Collins (a pseudonym) v The Queen

[2018] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0248

CARL COLLINS[1]

v

THE QUEEN

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

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JUDGES:	OSBORN, WHELAN AND BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2018
DATE OF JUDGMENT:	26 April 2018[2]
MEDIUM NEUTRAL CITATION:	[2018] VSCA 131
JUDGMENT APPEALED FROM:	R v Collins (Unreported, County Court of Victoria)

[2]This is a revised version of the oral reasons delivered on 26 April 2018.  It has been edited to protect the identity of the applicant.

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SENTENCING – Appeal – Handling stolen goods – Arson – Whether sentence manifestly excessive – Whether applicant’s assistance to authorities, guilty plea and prospects of rehabilitation adequately reflected in individual sentences imposed – Appeal allowed – Applicant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Clark	James Dowsley & Associates
For the Respondent	Mr B Sonnett	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA:

1. The applicant is aged 28.  On 4 October 2017 he pleaded guilty to one charge of handling stolen goods, one charge of arson and two related summary offences of driving whilst disqualified. 

1. On 2 November 2017 he was sentenced in the County Court as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Handling stolen goods [Crimes Act 1958 s 88(1)]	15 years’ imprisonment	2 years 6 months	6 months
2	Arson [Crimes Act 1958 s 197(1) & (6)]	15 years’ imprisonment	5 years	Base
Summary Charge 1	Drive whilst disqualified [Road Safety Act 1986 s 30(1)]	First offence: 30 penalty units or 4 months’ imprisonment Subsequent offence: 240 penalty units or 2 years’ imprisonment	1 month	Nil
Summary Charge 4	Drive whilst disqualified	First offence: 30 penalty units or 4 months’ imprisonment Subsequent offence: 240 penalty units or 2 years’ imprisonment	1 month	Nil
Total Effective Sentence:		5 years 6 months’ imprisonment
Non-Parole Period:		2 years 6 months
Pre-sentence Detention Declared:		281 days
6AAA Statement:		Not declared

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

1.The individual sentences, total effective sentence, and non-parole period are each manifestly excessive in the circumstances of the case.

Particulars

(a)The weight said to be given by the learned sentencing judge to the applicant’s assistance to authorities is not reflected in the individual sentences imposed.

(b)The weight said to be given by the learned sentencing judge to the applicant’s plea of guilty is not reflected in the individual sentences imposed.

(c)The weight said to be given by the learned sentencing judge to the applicant’s prospects for rehabilitation is not reflected in the individual sentences imposed.

(d)The sentences imposed are not consistent with current sentencing practices.

2.The non-parole period imposed offends against s 5(2AA) Sentencing Act 1991 in that it is disproportionately short.

1. For the reasons which follow I would grant leave to appeal and allow the appeal.  I would substitute a sentence of 3 years as the base sentence on the arson charge and 18 months on the handling stolen goods charge of which 4 months should be cumulated upon the arson charge resulting in a total effective sentence of 3 years and 4 months.  I would fix a non-parole period of 20 months.

1. In my view the sentence imposed by the sentencing judge is manifestly excessive having regard to the applicant’s cooperation with investigating police viewed in the context of the other matters referred to in the particulars given of proposed ground 1 of appeal.

Circumstances of the offending

1. The applicant participated in the activities of a criminal organisation involving theft and arson.  I will not detail the offending further in these reasons in order to protect the applicant’s identity.

1. Subsequently he cooperated with police and provided information which led to the charging of a number of co-offenders. 

1. On his plea hearing the applicant gave an undertaking to give evidence on being called to do so in accordance with the statements that he had made to police.  This undertaking remains live.

The judge’s reasons for sentence

1. In her reasons for sentence the sentencing judge set out the circumstances of the offending.  She then said:

Your own offending is clearly serious, and denunciation and deterrence are important factors in any sentences I impose.  However, your early plea and your subsequent actions, despite fear for your own safety, in making statements, are indicative of remorse, and you have indeed facilitated the course of justice.  You are entitled to an appropriate discount of your sentence in relation to your offending as a result of this.

Cases in relation to assisting in the manner that you have, indicate the need to encourage others to assist as you have done.  I consider that in all the circumstances, you are entitled to a substantial discount on the sentence I would otherwise have imposed but for your cooperation, and I will therefore reduce it substantially.

1. Her Honour then turned to matters personal to the applicant.  As I have said the applicant is aged 28.

1. In summary the judge accepted that after the initial breakdown of the marriage of the applicant’s parents, he had been raised by his mother and stepfather in a stable environment until some six years earlier when he lost his home and his employment. 

1. The applicant then commenced using methamphetamine on an increasing basis and moved to live with a partner who encouraged his substance abuse.  His methamphetamine use had peaked at approximately half a gram daily, up to the age of 25 and 26. 

1. The applicant has a number of prior convictions arising out of his drug use.  As her Honour noted he had been subjected to terms of imprisonment and a community corrections order but these had not prevented further offending. 

1. Her Honour noted that much of the prior offending consisted of breaches of orders, driving whilst disqualified, breaching bail, possession of firearms, drugs and various other driving offences.  Her Honour concluded:

Your record is one of numerous offences of a far less serious nature than the one for which I am to sentence you today. 

1. Her Honour then returned to the fact of the applicant’s cooperation:

Your actions in my view in admitting your responsibility in these matters and in cooperating, indicate that you have perhaps now reached a stage where you have good prospects of rehabilitation, and it is to be hoped that you are able, once you have been sentenced and have completed your sentence, to make the most of those opportunities.

1. She then referred to the need for a sentence reflecting denunciation of the applicant’s conduct, and the need for general deterrence.  On the other hand she considered that given the applicant’s eventual admissions and assistance to police that specific deterrence was not a material consideration.  After referring to the maximum penalties for arson and theft, she then imposed the sentences tabulated above. 

1. She then said:

I cannot possibly make a declaration pursuant to s 6AAA, because it would not get anywhere near the sentence that I have imposed, so really I think I just have to decline to make it.

The parties’ submissions

1. The applicant’s primary submission is that viewed together with his plea of guilty at an early stage, and the judge’s finding as to his prospects of rehabilitation, the applicant’s sentence cannot be regarded as reflecting an adequate discount for cooperation and is manifestly excessive. 

1. The respondent accepts that the applicant was entitled to a discount for cooperation and acknowledges that in this case it should be very substantial.  The respondent’s counsel has today spoken to the prosecutor on the plea who is also the prosecutor on the trial of the co-accused.  The prosecutor confirms that the applicant continues to be a vital witness in the prosecution of the co-accused. 

Analysis

1. It must be accepted that the test requiring to be satisfied with respect to manifest excess is a stringent one. 

1. It must also be accepted that there is no standard discount for cooperation by an informer.  In R v Johnston,[3] Nettle JA said:

… While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases.  For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.   In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough.  Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.

[3][2008] VSCA 133.

1. I have come to the view, that the total effective sentence imposed upon the applicant simply cannot be regarded as adequately reflecting an appropriate discount for cooperation in his case. The combination of factors supporting this conclusion are as follows:

(a)       The quality and value of the information

1. The prosecutor accepted that the applicant’s cooperation was of high value.  A letter of comfort acknowledging this fact was provided to the judge.  The applicant had provided eye witness information clearly identifying his co-offenders and had done so at an early stage.  He was the only one of a number of people implicated in the offending who had given statements against co-accused.  The offending in issue involved a serious arson.  The applicant’s account of the offending was circumstantial and credible and was of material assistance to the investigators.  In consequence of the utility and high value of the information to the prosecution the prosecutor submitted to the sentencing judge:

Arson would normally get a lengthy term of imprisonment, we don’t call for that.[4]

In my view this concession was properly made. 

[4]Transcript 34.

(b)      The consequences for the informer

1. The information related to activities of members of a criminal organisation.  The applicant was threatened with violence and his friend was bashed by members of a criminal organisation.  There can be no doubt that as a result of informing, the applicant has placed himself in danger within the prison system and as a result will be likely to undergo his incarceration in circumstances more onerous than would ordinarily be the case.  He will also remain at long term risk of retribution after his release from custody.  The applicant faces this risk from more than one source.  The real risk which the applicant has accepted reinforces the need to allow a material reduction in sentence for his cooperation. 

(c)       General encouragement of cooperation with police investigators

1. The cooperation of witnesses with police is to be encouraged.  Criminal organisations deliberately seek to instil fear of the consequences of cooperation with police.  As a corollary it is necessary to recognise and reward cooperation cases such as this, in order to undermine the culture which seeks to prevent cooperation from taking place. 

(d)      Rehabilitation

1. As the judge found, the applicant’s cooperation supported a conclusion that he had good prospects of rehabilitation and counted against the imposition of a sentence reflecting a need for specific deterrence.

1. The case law establishes that a discount of 50 percent or more may be appropriate in cases of informer cooperation.  On any view this is a very strong case of such cooperation.

1. Further I am disquieted by the sentencing judge’s failure to make a s 6AAA statement upon sentencing, as she was required to do.  The terms in which she explained the failure to do so seem to me, with respect, to reflect confusion and a failure to grapple with the extent to which the applicant was entitled to discounts first for pleading guilty and second for cooperation.

1. When the sentences ultimately imposed by her Honour are read in the context of her reasons as a whole, they do not, in my respectful view, give effect to the substantial discount which she initially accepted in principle was appropriate in this case.  They are themselves high when assessed against the context of current sentencing practice.

1. Accordingly I would grant leave to appeal, allow the appeal and re-sentence the applicant as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Handling stolen goods [Crimes Act 1958 s 88(1)]	15 years’ imprisonment	18 months’ imprisonment	4 months
2	Arson [Crimes Act 1958 s 7(1) & (6)]	15 years’ imprisonment	3 years	Base
Summary Charge 1	Drive whilst disqualified [Road Safety Act 1986 s 30(1)]	First offence: 30 penalty units or 4 months’ imprisonment Subsequent offence: 240 penalty units or 2 years’ imprisonment	1 month	Nil
Summary Charge 4	Drive whilst disqualified	First offence: 30 penalty units or 4 months’ imprisonment Subsequent offence: 240 penalty units or 2 years’ imprisonment	1 month	Nil
Total Effective Sentence:		3 years and 4 months’ imprisonment
Non-Parole Period:		20 months
Pre-sentence Detention Declared:		456 days
6AAA Statement:		8 years with non-parole period of 5 years

1. I would declare pursuant to s 5AB of the Sentencing Act that the Court is imposing a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the prosecution of offences and cause that declaration to be noted in the records of the Court. 

1. I would declare pursuant to s 6AAA(2) of the Sentencing Act that but for the applicant’s pleas of guilty and his cooperation I would have imposed a total effective sentence of 8 years with a minimum non-parole period of 5 years’ imprisonment. 

1. I would also declare the pre-sentence detention to be 456 days not including today and direct that that declaration be noted in the records of the Court. 

WHELAN JA:

1. I agree.

BEACH JA:

1. I also agree.