate
termNil
Summary offences (cont)
7 Forging a licence
[s.72 of the Road Safety Act 1986]10 penalty units
or 2 months imprisonment1 month
aggregate
termNil 8 Forging a licence
[s.72 of the Road Safety Act 1986]10 penalty units
or 2 months imprisonment9 Forging a licence
[s.72 of the Road Safety Act 1986]10 penalty units
or 2 months imprisonmentTotal effective sentence 2 years 9 months Non-parole period 18 months Pre-sentence detention declared 150 days s 6AAA statement 4 years with a non-parole period of 3 years
Factual background
The circumstances surrounding the offending were set out in detail by the judge in her sentencing remarks. Her Honour said:
The summary of the prosecution opening was accepted by you through your counsel. I was told by the learned prosecutor that in May 2012 police became aware of you in the course of an operation targeting a number of individuals in respect of drug trafficking. On 24 May 2012 police executed a warrant at your home. You were not there at the time. However, another male was. In the garage, police found numerous items, including gas bottles, glassware and chemicals. However, after examination of these items, the only illegal substance found was GHB.[1]
In relation to Charge 1, a number of items seized were found to contain GHB, the total quantity being 4.6 litres. The basis for the one day of trafficking is that you were in possession of this for sale, for which there is some support in telephone intercept material. In terms of weight, I was told that this was well and truly over the two kilogram threshold for commercial quantity; in fact, it was double this. However, it was not alleged that you intended to traffic a commercial quantity of GHB or had knowledge of the concentration of drug in the mixture found, which explains the trafficking simpliciter charge. I do not sentence you on any other basis. I was told that items seized and subjected to testing were found to be incapable of manufacturing GHB or its derivatives. From this I understand that the GHB seized was taken from other items and was already fully formed.
In respect of Charge 2, police found 11.2 grams of cannabis in a tissue box in a bedside table in the master bedroom.
In relation to Charge 3, on the top shelf of the master bedroom was a card printing machine with a false driver's licence partially printed. The details on the front were there, but it was blank on the back. Fingerprints matching yours were found on that machine.
In relation to Charge 4 and Summary Charge 6, I was told that police found in the garage another card printer with numerous plastic cards in a cardboard box containing numerous fraudulent licences, including driver’s licences, handgun licences, heavy vehicle driving licences and boat operator licences. The basis for Charge 5 is that four false driver’s licences in the name of the same individual whose actual licence had been stolen in December 2011 were found in the master bedroom.
In relation to Charge 6, a passport and birth certificate in the name of a person who had had these items stolen in January 2011 were found in the garage. The basis for Summary Charges 7 through to 9 is that forged driver’s licences were found in the master bedroom, wardrobe or tallboy which were derived from details of three individuals, in one case from a licence which was said to have been stolen whilst that person was in Italy. All of these licences were alleged to have been forged by you and you have pleaded guilty to these charges.
The sole distributor of the printing machine which was found in the master bedroom wardrobe and which is the subject of Charge 3 found the machine to be in working order and in 2007 it retailed for $3495. I understand that this witness, who had been cross-examined at the committal hearing, had wanted to amend his police statement subsequently; however, I was not enlightened and am unable to speculate as to the nature of the amendments which were sought to be made. In any event, you have instructed your counsel and told police in the record of interview that as far as you were concerned this machine did not work. Perhaps the partially printed false driver’s licence was testament to this, but it also appears that the reason you knew it did not work is that you had tried to operate it, the partially printed false licence being the product of what was last attempted, it would seem.
You were arrested at your parents’ address, I was told, in Traralgon on 12 July 2012 and took part in a record of interview. You acknowledged that the address where all of the seized items were found was your home. You said that you and a male friend, who was the male present at the time of the police attendance, were living there as at 24 May 2012. You said that the various items in the garage belonged to three or four people who were in gaol and that they were being stored there. That the last time you had been to the garage was a couple of days before to get a pushbike.
You said that the items which were subsequently found to contain GHB were furniture cleaner or polish and came with an old Chinese table. That the printer, which is the subject of Charge 3, was not working and that you had already been charged with it, that you used the cards to gamble online. You said that the machine was taken and the courts disposed of it and it did not work. You said the licences were the ones that had been copied, but the machine could not make them so you would say that they had been left behind from the last thing, that the stolen identity documents were all left over when you were charged for all of those. You said that you were surprised that they were there as you thought police had taken them all. You said that the second printer, which is the subject of Charge 4, was bodgie, that you had never used it and it did not work. You said that the only one that worked was the one that police got when you were charged. These are the extracts from the record of interview which are relevant to the charges before me.[2]
[1]This drug is commonly known as ‘liquid ecstasy’.
[2]DPP v Redenbach (Unreported, County Court of Victoria, Judge Cannon, 10 June 2014), [3]–[11] (‘Sentencing Remarks’).
Proposed ground of appeal
There is only one proposed ground in support of the application for leave to appeal against sentence. It is in the following terms:
Fresh evidence should be received as to the cancellation of the applicant’s parole and a different and lower sentence imposed.
PARTICULARS
(a) On the 14th August 2013 the applicant’s parole was cancelled by the Adult Parole Board;
(b)The applicant was not informed of the cancellation of his parole by the Adult Parole Board;
(c) The sentencing hearing proceeded on the flawed assumption that the applicant’s parole had not been cancelled by the Adult Parole Board.
In order to make sense of this proposed ground, a few salient facts should be noted.
On 20 March 1990, the applicant together with two co-offenders, was presented in the Supreme Court at Melbourne on one count of murder and one count of armed robbery. On that day he pleaded guilty to the count of murder, and as a result, the Crown did not seek to lead evidence of the armed robbery. On 11 May 1990, the applicant was sentenced to 19 years’ imprisonment with a non-parole period of 15 years. The applicant was aged 23 at the time.
It seems that on 27 February 2002 the applicant was granted parole. However, for reasons that are not altogether apparent, he was not actually released on parole until 18 March 2005.
On 13 September 2006 the applicant’s parole was cancelled, and he was taken into custody on the following day.
On 24 January 2007 the applicant was again granted parole. However, on 23 May 2007, his parole was again cancelled.
On 8 April 2009 the applicant was once again granted parole. It seems that it was not until 22 December 2010 that he was released on parole. The likelihood for this delay is that he was serving other sentences in the interim.
On 27 July 2011, the applicant was sentenced in the Magistrates’ Court to an aggregate term of 12 months’ imprisonment, wholly suspended, for a number of drug and dishonesty offences.
On 19 July 2012, the applicant was remanded in custody on charges that form the basis of this application for leave to appeal against sentence. He has now been in custody continuously since that date.
On 26 June 2013, the applicant was sentenced, in the Magistrates’ Court, to a term of imprisonment for further offending, all of which had occurred prior to 19 July 2012, and for breach of the suspended sentence that had been imposed on 27 July 2011. The Magistrate restored the suspended sentence of 12 months, and imposed a further six months’ imprisonment for the new offending, making a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months. A period of 349 days pre-sentence detention was declared as having been already served under that sentence.
Critically for present purposes, on 14 August 2013, the Adult Parole Board (‘Parole Board’) once again cancelled the applicant’s parole. It ordered that he serve 549 days’ imprisonment, that being the unexpired portion of the murder sentence imposed in 1990 (‘the August cancellation’). That parole sentence of 549 days was then added to the sentence imposed by the Magistrates’ Court on 26 June 2013. This was said to result in a single term of two years’ imprisonment, with a non-parole period of 12 months. At that stage, the expiry date for the entire sentence was 12 July 2015.
It should be noted that for reasons that are not readily apparent, and for which the respondent could offer no explanation, the applicant was not informed that his parole had been cancelled on 14 August 2013. Even more remarkably, neither the Crown, nor the Court, was made aware of that fact when he came to be sentenced for the offences that are the subject of this application.
On 10 June 2014, the applicant was sentenced to a term of two years and nine months’ imprisonment. Pre-sentence detention of 150 days was declared. The judge was made aware of the fact that the applicant by that date had already been in continuous custody for a period of 698 days, a matter that she regarded as of considerable importance. Indeed, she referred specifically to the fact that by that date he had ‘been in gaol for nearly two years’.
Self-evidently, because neither the judge nor the parties were aware of the 549 days said to be owing on the murder sentence, or the fact that some 300 of those days had already been served, there were still 249 days outstanding.
Counsel who appeared on behalf of the applicant on the plea, being unaware of the August cancellation, submitted, clearly optimistically, that the judge should impose a sentence that would enable the applicant to be considered for parole immediately. The judge rejected that submission, but did not, at any stage, factor into her sentencing synthesis that the applicant might have to serve a period of close to three more years before being released. Rather, it would seem, although this was never stated expressly, that she contemplated that his release date would be something like 10 October 2016, some two years or so in the future.
The failure to address the 249 days still owing to the Parole Board is said to have had the effect of extending the term of imprisonment that the applicant would have to serve to one whereby he would not be released until 16 June 2017. By then, the applicant would have been in custody for almost five years, since 19 July 2012.
The chronology set out above is sufficient to demonstrate just how difficult it is to work out the order in which the various sentences imposed had to be served, pursuant to the requirements of s 15 of the Sentencing Act 1991.
It is sufficient for present purposes to note that when the parties addressed submissions to the judge during the course of the plea, the fact that a period of 249 days was still owing, because of the August cancellation, was not adverted to at all. Yet plainly that would have been a matter of considerable relevance to the exercise of the sentencing discretion.
The potential importance of that fact, so far as the sentencing judge was concerned, is readily apparent from her sentencing remarks. She referred on no fewer than three occasions to the significance of the principle of totality, and noted specifically that the applicant had been in custody since July 2012.
In particular, her Honour said:
In your case, the principle of totality has a good deal of relevance. You have been in gaol for some 698 days now, which is about one month short of two years. As part of that period was spent undergoing sentence for other matters, 145 days[3] pre-sentence detention is to be declared in respect of the matters before me. However, in sentencing you I have taken into account that you have been in gaol for nearly two years.[4]
[3]Although her Honour refers to 145 days’ pre-sentence detention, the Record of Orders made by the Court declares 150 days’ pre-sentence detention. In fact, it seems that the declaration of 150 days’ pre-sentence detention was itself an error, though it is unnecessary to seek to unravel all of the mysteries of sentencing inherent in a case such as the present.
[4]Sentencing Remarks, [17].
Doing the best we can to reconstruct her Honour’s state of mind as to the amount of additional time that she considered the applicant should serve, as a result of the commission of the offences that were before the Court, we think it is tolerably clear that she contemplated a release date some time around mid-October 2016.
It was not until 23 June 2016 that the applicant became aware of the August cancellation. A caseworker informed him of that fact. That meant that not only would he not be released on or about 10 October 2016, as he had anticipated, but his release date would now be 16 June 2017. That was because the 249 days owing to the Parole Board were to be added to the term of imprisonment imposed by the sentencing judge.
Put simply, the applicant contends that had the judge been made aware that he would not complete the sentence that she imposed until June 2017, as she ought to have been, she would almost certainly have imposed a lesser total effective sentence than she did. He relies upon the doctrine of ‘fresh evidence’ in order to make good that contention.
In support of that submission, the applicant refers to the test for ‘fresh evidence’ set out by Redlich JA (with whom Maxwell P and Neave JA agreed) in R v Nguyen:
It is common ground that this Court may, in limited circumstances – sometimes described as ‘rare and exceptional’ – permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[5]
[5][2006] VSCA 184, [36]-[38].
The applicant submits that the evidence regarding the August cancellation ‘demonstrates the true significance of facts in existence at the time of sentence’.[6] He submits that these facts were unknown to the sentencing judge, the prosecutor, and defence counsel. He submits that the fact of the August cancellation would have been of ‘cardinal significance’ to the proper sentencing process as, he argues, the sentencing judge undoubtedly would have taken it into account under the principle of totality. He further submits that this oversight, on the part of all concerned, has brought about a substantial miscarriage of justice.
[6]Ibid [36].
In the respondent’s written case, it was submitted that even if the sentencing judge had been aware that the applicant still had 249 days owing to the Parole Board when she came to sentence him for these offences, she would not have imposed a lesser sentence.
In support of that submission, in the written case, the respondent noted that the applicant was not entitled to the full 150 days’ pre-sentence detention declared by her Honour, which had itself been calculated on an erroneous basis. As the applicant was serving a sentence of imprisonment for other offences at this time, he was not eligible to have any time declared.
The respondent referred, in the written case, to ss 15 and 16 of the Sentencing Act 1991. Section 15 determines the order of service of the various sentences imposed by different courts. That section relevantly provides:
15 Order of service of sentences
(1)If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve—
(a) firstly, any term or terms in respect of which a non-parole period was not fixed;
(b) secondly, the non-parole period;
(c)thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period.
(2) If during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the order referred to in subsection (1).
The respondent also referred to s 16(3B), which provides:
16 Sentences—whether concurrent or cumulative
….
(3B) Subject to subsection (3BA), every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
…
In the written case, the respondent noted that, as at the date of sentencing for the offences which are the subject of this application, the applicant still had 249 days of the murder sentence to serve, by reason of the August cancellation. Having served that sentence, he would, pursuant to s 15, then be required to complete the outstanding sentences imposed by the Magistrates’ Court in June 2013, and by her Honour in the County Court in June 2014. These sentences would not expire until 16 June 2017.
During the course of oral submissions before this Court, Mr Kissane QC, who appeared for the respondent, resiled almost entirely from the written case filed on behalf of the Crown. He acknowledged that the failure, on the part of all concerned, to appreciate that the applicant’s release date would be some 249 days or so later than what had been contemplated during the course of the plea had the effect of vitiating the exercise of the sentencing discretion. He submitted that it did not matter whether this issue was approached through the prism of ‘fresh evidence’ or simply as a failure to take into account a relevant consideration. He noted, however, that the fact that the applicant still had some, indeterminate, time owing in respect of parole had been raised on the plea, albeit in general terms.
Mr Kissane QC conceded that, in the unusual circumstances of this case, it would be appropriate to set aside the sentence imposed below and to impose, instead, a sentence that would have the effect of enabling the applicant to be released forthwith. In our view, that was an appropriate concession.
Conclusion
When the judge sentenced the applicant for the offences the subject of this application, she properly expressed concern at the fact that, in addition to the very many years that he had spent in prison after his conviction for murder, he had already by that stage been in custody for a further two years, since his apprehension for these offences in July 2012. Nonetheless, despite being urged by the applicant’s counsel to sentence the applicant to a term that would allow for his immediate release, the judge, correctly in our view, did not regard a sentence of that order as sufficient.
At the same time, our reading of the transcript of the plea, and of her Honour’s sentencing remarks, leaves us in no doubt that she would not have imposed the sentence that she did had she been aware that the applicant would not complete that sentence until June 2017. As we have said, that would be some five years or so after he last went into custody.
It is unfortunate that there appears to have been a breakdown in communication between the Parole Board and the applicant regarding the August cancellation. That should not have occurred.
The applicant’s offending in relation to these matters was no doubt very serious. It is a pity for him that he seems to have been unable to refrain from committing offences after being given opportunities, at various times over the past 28 years, to be released on parole.
We think it is a reasonable inference that the judge intended that the applicant should be released, after completing his sentence for the current offences, in October 2016. Of course, it is not the role of this Court simply to ‘rubber stamp’ the judge’s views as to what might be appropriate. Once the sentencing discretion has miscarried, as it has in this case, it is for this Court to impose the sentence that it regards as proper in all the circumstances.
In our view, the head sentence and non-parole period imposed below should be set aside. We would substitute for that sentence individual sentences as follows:
Charge 1 – 23 months’ imprisonment
Charge 2 – $100 fine
Charge 3 – 12 months’ imprisonment
Charge 4 – eight months’ imprisonment
Charge 5 – 12 months’ imprisonment
Charge 6 – 12 months’ imprisonment
It would be pointless, in these circumstances, to fix a non-parole period. Any such period would already have been served.
We would treat the sentence on charge 1 as the base sentence and order that all other sentences of imprisonment on charges 3-6 be served concurrently with each other and with that base sentence. That makes a total effective sentence of 23 months’ imprisonment. Given that the applicant has already served 706 days, not including this day, of that sentence, the effect will be that he has completed the sentence that we now impose, and can be released forthwith.
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