Cokacar v The Queen
[2019] VSCA 178
•14 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0018
| SHANE COKACAR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and PRIEST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 July 2019 |
| DATE OF JUDGMENT: | 14 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 178 |
| JUDGMENT APPEALED FROM: | DPP v Cokacar (Unreported, County Court of Victoria, Judge Riddell, 18 October 2018) |
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CRIMINAL LAW – Appeal – Sentence – False imprisonment, armed robbery, intentionally cause injury, threat to kill – Aggregate sentence 4 years and 8 months’ imprisonment, non-parole period 2 years and 6 months – Whether manifestly excessive – Objective seriousness – Significant criminal record – Whether unreasonable disparity with co-offender’s sentence (242 days’ imprisonment plus 2 year CCO) – Differences in role, criminal record – Co-offender’s significant cooperation – Whether aggregate sentence appropriate – No sentencing error – Appeal dismissed – Sentencing Act 1991 s 9.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J O’Connor | TAIT Lawyers |
| For the Respondent | Mr G M Hughan | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
Introduction
The appellant pleaded guilty to false imprisonment[1] (charge 1), intentionally causing injury[2] (charge 2), making a threat to kill[3] (charge 3) and armed robbery[4] (charge 4). The sentencing judge imposed an aggregate sentence of four years and eight months’ imprisonment, and fixed a non-parole period of two years and six months.[5]
[1]False imprisonment is a crime at common law. By s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958 s 18. The maximum penalty is 10 years’ imprisonment.
[3]Ibid s 20. The maximum penalty is 10 years’ imprisonment.
[4]Ibid s 75A(1). The maximum penalty is 25 years’ imprisonment: at s 75A(2).
[5]DPP v Cokacar (County Court of Victoria, Judge Riddell, 18 October 2018) (‘Reasons’). Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for his pleas of guilty, she would have sentenced the appellant to be imprisoned for six years, with a non-parole period of four years.
The appellant’s co-offender, Beverley Brooks (‘Brooks’), had pleaded guilty, before the same judge, to one charge each of false imprisonment, common assault[6] and armed robbery. She was sentenced to an aggregate sentence of 242 days’ imprisonment, together with a community correction order (‘CCO’) of two years’ duration. Conditions attached to the CCO required Brooks to undertake 200 hours’ unpaid community work, and to be assessed and treated for drug, alcohol and mental health issues.
[6]Common assault is a crime at common law. By s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
The appellant was granted leave to appeal against his sentence on three grounds, formulated as follows:
1. There is an unjustified disparity between the sentence imposed upon the Applicant and that imposed upon his co-offender.
2. The learned sentencing judge erred in imposing an aggregate sentence.
3. The total effective sentence and the non-parole period are manifestly excessive having regard to, in particular:
(a) The Applicant’s early plea of guilty; and
(b) The Applicant’s youth.
For reasons which follow, I would dismiss the appeal.
The offending
At the time of the offending, 17 November 2017, the appellant was aged 20 years. Brooks was aged 23.
On that day, Brooks shared text messages with the appellant that she had been sent by a friend, P, in which P had proposed paying Brooks for sex. Brooks and the appellant were apparently affronted by the messages, and they devised a plan to invite P to the appellant’s residence to confront him.
Brooks asked P to attend the residence in Mitcham. He arrived at about 7:30 pm. After being admitted by Brooks, he took a seat in the lounge room. Brooks then stood over him and abused him for disrespecting her. While this was happening, the appellant entered the room dressed in a white jumpsuit. He was wearing black rubber gloves and sunglasses and carrying a meat cleaver. He started abusing P for disrespecting his girlfriend.
Brooks locked the front door. P tried to open it, but the appellant locked it again. The appellant then punched P. Brooks, with the appellant’s assistance, then used duct tape to secure P’s hands behind his back and to cover his mouth. The appellant repeatedly punched P to the head and threatened to kill him and to ‘cut his dick off’ (charge 3 — making a threat to kill). Brooks called her ex-partner and put him on loudspeaker. The appellant hit P over the head with the back of the meat clever and told him to say sorry to Brooks (charge 2 — intentionally causing injury). P was terrified and kept saying sorry before the call ended.
Brooks then proposed that the appellant go to the bank and take P’s money. The appellant held the meat cleaver to P’s back and forced him to his own car. Brooks drove, whilst the appellant sat in the back seat with P. They went to a bank in Mitcham. The appellant held the meat cleaver to P’s face and Brookes demanded his bank card and PIN. Brooks then used P’s card to withdraw $700 (charge 4 — armed robbery). The three then drove back to the residence, where the appellant again punched P at various times.
P begged to be released. Brooks convinced the appellant to let him go on the condition that he not report the matter to police. Brooks cut the duct tape from P’s wrists. The appellant then took P’s silver iPhone 7, forced him to remove his blood-stained white t-shirt and took his driver’s licence (which Brooks photographed using her mobile phone).
After being released, P returned home and his girlfriend and her mother drove him to hospital. As a result of the incident, P suffered a cracked lip lining (which required plastic surgery and stitches); nerve damage to a tooth; two black eyes; and bruising around his body. He called police from the hospital and subsequently provided a statement.
At approximately 10:10 am on 18 November 2017, police executed a search warrant at the appellant’s residence. They were both arrested. Police located P’s iPhone 7 in the appellant’s black satchel bag, together with $1,170 in assorted notes. They also found used duct tape on the floor of the dining and kitchen area. The appellant’s white runners and white t-shirt appeared to be blood-stained and were seized. A meat cleaver was located on the floor of Brooks’ black Holden Commodore, parked in the garage.
The appellant denied any knowledge of the attack on P. He told police that the money in his satchel was payment from his work as a painter and that he had purchased the iPhone 7 from a friend the night before for $50. Brooks subsequently admitted involvement in the incident and gave an undertaking to give evidence. She admitted to being present and arranging for P to attend the address, but stated that she did not realise that the appellant was going to assault and threaten him.
Ground 1: parity
As Priest JA noted in granting leave, the principal inquiry when a complaint of disparity is raised is whether it was reasonably open to the judge in the circumstances of the case to differentiate between co-offenders in the way that she did. The relevant principles were summarised in Collins v The Queen:
The principles governing parity are well-established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive. [7]
[7][2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations omitted).
The judge dealt with parity in these terms:
I sentenced Ms Brooks earlier this year to 242 days’ imprisonment plus a two year community corrections order with conditions including unpaid community work and rehabilitation. However your counsel sensibly conceded the significant differences between you and your co-offender.
In summary the differences between you and her are as follows. At the time of the offending she sought to dissuade you from perpetrating ongoing assaults on the victim. She persuaded you to let the victim leave. She admitted her involvement the following day and stated that although she accepted her role she did not anticipate the level of violence you would engage in. She showed genuine remorse for her offending and in particular because the victim had been a friend. She pleaded guilty to less serious offences, false imprisonment, common law assault and armed robbery. Her plea was entered at a very early stage, at committal case conference in February of this year. She had a diagnosis of bipolar disorder and documented mental health history including a suicide attempt as a result of difficult circumstances in her upbringing. Leading to these offences she experienced the breakdown of a violent relationship and this, in combination with her mental health issues led her to increased drug abuse. She had taken up the opportunity of an intensive drug rehabilitation course in custody which including months of counselling and 46 clean urine screens. She had a Diploma in Childcare and a positive work history in both childcare and aged care and was keen to pursue a career in social work. She had the support of her family and a young son and she had only one prior matter in the Children’s Court which was of a very different nature to these offences.
In contrast you escalated [this] offending first by use of a disguise then by actual and erratic violence committed over some period of hours, by use of the meat cleaver to reinforce your threats of dismembering the victim, by actually using that weapon to hit him, by holding it against his face as he drove in the car, by your nasty and very disturbing threats to kill him. The victim did actually sustain injury which required plastic surgery and ongoing dental work. Your moral culpability for this offending is high.[8]
[8]Reasons [23]–[25].
Plainly enough, these were significant differences between the appellant and Brooks, both as to their respective roles in the offending and as to their personal circumstances. The judge did not refer here, however, to a matter which she had described as being of great significance in her sentencing of Brooks, namely, her cooperation with the police. As her Honour explained in those sentencing reasons, it was very significant cooperation:
Your matter resolved early when you indicated your plea of guilty in the Magistrates’ Court at a committal case conference on 14 February 2018. It was then adjourned to this court for the purpose of a plea on 14 June 2018. On that date, you indicated a preparedness to cooperate with the authorities by way of a provision of a statement outlining the involvement of your co-accused in these offences.
The matter was adjourned to enable the informant to take such statement from you so that your level of cooperation could be assessed as part of your plea and in relation to sentence.
Cooperation with authorities is an important sentencing consideration. As a matter of significant public policy, the law has always encouraged those jointly involved in criminal behaviour to betray the confidence of the other by providing for a discount for that cooperation at the time of sentencing.
It is further conceded by the prosecution that in your case, your cooperation against Mr Cokacar will be a critical part of the case against him. Mr Cokacar has denied presence or involvement of these offences. He has given exculpatory explanations for the location of the victim’s iPhone and $1,170 in cash inside his satchel bag.[9]
[9]DPP v Brooks (Unreported, County Court of Victoria, Judge Riddell, 17 July 2018), [27]–[30].
On the plea in the present case, her Honour pointed out to defence counsel that Brookes had provided the ‘critical evidence’ in relation to the appellant. Counsel acknowledged that he had read the reasons for sentence in Brooks’ case. Shortly afterwards, he expressly conceded ‘the differences between [the appellant] and Ms Brooks.’
In sentencing the appellant, her Honour said:
Your matter proceeded through the committal stream initially being listed in May 2018 for committal but perhaps fortunately was not reached. In July and August of this year your co-offender, Ms Brooks, made a statement to police outlining both of your involvement in the offending. This was significant as there was no other direct evidence against you. You were not known to the victim and the events transpired at a house frequented by a number of persons for the purpose of using drugs. There were question marks surrounding admissibility of an identification made by the victim via Facebook. Soon after provision of Ms Brooks’ statement you indicated your intention to plead guilty. The victim was not cross-examined. The prosecution stated, very fairly, that this was an early plea.[10]
[10]Reasons [13].
Brooks is older than the appellant, but her criminal history is less extensive, she having faced arson and dishonesty offences in the Children’s Court and resisting and hindering police in the adult jurisdiction. Like the appellant, she has never received a sentence involving custody.
In my view, having regard in particular to the discount for cooperation and to the significant differences in role identified by the judge, it was reasonably open to her Honour to differentiate between the appellant and Brooks as she did. This ground fails.
Ground 3: manifest excess
As noted earlier, the appellant contends that both the total effective sentence and the non-parole period are manifestly excessive. Particular reliance is placed on his youth and on what was accepted to have been an early plea of guilty.
In my opinion, the sentence was within the range reasonably open to her Honour, proper weight being given to the mitigating factors on which the appellant could rely. This was, in my view, very serious offending. I refer in particular to the false imprisonment and the armed robbery.
As to the false imprisonment, its objective gravity was increased by the matters identified by the judge, namely, that it was premeditated; the victim was lured to the house on false pretences; and the appellant’s disguise ‘immediately elevated the level of fear for the victim’.[11] Thereafter, for a period of approximately two hours, the victim was held prisoner. The assaults (to which the intentionally cause injury charge related) were:
accompanied by the threat of further violence including by way of the brandishing of the meat cleaver along with what must have been terrifying threats of cutting off parts of his body, burning him and disposing of his body in the bush.[12]
[11]Reasons [3].
[12]Ibid [15].
The armed robbery, although it took place before the period of imprisonment ended, was a very serious offence in its own right. As the judge said, the appellant held the meat cleaver to the victim’s back in order to force him to open his car, and then held the cleaver to the victim’s face when making demands for his bankcard and PIN. The victim complied with this request ‘fearing for his life’.[13]
[13]Ibid [7].
The judge expressly took into account the appellant’s age
and particularly the sentencing consideration concerning young offenders. In particular the fact that rehabilitation must be a greater focus.[14]
At the same time, her Honour accepted the prosecutor’s submission that the weight to be given to those considerations would be lessened in view of the seriousness of the offending. To approach the sentencing task in this way was in accordance with well-established principle.[15]
[14]Ibid [26].
[15]See, eg, Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA); Hoang v The Queen [2018] VSCA 86, [37] (Priest and McLeish JJA).
Also relevant, in my view, was the appellant’s significant criminal history, which her Honour described in these terms:
Your inability to finish school and to work consistently is no doubt a reflection of your increasing drug use during those years. You commenced with cannabis using it daily at age 14, methamphetamine at 15 years of age and which you were using regularly until 18, alcohol abuse at 18 and heroin from 19 until your arrest. That dangerous slope no doubt saw you spiralling out of control at the time of this offending. While it offers no excuse at all for commission of violent offences such as these it paints a backdrop to your life at that point.
Your drug use is also reflected in your criminal history. Although a young man, 20 at the time of these offences, you have a reasonably significant prior record. You have been dealt with in the Children's Court on six occasions since 2011 for relevant offences including assault, assault in company, possession of weapons, burglary, five charges of robbery, criminal damage and contravening a family violence order. Dispositions imposed on you included a youth attendance order and youth supervision order with attached conditions directed at your rehabilitation. You breached the youth supervision order and although there was a three year gap between your last court appearance and the commission of these offences, clearly the rehabilitation was unsuccessful in the long term.[16]
[16]Reasons [20]–[21].
As noted earlier, the appellant initially denied any involvement in the offending and it was not until Brooks made a statement to police outlining his involvement that he indicated that he would plead guilty. The prosecution accepted that this was an early plea. At the same time, the judge was doubtful whether the plea was ‘a true reflection of remorse’.[17] As her Honour pointed out, even during a significant period of remand, he did not offer an admission of responsibility. Nevertheless, her Honour accepted that he should receive the benefit of the remorse expressed more recently to a psychologist.
[17]Ibid [17].
This ground also fails.
Ground 2: aggregate sentence
In Fitzpatrick v The Queen (‘Fitzpatrick’),[18] the appellant faced six charges (persistent contravention of a family violence intervention order, common assault, making a threat to kill, criminal damage and two charges of theft). As Priest JA pointed out in granting leave, the court in that case expressed the view that an aggregate sentence may not be appropriate where an indictment contains only a small number of charges, or where the charges vary significantly in their seriousness (or manner of commission).[19] The Court went on to state that:
[18][2016] VSCA 63 (‘Fitzpatrick’).
[19]Ibid [48] (Weinberg AP, Priest and Beach JJA).
It must be said, however, that the decision to impose an aggregate sentence in the particular circumstances of this case gives rise to some concern. Section 9(1) of the Sentencing Act 1991 permits such a sentence to be imposed, in the following circumstances:
If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
Section 9(2) provides that the term of an aggregate sentence of imprisonment imposed in accordance with s 9(1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences, had the court imposed a separate sentence in respect of each of them.
Section 9(4) provides that if a court imposes an aggregate sentence of imprisonment in respect of two or more offences, the court is not required to identify separate events giving rise to specific charges and is not required to announce the sentences that would have been imposed for each offence had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively.
Aggregate sentences were originally introduced in order to simplify the task of sentencing for multiple offences, especially where orders for concurrency, partial concurrency, and cumulation could become complex and productive of error.
In their original form, aggregate sentences were held to require the sentencing judge to identify, at least in general terms, the constituent notional sentences and notional orders for concurrency and cumulation that went to make up the aggregate sentence as a whole.
The current form of s 9, and particularly s 9(4), reflects a legislative desire to overcome the difficulties recognised by this Court in cases such as Felton and Grossi.
With great respect to the sentencing judge, we note the comments by Professor Freiberg to the effect that an aggregate sentence may not be appropriate where an indictment contains only a small number of counts, or where the counts ‘vary significantly in their seriousness or the manner in which the offences were committed’. This was, in our view, just such a case. It was not a case in which an aggregate sentence should have been imposed.[20]
[20]Ibid [42]–[48] (citations omitted). See also Kerapa v The Queen [2017] VSCA 56, [12] (Redlich and Santamaria JJA); DPP v Rivette [2017] VSCA 150, [87] (Ashley and Priest JJA) (‘Rivette’); DPP v Frewstal Pty Ltd (2015) 47 VR 660, 670 [44] (Maxwell P).
The appellant’s submission relied in particular on the following passage from the judgment of Ashley and Priest JJA in Director of Public Prosecutions v Rivette (‘Rivette’):
Fourth, s 9(1) is permissive in character. A judge may impose an aggregate sentence if the pre-conditions for imposing such a sentence are present. In the ordinary course, an exercise of judicial discretion can only be impugned successfully in reliance upon principles stated in House v The King.
Fifth, to say that a statutory discretion is unfettered does not, however, mean that it is in substance unreviewable.[21]
[21][2017] VSCA 150, [84]–[85] (citations omitted) (emphasis added).
In answer to questions from the court, counsel for the appellant conceded — properly, in my view — that the power in s 9(1) was enlivened. That is, the ‘pre-conditions for imposing such a sentence’ were present. He maintained, however, that the effect of the decision in Rivette was to establish a rule of law that the power could not lawfully be exercised in a case of the kind there defined, that is, where
[t]here were relatively few charges, they were distinct in character, and one of them involved much more serious offending than the others.[22]
[22]Ibid [89].
The present case was said to have all of those features. Counsel drew attention to the statement by Ashley and Priest JJA in Rivette that, had it been necessary for them to decide, they would have held that the judge had erred in imposing an aggregate sentence in such a case ‘because the judge acted upon a wrong principle.’[23]
[23]Ibid.
There is obvious force in this argument, given what was said in Rivette. For all of the reasons given in Fitzpatrick and Rivette, this was not an appropriate case for an aggregate sentence. In the end, however, I find it unnecessary to decide whether that constituted specific sentencing error. Assuming for the purposes of s 281(1)(a) of the Criminal Procedure Act 2009 that there was an error in the sentence, I am wholly unpersuaded that a different sentence should be imposed.
For the reasons given earlier, this was very serious offending. The false
imprisonment and armed robbery were particularly serious. Given that the latter carries a maximum penalty of 25 years, a total sentence — for all four offences — of four years and eight months’ imprisonment is unimpeachable.
For obvious reasons, judges should be careful to ensure that the aggregate sentence power is reserved for cases of the type described in the authorities. In all other cases involving multiple offences, the sentence for each offence must be considered separately — having regard to the applicable maximum and the relevant circumstances — and questions of totality must then be addressed through orders for cumulation.
PRIEST JA:
For the reasons given by Maxwell P, whose judgment I have had the advantage of reading in draft, I agree that the appeal should be dismissed.
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