Carr v The Queen
[2012] VSCA 299
•12 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0134
| PETER CARR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, REDLICH JJA and WILLIAMS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 November 2012 |
| DATE OF JUDGMENT | 12 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 299 |
| JUDGMENT APPEALED FROM | DPP v Carr (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant father and son co-offenders – Assault on security guards at nightclub – Early plea of guilty by co‑offender – Complex procedural history – Rejected offer by applicant to plead guilty – Entry of guilty pleas – Change to not guilty plea – Further guilty plea during trial – Utilitarian value of rejected offer to plead guilty – Parity – Application refused.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Ms C A Boston | Melasecca Kelly & Zayler |
| For the Respondent | Mr P B Kidd S.C. with Mr G Barr | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
REDLICH JA:
WILLIAMS AJA:
On 13 March 2009, the applicant and his son and co-offender, Daniel Carr, were involved in an incident in which Lynsley D’Cruz was seriously injured and Mohamad Alhersh was injured at the Orange Whip nightclub in Ringwood. Both victims worked at the nightclub as security guards. The applicant and his son each entered guilty pleas in relation to charges arising out of the incident and were sentenced at different times by different judges of the County Court.
Daniel Carr pleaded guilty to recklessly causing serious injury to Mr D’Cruz and intentionally causing injury to Mr Alhersh, on the basis that he had struck Mr D’Cruz and had acted in concert with the applicant who had struck and injured Mr Alhersh. On 4 November 2010, Daniel Carr was sentenced by her Honour Judge Hannan as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Recklessly cause serious injury 15 years [Crimes Act 1958 (Vic) s 17] 18 months Base 2 Intentionally cause injury 10 years [Crimes Act 1958 (Vic) s 18] 8 months 4 months Total Effective Sentence: 1 year 10 months, wholly suspended for 24 months Non-Parole Period: Nil Pre-sentence Detention Declared: Nil 6AAA Statement: 30 months, non-parole period of 18 months
After a complicated procedural history, the applicant was ultimately sentenced by his Honour Judge Montgomery on 11 May 2012. Like his son, he pleaded guilty to recklessly causing serious injury to Mr D’Cruz, but, whereas Daniel Carr had been sentenced for intentionally causing Mr Alhersh injury, he pleaded guilty to the less serious offence of recklessly causing him injury. The applicant’s guilty pleas were also entered on the basis that he had not struck either man, but had aided and abetted his son, who had struck both of them. The applicant was sentenced as follows on 11 May 2012:
Charge on Indictment Offence Maximum Sentence Cumulation 2 Recklessly cause serious injury (aid and abet) 15 years [Crimes Act 1958 (Vic) ss 17, 323] 18 months Base 4 Recklessly cause injury (aid and abet) 5 years [Crimes Act 1958 (Vic) ss 18, 323] 8 months 4 months Total Effective Sentence: 1 year 10 months Non-Parole Period: 10 months Pre-sentence Detention Declared: Nil 6AAA Statement: 30 months, non-parole period of 20 months Grounds of appeal
He now seeks leave to appeal from these sentences on the following grounds:
1.The learned sentencing judge erred in failing to treat as a mitigatory factor the notional utilitarian value of the applicant’s pleas of guilty, being the utilitarian value that would have been derived had the prosecution accepted the applicant’s pre-committal offer to plead guilty to slightly more serious offences than those to which he ultimately pleaded guilty during the second trial.
2.The learned sentencing judge erred in that the sentences imposed upon the applicant and the non-parole period fixed were such as to give rise to a justifiable sense of grievance when set against the sentence imposed upon the applicant’s co-accused.
Circumstances of offences
In the early hours of 13 March 2009, 19 year old Daniel Carr and another man were verbally and physically aggressive towards two security guards at the Orange Whip nightclub. They were ejected as a result. In the process, the applicant said to Mr Alhersh (one of the guards), ‘my Dad’s a Hell’s Angel. You don’t know who you’re messing with, I’m gonna bring him down’.
Daniel Carr then rang the applicant. He came to a car park near the nightclub, in response to the call. He and his son took hammers from his car. They hid them in their clothing and returned to where the security guards were standing, at the back of the nightclub.
During the ensuing confrontation, the applicant pulled out the hammer he was carrying and wielded it in a threatening fashion, whilst verbally abusing the guards. Meanwhile, Daniel Carr hit Mr Alhersh on the left side of his head with his hammer. This caused pain, as well as a laceration and bleeding. Then, seeing his father struggling for control of his hammer with the other guard, Mr D’Cruz, Daniel Carr lunged forward and struck Mr D’Cruz above his left eye. Mr D’Cruz suffered a five centimetre laceration, a depressed left frontal bone and left supra orbital ridge and a periorbital haematoma.
The applicant and his son were soon stopped and arrested as they drove from the scene. Two hammers were found on the floor of their car. In a taped record of interview later that morning the applicant largely gave ‘no comment’ answers to police questions.
Victim impact statements tendered at the plea indicated that Mr D’Cruz and Mr Alhersh had suffered deleterious physical, psychological and financial consequences of the offences.
Personal circumstances
The applicant
The learned sentencing judge referred to the 27 June 2011 report of Mr Michael Crewdson, a clinical and forensic psychologist, in relation to the applicant’s personal circumstances. Relevant submissions were also made in the plea.
The applicant was born on 28 July 1962 and was 49 years old when sentenced. His father had been a member of the British SAS force and was a regimented man and a strict disciplinarian. He was frequently and unpredictably violent towards the applicant and his two brothers.
The applicant left home at 15, being unable to cope with his domestic circumstances. His elder brother had left the previous year. The applicant was in Year 9 when he left school and had been successful in his studies to that stage. He lived on the street for a number of years. He began to fall foul of the law from the age of 17, and, between the ages of 17 and 22, he spent a significant period in custody.
He first appeared on 17 June 1980, at the age of 17, in the Ringwood Magistrates’ Court where he received a sentence of two years’ probation. A month later, on 17 July 1980, he was fined for street offences. On 15 September 1980, he was sentenced to 12 months’ imprisonment wholly suspended for various assaults. An Attendance Centre order was imposed in lieu of imprisonment and he went on to breach that order. On 2 October 1980, he was sentenced to three months’ youth detention and fined for thefts including theft of a motor vehicle, receiving stolen goods and wilful damage. He escaped from the Youth Training Centre where he was being detained and was convicted of that offence and theft of a motor car and was sentenced to six more months’ detention for each offence on 17 March 1981.
On 18 February 1982, he was sentenced to a total of 14 months’ imprisonment for thefts, including theft of a motor car, assault occasioning actual bodily harm, driving in a dangerous manner and driving whilst disqualified. One month later, on 18 March, he was sentenced to 12 months’ imprisonment for theft of a motor car and driving whilst disqualified at the Ringwood Magistrates’ Court. A sentence of seven days imprisonment for wilful damage followed in the same court on 8 April 1984. County Court appeals resulted in both convictions being affirmed and the sentences of imprisonment being made concurrent.
He was convicted of minor drug offences in 1983.
The applicant appeared again in the Melbourne County Court on charges of theft which include theft of a motor car on 4 June 1984. He was sentenced to a total of 18 months’ imprisonment with a minimum term of 12 months.
The applicant was married in 1984. That marriage lasted for 20 years before he separated from his wife. Daniel Carr and a younger sister, who is about 20 years old, were the children of that marriage.
After being released from prison, from in around 1985, the applicant was employed as a labourer.
On 14 July 1987, he returned to the Ringwood Magistrates’ Court where he was fined $1500 for unlawful assault. On 17 December of the following year, 1988, he was again sentenced in that court to imprisonment for four months (with three months suspended) for handling stolen goods. On 19 July 1991, he was fined for cultivation, possession and use of cannabis at Lilydale Magistrates’ Court and on 28 February 1992, he was fined there for removing a dog from the pound.
On 6 March 1992, the applicant was sentenced in the County Court to six months’ imprisonment (three months suspended) for intentionally or recklessly causing injury. On 16 October of that year, he was also sentenced, again in the County Court, to a total of 30 months’ imprisonment for trafficking and possession of a drug of dependence.
When not in custody, the applicant continued to work. In about 1991, he had completed a Diploma of Applied Science in Building and Construction. He worked in that industry. By 1998, he had established his own roofing business, but that year he fell off a roof and broke his ankle. He was also diagnosed with chronic fatigue syndrome and type 2 diabetes mellitus. In about 2001, he was employed as a supervisor in a community jobs program, working with disadvantaged youth and others.
On 14 November 2001, the applicant again appeared at the Ringwood Magistrates’ Court and was sentenced to eight months’ imprisonment for intentionally causing injury. Two months of the sentence was suspended. On the following day, he was sentenced in the same court to four months’ imprisonment for possession of property being the proceeds of crime. That sentence was wholly suspended for 12 months. On 29 July 2002, he succeeded in a County Court appeal against his 14 November 2001 sentence. An Intensive Correction Order was imposed and he was ordered to pay $2400 compensation.
The applicant had been involved in a five year relationship with another partner at the time he was sentenced in 2012.
Mr Crewdson concluded that the applicant suffered from severe anxiety and severe depression. He noted that he had been introduced to intravenous drug injection whilst in detention at the Malmsbury youth detention centre. He had used cannabis and amphetamine but disliked methyl-amphetamine and had no interest in heroin. He did not drink alcohol.
Mr Crewdson concluded that the applicant’s history would suggest ‘some greatly disturbed stability in a number of areas of psychological functioning, commencing with his early childhood’. Testing indicated that his IQ matched that of approximately 78 per cent of the general population. Mr Crewdson considered the applicant capable of responding to treatment which went beyond basic psycho-educational approaches such as ‘anger management’. He concluded that the 2009 offending had had a salutary effect which was likely to be lasting.
Daniel Carr
Daniel Carr’s situation at the time he was sentenced was significantly different from that of his father when he faced the County Court in 2012. Importantly, he was only 19 years old when he offended and he had no criminal history. (After his offences, but before being sentenced in November 2010, he had received a good behaviour bond for a relatively minor example of recklessly causing injury and had been convicted and fined for a driving offence and failure to answer bail.)
Daniel Carr had also had a difficult childhood. In his case, this was because of the applicant’s numerous incarcerations and his volatile and aggressive behaviour. After his parents’ separation four years before his sentence in November 2010, Daniel Carr had had little contact with his father, with whom he had a problematic relationship.
He left school part of the way through his year 11 studies. After starting a motor mechanic’s apprenticeship, he had worked as a tyre fitter and a line marker. His employer at the time he was sentenced described him as honest and hard working.
Although Daniel Carr had previously engaged in binge drinking about once every two months and had been intoxicated when he offended, he had stopped that behaviour after the incident. There was no issue with drugs in his case.
A reporting psychologist had recommended treatment in relation to anger management and personal issues. At the time of sentencing, that treatment was progressing well and Daniel Carr had been a willing participant.
Ground 1: Alleged failure to treat notional utilitarian value of guilty pleas as mitigating factor
To deal with the first ground of appeal, it is necessary to consider the procedural history which formed the background to the applicant’s guilty plea on 11 May 2012.
Plea offer in mid 2010
In mid 2010, the applicant offered to plead guilty to offences of the same type as those for which his son would be sentenced in November of that year. His plea was offered on the basis that he had aided and abetted his son in the commission of the offences. The offer was made on the express basis that he did not strike either Mr Alhersh or Mr D’Cruz. It was rejected by the Crown which maintained he had hit Mr Alhersh.
Daniel Carr entered an early guilty plea and he was sentenced by Judge Hannan on 4 November 2010. He was sentenced on the basis that it was the applicant who had struck Mr Alhersh.
The applicant’s committal was adjourned because he was ill.
Guilty plea entered on 24 November 2010
On 24 November 2010, the scheduled date for the postponed committal, the applicant entered pleas of guilty to the offences of recklessly causing serious injury, and intentionally causing injury, on the basis that he had acted in concert with his son.
Mention on 22 March 2011
The applicant was unrepresented when he appeared before Judge Hannan for a plea hearing on 22 March 2011. He informed the court that he disputed that he had struck Mr Alhersh.
Counsel for the prosecution indicated that the prosecution case was that the applicant had acted in concert with his son, who had seriously injured Mr D’Cruz, but that it was he who had caused the injury to Mr Alhersh. Her Honour expressed concern that the applicant was really disputing an element of the offence of intentionally causing injury to Mr Alhersh, to which he was pleading guilty. She adjourned the plea hearing to enable him to obtain legal advice.
Arraignment on 12 April 2011
The applicant was arraigned at a mention hearing on 12 April 2011. His counsel informed Chief Judge Rozenes that his client disputed that he had struck anyone.
Plea hearing on 28 June 2011
The adjourned plea hearing resumed before Judge Hannan on 28 June 2011. The prosecution case remained that the applicant had acted in concert with his son and had struck Mr Alhersh with a hammer. Videotaped CCTV footage, not previously available in a viewable form, was then played to the court. It showed that the applicant had indeed not hit either guard and that the attack on Mr Alhersh had taken place behind him.
The prosecution nevertheless maintained that it should be inferred from the applicant’s actions that he was acting in concert with his son in relation to the offending behaviour which was about to occur. The prosecution maintained that the requisite agreement should be inferred from the evidence of him driving to the nightclub armed with hammers, walking with his son to confront the guards when they each knew that they were both armed with hammers, leading the way and yelling at the guards whilst waving his hammer and asking why his son had been ejected.
The applicant, on the other hand, submitted that he had been trying to stop his son’s advance towards those men by putting his right arm (holding the hammer) across his son’s chest.
In discussion between counsel and the judge, counsel for the applicant confirmed that his client had pleaded guilty to acting in concert with his son on the basis of agreement. Her Honour again expressed her concern that the applicant’s version of events was inconsistent with a guilty plea. Counsel for the applicant told the court that ‘considerable attention’ that had been given to the matter. The hearing was stood down so that an agreed factual basis for the plea could be determined.
The prosecution then indicated its willingness to accept a plea on the basis that it should be inferred that, when the applicant and his son had armed themselves, they had agreed that the hammers would be used, if required. But the prosecution would not concede that the men had armed themselves purely for defensive purposes.
This position was not acceptable to the applicant. When his counsel appeared to foreshadow a submission that it could be inferred that the applicant’s defensive intent became an offensive one when Mr D’Cruz approached him, her Honour said
that the defence case appeared inconsistent with the plea and the prosecution summary. The matter was adjourned once again at her suggestion.
In this appeal, different counsel for the applicant sought to explain his client’s counsel’s submissions as to the facts on 28 June 2011 by reference to the speed at which events had occurred that day and the fact that the submissions had been made just after the additional CCTV footage had been shown. We do not find that submission persuasive. Those circumstances do not fully explain the stance the applicant took with regard to the facts. The submissions made to the judge on 28 June 2011 indicated that his counsel had given the matter some consideration because he referred to having tried earlier to raise with the prosecution the issue as to the time at which his client’s intention had changed from one in which he would be involved only for a defensive purpose.
Mention on 2 August 2011
At a further mention before Judge Hannan on 2 August 2011, the applicant had different legal representation and indicated his wish to change his plea in the relevant matters. Directions were given for the filing of affidavits in support of the necessary application.
Affidavits in support of application relating to proposed change of plea
The applicant
The applicant swore an affidavit on 7 October 2011 in support of his plea change application. He deposed that, throughout, he had instructed his former solicitor, Mr Peter Randles, that he wanted to contest the allegations and charges and that at no time had he intended or expected that anyone would be injured, seriously or otherwise.
According to the applicant, Mr Randles had advised that he could be found guilty of recklessly causing serious injury, simply by being at the scene in company with his son.[1] When entering his guilty plea on 12 April 2011, he had believed that he was pleading guilty to being at the scene of the incident, but not to striking anyone or causing any injury.[2] Mr Randles had also told him that he could contest the facts later on.
[1]Affidavit of Peter Gordon Carr sworn on 7 October 2011.
[2]Ibid [28].
The applicant also deposed that he would not have pleaded guilty to recklessly causing serious injury, if he had understood that that offence involved him being aware that someone would probably be injured and yet continuing to act. Nor would he have pleaded guilty to the intentional offence, if he had understood that it would have involved him having intended that someone be hurt. He had felt pressured to plead guilty by Mr Randles and had always tried to make it clear that he would plead guilty only on the basis of his presence at the scene with his son.[3]
The applicant’s former solicitor, Mr Peter Randles
[3]Ibid [30]-[34].
Mr Peter Randles responded to what was said by his former client in his affidavit of 15 December 2011. He deposed that he had never pressured the applicant, who had been told he could expect a sentencing discount if he pleaded guilty. Mr Randles described their discussions in these terms:
… a significant part of those discussions related to the criminal liability of parties to alleged criminal activities. In Mr Carr’s case it was whether he could be convicted even if he did not hit anybody with a hammer. I advised him that he could be convicted as either aiding and abetting his son in the assaults or as a co-offender with his son pursuant to an agreement to confront the victims with a possibility of an assault occurring in that situation. I thought that Mr Carr understood this as he instructed me to make a plea offer to settle the matter as early as March 2010. I made that offer to … counsel who held the prosecution brief at that time. This offer was put on the basis that Mr Carr aided and abetted his son. …
The case then proceeded to Ringwood Magistrates’ Court in November for a contested committal. On that day the prosecution again discussed resolving the matter and I understood it to be on the basis that Mr Carr was aiding and abetting his son but the Crown were not prepared to concede that Mr Carr had not struck one or both victims with a hammer. On this issue Mr Carr was definitive in his instructions that he did not and the security footage that I viewed confirmed this. Mr Carr then entered pleas of guilty on the understanding that there was no concession in the pleas that he had struck anybody with a hammer.
The applicant’s counsel, Mr Newton
Mr Newton of counsel had represented the applicant on 28 June 2011. In his 15 December 2011 affidavit in support of the plea change application, he described his efforts to obtain the additional material showing that the applicant had not struck Mr D’Cruz, as well as the resulting prosecution concession.
Significantly, he stated that the applicant’s instructions to him had always been consistent with his account of events to Mr Crewdson who had provided the 27 June 2011 psychological report to the County Court. That version (as far as it goes) involves Mr Car essentially acting defensively throughout and trying to restrain his son. Mr Crewdson reported in these terms:
THE INCIDENT
“… when Daniel rang. I said I wasn’t well but he sounded really upset so I went.”
The applicant told me that his son’s welfare and conflict about his own physical state had been very much on his mind when he drove towards the nightclub to meet the boy.
He has written a detailed account of meeting his son and being shown the welts on his body. The boy complained about “…bouncer number 21 (and said) he would at least like a *****apology”. The applicant said that he had made an initial approach to the entrance to the nightclub and saw there were a large number of security staff and felt that the atmosphere was tense. He returned to the 4WD vehicle and found that Daniel’s friends had opened the rear door and were checking through the contents of his toolboxes. He said there was a lot of talk about being protected.
…to quote from [the appellant’s] account:
“I told them that I was going to try talk to the bouncers reasonably, but in case it was not possible I needed someone to watch my back. I looked over at Dan who had two hammers, one large and one small. I told them that I would try and get an apology, but in case it went wrong we should all keep calm, One of the kids said there were cameras all over the back of the club and the alleyway. I took the larger hammer out of Daniel’s hand, but he protested, “we need something Dad”. I couldn’t disagree with him and I was a bit scared of what might happen if things went wrong, and visualised the consequences of a failure to communicate in the right way, although I thought that the bouncers would not do anything stupid because they would also be on camera. Without speaking, I approached the alley. Someone was behind me and I saw that it was Daniel and a friend. He looked at the hammer, in his hand and looked at me. I told him that I was putting the one I had under my shirt with the head in my armpit. I walked down and approached the bouncers.”
…
He told me that he had tried to keep Daniel under control…. He told me that he had physically attempted to hold Daniel back … .
Mr Newton went on to recount that, on 28 June 2011, the applicant had maintained that, insofar as intent was to be inferred from conduct, it might be inferred that he had intended the hammers to be used for self-defence as required at the time when they were taken from the car. When Mr D’Cruz was approaching him and before anyone was struck, that intent had changed to one ‘where [the applicant] was complicit in the actual use of the hammers’.
Mr Newton deposed that Judge Hannan had considered that the basis for complicity would not be established ‘unless it started from the time that the hammers were taken from the car’. After another adjournment, the prosecution had reverted to its position that the evidential basis for the inference founding complicity commenced at the time when the hammers were taken from the boot. This being unacceptable to the applicant, Mr Newton had advised that he should apply to change his plea and that it would be prudent to retain new legal representatives.
Plea change application granted
The plea change application was granted on 27 February 2012 and the applicant’s guilty pleas were vacated.
The trials before Judge Montgomery
The applicant’s trial started before Judge Montgomery on 30 April 2012. It was vacated after the jury was discharged on 7 May 2012 (for a reason not relevant for present purposes) and recommenced on the following day.
On 10 May 2012, the judge criticised the parties for not having settled the manner in circumstances in which, he said, the CCTV footage showed that the applicant had aided and abetted his son in recklessly causing injury ‘at the very least’. Shortly afterwards, the prosecution accepted the applicant’s offer to plead guilty to the offences of recklessly causing serious injury and recklessly causing injury on the basis that he had aided and abetted Daniel Carr in the commission of those offences.
The plea before Judge Montgomery
The plea was made before Judge Montgomery on 11 May 2012.
The prosecution case was that it was to be inferred from the applicant’s acts and presence that he had intentionally encouraged his son to strike the guards and had aided and abetted commission of the offences. He had brought hammers to the scene. He and his son each knew that they had hammers. He had also raised his hammer multiple times. He was angry. He had acted aggressively throughout and had been yelling at the guards. The prosecution submitted that the applicant had participated in a ‘revenge attack’ on security guards, which had involved a group of males and occurred in a public place.
Whilst the applicant accepted that he should not have been at the scene holding a hammer, he disputed the prosecution allegations about his behaviour. He maintained that he had only raised his hammer to keep it away from others and not in order to strike anyone. He had not wanted to be involved in a fight over it. He had tried to pull his son back with one hand, being concerned that other guards were approaching him and knowing that Mr D’Cruz was behind him. The applicant tendered Mr Crewdson’s report, containing the psychologist’s account of the history he had supplied.
In submissions, counsel for the applicant referred to the procedural history and to the fact that he had always been going to contest that he had done the striking. The prosecution responded that it had conceded that point at the 28 June 2011 plea hearing, but that the applicant had only renewed his offer to plead guilty, on the basis of aiding and abetting his son, on the previous day, namely 10 May 2012.
The reasons for sentence
Judge Montgomery rejected the applicant’s version of events, as ‘fanciful’. After hearing evidence in the trials and having viewed the CCTV footage numerous times, his Honour was satisfied beyond reasonable doubt that Mr D’Cruz had been justified in grabbing the hammer in the belief that the applicant had been going to hit someone with it. His Honour concluded that the applicant had been holding the hammer in a way which would have appear to be aggressive to an onlooker.[4]
[4]DPP v Carr (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012) [3].
The judge referred to the procedural history and went on say:
In the circumstances I consider that you did offer and indeed entered an early plea but it is apparent from what [counsel for the applicant] has told me, that upon such a plea it was always intended to dispute the factual matter concerning the hammer which I have referred to and ruled on.
The entry of the plea in these circumstances at this stage, has had little utilitarian effect as two juries have been empanelled and discharged and evidence called. However, I accept that this offer and early plea [sic], you have accepted, in the main, responsibility and shown remorse for what happened that night. This does not extend to the factual finding I have made. It concerns me that you do not accept that your holding of the hammer in the way it is apparent upon the viewing of the video and the stills, was an aggressive action. Upon a viewing of such video and the stills and hearing the evidence of the witnesses, it is an obvious conclusion that it was.[5]
[5]Ibid [5(c)].
Submissions
The applicant submits that, whilst the judge took his rejected March 2010 plea offer into account, he erred by failing to accord him ‘full’ rather than ‘some’ credit for it. He was entitled to be sentenced as if the prosecution had accepted his initial plea offer and the two trials had never occurred. The prosecution had ultimately accepted his offer to plead guilty on the basis of aiding and abetting his son in relation to the two offences, one of which was the slightly less serious than that which had been the subject of his March 2010 offer.
The applicant also submits that it was his intention throughout to dispute that he had struck someone, and that the allegation that he used the hammer aggressively had not been part of the prosecution summary at any stage before he communicated his intention to plead guilty. His trials had taken place because he had refused to accept that he had acted in concert with his son under an agreement evidenced by the facts commencing with them taking hammers out of his boot.
The respondent contends that it was clear from the submissions made in the course of the plea that the applicant had not only contested his actual use of the hammer, but that he had disputed the allegation as to its purported use, so that his position was that he had not used it in a threatening way. Therefore, the prosecution had always been required to prove that fact.
Citing the High Court’s decision in Cameron v R[6] and that of the Court in Phillips v The Queen[7], the respondent submits that the fact that he did not seek to renegotiate his plea, but rather elected to change it in light of the additional footage, was also relevant to the exercise of the discretionary assessment of the mitigatory effect of his early plea offer.
[6](2002) 29 CLR 339.
[7][2012] VSCA 140 (‘Phillips’)
The respondent contends that, in all the circumstances, the learned sentencing judge correctly exercised his discretion in assessing the mitigatory effect of the plea.
Discussion
Judgment was delivered in Phillips on 29 June 2012, just over a month after the applicant’s sentence. In Phillips, the main issue was as to whether the strength of the prosecution case was relevant to the discount for the objectively assessable utilitarian benefit of a guilty plea. It was in that context that Redlich JA and Curtain AJA (with whom Maxwell P agreed in this regard) also observed that whilst a rejected offer to plead guilty will not have a utilitarian benefit of the kind which results where a trial is avoided, it may demonstrate acceptance of responsibility, remorse and willingness to facilitate the course of justice. [8]
[8]Ibid [66].
Intermediate appellate courts in South Australia in R v Hansen[9] and R v Franklin,[10] in New South Wales in R v Oinonen[11] and R v Cardoso[12] and Queensland in R v Marshall[13] have all recognised that a rejected offer to plead guilty to a lesser offence than that upon which the Crown has proceeded may also be considered to have a utilitarian value when the offender has ultimately been convicted of that lesser offence. The Court in R v Bartlett[14] and Sherna v The Queen[15] appears to have taken a similar view.
[9](2011) 206 A Crim R 54.
[10][2012] SASFC 109.
[11][1999] NSWCCA 310.
[12](2003) 137 A Crim R 535.
[13](1994) 1 Qd R 673.
[14][1996] 2 VR 687, 698-9.
[15][2011] VSCA 242, [18] (Ashley JA), [41] (Hansen JA), [88] (Whelan AJA).
These decisions, which include the very recent decision of Franklin, provide sound reasons why in principle it can be authoritatively stated that there will be circumstances in which, in sentencing, an allowance for the utilitarian benefit of a rejected offer to plead guilty should be made. The reasons which underlie the granting of a discount for the utilitarian benefits of a guilty plea, discussed in the joint judgment in Phillips, are also relevant to a rejected offer to plead guilty to an offence of which the offender is ultimately convicted. The joint judgment in Phillips[16] does not address all of the possible utilitarian benefits, ‘notional’ or otherwise, of a rejected offer to plead guilty and is not to be so understood.
[16][2012] VSCA 140, [66].
For the purposes of this case, it has not been necessary to consider what the circumstances might be which would attract an allowance for the utilitarian benefit of a rejected offer to plead guilty. Here, it is not disputed that the learned sentencing judge has attributed some utilitarian value to the applicant’s rejected offer. The applicant’s complaint is that his Honour failed to attribute to his offer the same measure of utilitarian value he would have attributed to it, had it been accepted. In the circumstances of this case, it is not reasonably arguable that such a submission would succeed.
Any weight to be accorded to an offer to plead guilty in the exercise of the sentencing court’s discretion must be determined in all the circumstances. This was not a case in which there had been a rejected offer to plead guilty to a lesser offence of which the applicant had been found guilty after a trial for a more serious one. Here, whilst the applicant’s instructions might have differed at various points in time, the material filed in support of the plea change application, the discussion in the plea and the findings of the sentencing judge all indicate that the applicant’s version of the facts throughout would have been inconsistent with the necessary factual basis for pleas premised either on him acting in concert with his son or aiding and abetting him in the commission of the offences. The applicant’s presence and intention to act defensively would not have been enough for him to have been held liable on either basis. His offer to plead guilty in those circumstances would not have been likely to have resulted in its acceptance and him being sentenced after pleading guilty any earlier than he ultimately did. It is not reasonably arguable that the judge failed to accord him appropriate credit for his rejected offer to plead guilty or for his subsequent pleas.
Leave to appeal in relation to ground 1 should be refused.
Ground 2: Parity
It is not reasonably arguable that this ground would succeed.
The learned sentencing judge stated that he had taken the issue of parity into account[17] in sentencing the applicant. His Honour contrasted the positions of the applicant and Daniel Carr. The applicant was Daniel Carr’s father. He was in a position to calm his son when responding to his call. It was he who brought the hammers to the scene and inflamed the situation by acting aggressively and leading his son, with others, to confront those who would become the victims of the assaults he encouraged.
[17]DPP v Carr (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012) [11].
The applicant was 46 years old and his son was only 19 at the time. Daniel Carr was entitled to the benefit flowing from the application of the principles relating to the importance of rehabilitation of youthful offenders enunciated by the Court in R v Mills[18]. The importance of his rehabilitation was recognised by the suspension of his sentence.
[18][1984] 4 VR 235.
In addition, the applicant had a lengthy criminal history. The respondent points out that his conduct had been the subject of 67 findings of guilty in 20 court appearances and had previously served terms of imprisonment. His son had no prior offences and was of good character. As the respondent submits, the need for deterrence and denunciation were significant sentencing objectives in the applicant’s case, but not in the case of his son.
The applicant argues that his Honour failed to advert to the fact that Daniel Carr was being sentenced for intentionally causing injury to Mr Alhersh, whilst his father had pleaded guilty to the lesser offence of recklessly causing injury to that victim. Daniel Carr, however, had had the advantage in this regard of being sentenced on the basis that he had acted in concert with the applicant who had inflicted the injury on Mr Alhersh. Further, the judge concluded that Daniel Carr would probably not have offended as he did but for the encouragement of his parent.[19] The disparity between the sentences arguably reflects his Honour’s assessment of their respective levels of moral culpability in all the circumstances.
[19]DPP v Carr (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012) [11].
As Gibbs CJ said in Lowe v the Queen:[20]
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
[20](1984) 154 CLR 606, 609 (‘Lowe’).
It is not reasonably arguable that there is present in this case what Mason J in Lowe described as ‘a manifest discrepancy such as to engender a justifiable sense of grievance’[21] warranting the Court’s interference with the applicant’s sentence. Indeed, in our opinion, the sentence imposed on the applicant is lenient in all the circumstances.
[21]Ibid 613.
The application for leave based on ground 2 should also be refused.
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