Dawson v The Queen
[2015] VSCA 166
•25 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0050
| ANDREW DAWSON | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2015 0060
| DAMIEN STEWART | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 June 2015 |
| DATE OF JUDGMENT: | 25 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 166 |
| JUDGMENT APPEALED FROM: | DPP v Dawson (Unreported, County Court of Victoria, Judge Maidment, 23 January 2015) |
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CRIMINAL LAW – Sentence – Armed robbery – Sentence of 22 months’ imprisonment together with CCO of 24 months – Whether term of imprisonment in addition to CCO manifestly excessive – Whether tension between Sentencing Act 1991 s 5(4C) and current sentencing practices – Proof of offence derived from admissions – Failure to apply Doran discount – Re-sentencing by reducing individual sentence and making orders for cumulation – Total effective sentence unaltered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant, Dawson | Ms F H Todd | James Dowsley & Associates |
| For the Applicant, Stewart | Ms N D Kaddeche | Ms Melinda Walker |
| For the Respondent | Mr P B Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA:
Introduction
On 16 October 2014, Andrew Dawson pleaded guilty in the County Court to one charge of armed robbery and one charge of driving an unregistered motor vehicle. On the same day, Damien Stewart (a co-offender in respect of the armed robbery) pleaded guilty to one charge of armed robbery, one charge of trafficking in a drug of dependence (methylamphetamine), two charges of possessing a drug of dependence (methylamphetamine and cannabis), two charges of possessing a prohibited weapon, one charge of possessing a controlled weapon and one charge of dealing with property suspected of being the proceeds of crime. Following plea hearings conducted on 16 October, 27 November, 12 December 2014[1] and 22 January 2015, Dawson and Stewart were sentenced on 23 January 2015 as follows:
[1]On 12 December 2014, both matters were adjourned for sentencing on 19 December 2014. However, on 19 December 2014, both matters were adjourned to 22 January 2015 so as to give the parties an opportunity to make submissions about the effect of the guideline judgment in Boulton v The Queen [2014] VSCA 342 (‘Boulton’) that was then anticipated would be delivered on 22 December 2014. Boulton was delivered as anticipated on 22 December 2014, and the parties made submissions about its effect on 22 January 2015, before sentences were pronounced by the judge on 23 January 2015.
Andrew Dawson
Charge on Indictment Offence Maximum Sentence Cumulation 2 Armed robbery [Crimes Act1958 s 75A(1)] 25 years
[Crimes Act1958 s 75A(2)]22 months and 2 year CCO to commence upon completion of imprisonment Base Summary Charge 3 Driving an unregistered motor vehicle [Road Safety Act1986 s 7(1)(a)] 25 penalty units [Road Safety Act1986 s 7(3)(a)(i)] Convicted and discharged N/A Total Effective Sentence: 22 months and 2 year CCO to commence upon completion of imprisonment Non-Parole Period: N/A Pre-sentence Detention Declared: 248 days 6AAA Statement: 4 years 6 months imprisonment with a non-parole period of 3 years Other orders: Forfeiture order, Disposal Order
Damien Stewart
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence (methylamphetamine)
[Drugs, Poisons and Controlled Substances Act1981 s 71AC]15 years
[Drugs, Poisons and Controlled Substances Act1981 s 71AC]8 months and 2 year CCO to commence upon completion of imprisonment. Concurrent 2 Armed robbery [Crimes Act1958 s 75A(1)] 25 years
[Crimes Act1958 s 75A(2)]22 months Concurrent 3 Possession of a drug of dependence (methylamphetamine)
[Drugs, Poisons and Controlled Substances Act1981 s 73]Where the court is satisfied that the offence was not committed for any purpose relating to trafficking: 30 penalty units or 1 year
or
In any other case: 400 penalty units or 5 years
[Drugs, Poisons and Controlled Substances Act1981 s 73]1 month Concurrent 4 Possession of a drug of dependence (cannabis) Not related to any trafficking purpose: 30 penalty units or 1 year
or
In any other case: 400 penalty units or 5 yearsConvicted and discharged N/A Summary Charge 4 Possession of a prohibited weapon (taser) [Control of Weapons Act 1990 s 5AA] 2 years or 240 penalty units
[Control of Weapons Act 1990 s 5AA]2 months Concurrent Summary Charge 7 Dealing with property suspected of being proceeds of crime ($1,700 cash and various property) [Crimes Act1958 s 195] 2 years [Crimes Act1958 s 195] 7 months Concurrent Summary Charge 8 Possession of a prohibited weapon (double bladed knife and laser pointer) 2 years or 240 penalty units 3 months Concurrent Summary Charge 10 Possession of a controlled weapon (cattle prod)
[Control of Weapons Act 1990 s 6(1)]1 year or 120 penalty units
[Control of Weapons Act1990 s 6(1)]1 month Concurrent Total Effective Sentence: 22 months and 2 year CCO to commence upon completion of imprisonment Non-Parole Period: N/A Pre-sentence Detention Declared: 115 days 6AAA Statement: 4 years 6 months imprisonment with a non-parole period of 3 years Other orders: Forfeiture Order, Disposal Order, Forensic Sample Order
In sentencing Stewart, the judge said that he imposed the community correction order (‘CCO’) ‘in respect of all of the offences concurrently’.[2] However, the Record of Orders signed by the judge relates the CCO only to charge 1 on the indictment. Notwithstanding this discrepancy, it is plain that the judge sentenced Stewart (like Dawson) to a total effective sentence of 22 months’ imprisonment followed by a two-year CCO that is to commence upon the completion of the 22 month term.
[2]DPP v Dawson [2015] VCC 39, [86] (‘Reasons’).
Dawson and Stewart each seek leave to appeal against their sentences. Dawson seeks leave to appeal on the following grounds:
1.The sentence is manifestly excessive, particularly in view of the following matters:
(a) the applicant had no prior and no subsequent offending;
(b) that he came before the Court for the first time at 45 years old;
(c) that the plea was entered at the earliest possible opportunity;
(d) that there was strong family (and partner) support;
(e) the applicant’s strong history of employment;
(f)the offending was clearly in response to an immediate crisis in accommodation;
(g)the applicant made full admissions and co-operated with police;
(h) the applicant’s good prospects of rehabilitation;
(i)the applicant expressed remorse during his police interview held on the day of offending;
(j)the applicant spontaneously expressed strong empathy for the victims of the offending;
(k)the evidence (Dr Cunningham and the Corrections assessor) that he was a low risk of reoffending;
(l)the fact that (as the Court made explicit in Boulton) a CCO is a punitive order and has significant ramifications for the liberty of the subject of it.
2.The sentencing judge erred in his assessment that a CCO was not capable of giving effect to general deterrence in the circumstances of this offence.
3.The sentencing judge erred in proceeding by reference to ‘current sentencing practices’ and did not apply the legislative test in s 5(4C) of the Sentencing Act 1991.
4.The sentencing judge failed to take into account a relevant sentencing consideration, namely the risk of a lengthy term of imprisonment having counterproductive effects for the offender and the community.
Stewart seeks leave to appeal against his sentence on the following grounds:
1.The sentencing judge erred in that he overlooked the significance of the disclosures/admissions made by the applicant.
2.The sentencing judge erred in the application of Parity.
3.The sentencing judge erred in not considering the detrimental effects of the prison environment on a first time prisoner.
4.The sentencing judge erred in his consideration of current sentencing practices and the applications of s 5(4) and 5(4C) of the Sentencing Act1991.
5.The sentencing judge erred in his assessment that a CCO was an insufficient sentence, reflective of both general and specific deterrence in this case.
6. The sentencing judge offended the totality principles.
7.The sentencing judge erred by imposing individual sentences and a total effective sentence that were all manifestly excessive, considering:
(i) the applicant’s early guilty plea;
(ii) demonstrated rehabilitation (post offending conduct);
(iii) good rehabilitative prospects;
(iv) assessment as low risk of reoffending; and
(v) the nature and level of the trafficking charge.
Circumstances of the offending
At the time of the offending Dawson and his partner, Allison Thomas, had been living in a rented motel room for about 12 months. The rent for the room was $350 week and they had fallen behind on their rental payments.
On 9 April 2014, Marion Ritchie, the manager of the motel, gave Dawson a letter demanding that he pay the outstanding rent of $5,317.15 by Sunday 18 May 2014 or move out.
On 19 May 2014, Ms Ritchie attended Dawson’s motel room to follow up on the letter as no payment had been made. The couple told her that Dawson had sold a block of land in Echuca and that the money had not yet gone into his bank account but would be available for him to withdraw the next day. Ms Ritchie said that was fine and that she wanted full payment by 11:00am.
At approximately 11:15am on 20 May 2014, Ms Ritchie attended Dawson’s motel room. Ms Thomas answered the door and said that Dawson had gone to the bank to get the money.
In fact Dawson, in company with Stewart, had driven his car to the nearby Royal Hotel and parked at the end of a laneway several hundred metres from the hotel.
Stewart entered the Royal Hotel and played the pokies winning $858.00. While playing the pokies, he made observation of the hotel at Dawson’s request. Stewart returned to the car and informed Dawson that there was a young male and two females in the hotel and that it was fairly quiet.
At approximately 11:35am, Dawson entered the hotel wearing a balaclava and armed with an imitation pistol. The pistol and balaclava belonged to Stewart. Dawson had asked Stewart on an earlier occasion if he could borrow them to rob the pokies.
Dawson approached the cashier desk where Ms Hayley Wilson was working alone. Ms Wilson was startled and screamed.
Dawson placed a blue insulated shopping bag on the counter and calmly said, ‘It’s ok, just put the money in the bag’. Ms Wilson opened the register and put the money in the bag. As she was doing so, Dawson said, ‘And the money underneath’. Ms Wilson replied, ‘There is no money’ and lifted the cash drawer to show him. She placed the whole cash drawer into the bag.
Dawson took the bag and returned to his car where Stewart was waiting. They drove back to Dawson’s motel room and counted the cash. A total of $2,820 was stolen. Ms Thomas was at home and Dawson told her that he had been to the bank.
At about noon, Ms Ritchie attended Dawson’s motel room to follow up on the outstanding rent. Dawson told her that he was just coming but that he had dropped the money on the floor and Allison was counting it for him.
Ms Ritchie telephoned Knox police station as she had decided to ask Dawson to leave the motel and was concerned he might become aggressive. The police told her that an armed robbery had just been committed at the Royal Hotel and asked her to let them know if Dawson paid in cash.
About five minutes later Dawson attended the bar and gave Ms Ritchie cash totalling $3,000. He left, telling her that he would be back later with the rest of the money. Ms Ritchie then rang the police and told them that he had paid with cash.
Later that day Dawson and Stewart were intercepted by police, arrested and remanded into custody.
At the time of his arrest Stewart had a small quantity of methylamphetamine and a taser in his pocket (charge 3 and summary charge 4).
The Police searched Stewart’s bedroom and found the imitation firearm and balaclava used in the armed robbery as well as the hotel’s cash drawer. They also found a bud of cannabis (charge 4), a laser pointer and a double bladed knife (summary charge 8), a cattle prod (summary charge 10) and $1,700 cash and various items of property suspected of being the proceeds of crime (summary charge 7).
Dawson was interviewed by police. He told them that he committed the armed robbery on his own. He claimed he met up with Stewart later that day and gave him the balaclava and imitation firearm.
Stewart was interviewed by police. He told them that Dawson had told him about his outstanding rent and that he had tried to help him by winning money on the pokies. Dawson had told him of his plans to commit an armed robbery at the Royal Hotel, Stewart said he ‘didn’t want [Dawson] to have to do [it], but [he] couldn’t stop him from doing it’. Stewart admitted that he had given Dawson the balaclava and imitation pistol in the days or weeks prior to the armed robbery, and that he knew what Dawson was going to use them for, and that Dawson had these items with him. Stewart admitted taking the balaclava and gun from Dawson after the robbery.
Stewart also admitted to having one or two points of methylamphetamine (ice) in his pocket at the time of his arrest. He admitted using a small amount of ice daily and that he sold about 3.5 grams of it every two days (charge 1). He admitted that the $1,700 in cash found in his bedroom was ‘most likely’ from selling drugs and that the property suspected of being the proceeds of crime had been given to him in exchange for drugs.
Ultimately, Dawson pleaded guilty at a Committal Case Conference at the Magistrates’ Court on 15 August 2014; and Stewart pleaded guilty at a Further Committal Mention at the Magistrates’ Court on 18 September 2014.
The judge’s reasons
The judge commenced his reasons for sentence with a description of the applicants’ offending. The judge noted that while Dawson (who was 45 years of age) had no prior convictions, Stewart (who was 29 years of age) had some limited prior convictions for possessing and using drugs, possessing a controlled weapon and criminal damage. As to admissions and remorse, the judge said:
To your credit, particularly you Mr Dawson, I think you immediately expressed the concern that you had for the fear that you would have instilled by your conduct. It is very much to your credit that each of you made admissions to the police when interviewed and have expressed remorse. I accept that you are genuinely remorseful for what took place.[3]
As to Stewart’s admission concerning trafficking in methylamphetamine, the judge said:
You, Stewart, also when interviewed, admitted trafficking in methylamphetamine. Although there might have been some evidence to support that, it is doubtful whether you had been proceeded against for trafficking, had it not been for the admissions that you made. It is I think very much to your credit that you admitted offences about which the police had inadequate evidence to proceed against you, including perhaps your involvement in the armed robbery itself. Those are mitigating factors, but of course they have to be balanced against the seriousness of the offending conduct.[4]
[3]Ibid [8].
[4]Ibid [9].
The judge then dealt with the background and personal circumstances of each applicant in some detail. In respect of Dawson, the judge noted that he was a 45 year old man with no prior convictions and a good work history. The judge noted that Dawson had become addicted to ice. Even though Dawson had previously lost his bricklaying business, this did not stop him working. The judge also noted that Dawson had suffered an accident in the early part of 2013 which had put him off work and that this accident together with Dawson’s ice use had made it difficult for him to hold down a regular job. Hence, as the judge described it, Dawson ended up in rented accommodation with a substantial debt in unpaid rent. It was, as the judge said, against that background that Dawson committed the armed robbery.[5]
[5]Ibid [13]–[20].
The judge found Dawson to be ‘at a low risk of future violent offending’ and that such risk that existed could be managed through the treatment of an adjustment disorder from which Dawson suffered, and also by dealing with Dawson’s drug abuse problems.[6] In addition, the judge concluded that Dawson’s prospects of rehabilitation were good, having regard to Dawson’s record to date. The judge also stated that Dawson’s prospects of rehabilitation were to be encouraged.[7]
[6]Ibid [23].
[7]Ibid [25].
With respect to Stewart, the judge noted that he had abused alcohol and recreational drugs over quite a significant period of time from his teenage years onwards. The judge also noted that Stewart suffered from severe back pain since July 2011, having sustained a prolapsed disc at about that time.
The judge noted that Stewart had become ‘somewhat addicted’ to playing poker machines and, while that might have been an escape from his back pain, this had impacted on Stewart’s capacity to maintain himself. Further, the judge accepted that Stewart had exhibited signs of high anxiety and depression, had suffered from suicidal ideation and low mood levels, and that these were conditions which would require some treatment.[8]
[8]Ibid [41].
The judge accepted that Stewart had shown a commitment to rehabilitation, although the judge said he was a little more guarded about this issue in Stewart’s case than he was in Dawson’s case. That said, the judge accepted that Stewart’s prospects of rehabilitation were ‘with the rider of being guarded, fairly good.’[9]
[9]Ibid [48].
The judge also noted Stewart’s co-operation with the police, and that he (like Dawson) had pleaded guilty at the first reasonable opportunity. While the judge noted that there had been a little bit of delay in the plea in Stewart’s case, he concluded that Stewart was entitled to a full discount for his plea of guilty — the judge accepting that Stewart was remorseful for what had occurred.[10]
[10]Ibid [50].
As to parity, in sentencing Stewart, the judge said:
There might be an argument for imposing a higher sentence on you, because of your participation in other offending conduct, in particular trafficking in methylamphetamine which I regard is a very serious offence. However, I think it is low end trafficking and I think for that reason, it can be dealt with more leniently than might otherwise might have been the case.
Trying to balance things as well as I can in your case, my inclination is to impose a sentence, overall sentence, which is the same length as that imposed on Mr Dawson, namely 22 months. You will have to serve a little bit longer because you do not have as much pre-sentence detention, but I am only persuaded that the sentence should be as low as that, because it seems to me that there are good grounds for promoting your rehabilitation and incorporating such further punishment as would be appropriate in a community correction order over a period of two years.[11]
[11]Ibid [53]–[54].
In sentencing the applicants, the judge said that the conduct that constituted the armed robbery was such as to require a substantial term of imprisonment.[12] The judge then dealt with Boulton and current sentencing practices in some detail. The judge said:
[12]Ibid [25].
I had adjourned the further plea in this matter to enable that decision [Boulton] to be handed down and considered. I have heard further submissions from the prosecution in light of that judgment. I have received a written outline of submissions from Ms Todd and heard oral argument yesterday, which I found I have to say, very helpful.
Ms Todd presented a very strong plea based on the proposition that all of the sentencing principles could be met by imposing a prison sentence that was time served and no more in your case and Ms Kaddeche submitted similarly on your behalf, Mr Stewart.
The prosecution had previously indicated that they regarded any sentence that incorporated community correction orders as outside the range of sentences that were open to me. In other words, the only sentence that I could lawfully impose would be one involving a substantial custodial sentence, of a kind that would be well beyond that which would enable me to impose a community correction order.
Both Ms Todd and Ms Kaddeche argued that the landscape had changed so dramatically since the matter of Bolton v R had been handed down, that the prosecution submission was no longer. Nevertheless the prosecution maintained its position, having submitted previously that the offence of armed robbery was particularly serious for a number of reasons, which I will not repeat, all of which were I think soundly based.
I have not found it easy to determine the appropriate outcome in this case and I have given very careful thought to the submissions that were forcibly put on your behalf by each of you. There is no doubt I think, that it is still recognised that imprisonment is to be regarded as having a significant punitive and deterrent effect that transcends the imposition of a community correction order.
I am required, as I am by the law in this state, to take into account current sentencing practise. It is not always easy to identify current sentencing practise by reference to the facts of each individual case. I am of course entitled to look at other cases that have been dealt with by the Court of Appeal in this state to identify what current sentencing practise is for this kind of offence.
The range of current sentencing practise for armed robbery offences of this kind, would seem to me to be for persons who have pleaded guilty and who have either no or no significant or relevant prior convictions for similar offences. Something in the order of three and a half, perhaps four years. I indicate a rough estimate of the range.
But I think it may be necessary for me to descend into a little bit of the reasoning process that I have had to engage in because if that is the case, then — and I am required to sentence within the current sentencing practise, then I have to look at the degree to which it is possible to balance the competing need for meeting all sentencing considerations with the desirability of promoting your rehabilitation and it is not something which I can brush off. I am required by law to approach sentencing in that way and it seems to me that if I am right, that the sentencing range is somewhere like three and a half, four years head sentence on a plea, the non-parole period that might be set might be somewhere in the nature of two and a half years, something of that nature, which would permit your release on parole, subject to the discretion of the Parole Board after having served a total of two and a half years imprisonment.
If that is right, it seems to me as a matter of logic that a sentence which is now open to me, to impose up to two years imprisonment without parole and to couple that with a community correction order, that is to be regarded as having a punitive effect, as well as a rehabilitative intention and hopefully effect, is capable of meeting all sentencing considerations. It is through that process that I have arrived at the sentences that I foreshadowed.
I did contemplate whether it was necessary for me to impose a sentence of two years plus the time that you have served, in order to meet the need for punishment and general deterrence and denunciation. That might in some respects, have been regarded as a course that would have been more in tune with the prosecution's submissions. However, it seems to me on balance that a lesser period of incarceration is justified, having regard to the various mitigatory factors that I have outlined.
Also by imposing a sentence that is less than two years, I am entitled to impose a sentence that does not have a non-parole period and that maybe attractive in some respects in that it gives certainty to the time at which you will be commencing the community correction order. I think that the period of incarceration should be viewed by you, hopefully it will be, as not just a period of excruciating punishment, but an opportunity to participate if you can, I know places might be limited, in rehabilitative courses whilst you are serving a sentence.
As remand prisoners, you will not have been able to access the full range of rehabilitative courses that are available through the prison system. You probably will have heard at Marngoneet Prison, you may well have had some indication of the sort of rehabilitative courses and — programs that are available at that prison and it may be that you are fortunate enough to receive the benefit of one or more of those programs.
Be that as it may, I obviously cannot influence your attitude whilst you are in custody, however I am optimistic that each of you is motivated presently to rehabilitate yourselves and that you will seek out and hopefully obtain the benefit of such courses that are available through the prison system. I am also conscious that whatever courses you may or may not be able to access through the prison system, the delay before you commence your community correction order, for the purposes of your continued rehabilitation should not be too great, having regard to the other sentencing considerations to which I have referred.[13]
[13]Ibid [67]–[79].
Dawson’s application
Dawson’s complaints about the sentence imposed upon him may be summarised as follows. First, Dawson submits that the judge erred in his conclusion that a CCO on its own was not sufficient to give effect to general deterrence in the circumstances of Dawson’s offending.
Secondly, complaint is made about the judge sentencing by reference to current sentencing practices in the light of Boulton and s 5(4C) of the Sentencing Act 1991. It was contended that there was a tension between current sentencing practice and s 5(4C). The sentencing judge, it was said, had used current sentencing practice as a starting point in order to determine the correct sentencing disposition, and had thus fallen into error.
Thirdly, complaint is made that the judge failed to take into account ‘the risk of a lengthy term of imprisonment having counterproductive effects for [Dawson] and the community’.
Fourthly, it was contended that the sentence imposed upon Dawson is manifestly excessive when one has regard to the following matters:
(a) Dawson has no prior and no subsequent offending;
(b) Dawson came before the Court for the first time at 45 years old;
(c) the plea was entered at the earliest possible opportunity;
(d) there was and is strong family (and partner) support;
(e) Dawson’s strong history of employment;
(f)Dawson’s offending was clearly in response to an immediate crisis in accommodation;
(g) Dawson made full admissions and co-operated with police;
(h) Dawson’s good prospects of rehabilitation;
(i)Dawson expressed remorse during his police interview held on the day of offending;
(j)Dawson spontaneously expressed strong empathy for the victims of the offending;
(k)the evidence (Dr Cunningham and the Corrections assessor) that Dawson was a low risk of reoffending;
(l)the fact that (as the Court made explicit in Boulton) a CCO is a punitive order and has significant ramifications for the liberty of the subject of it.
Fifthly, complaint is made that his Honour did not make specific reference to the particular submissions, advanced upon the plea, why a prison sentence would not advance Dawson’s rehabilitation. The judge’s reasons disclose a very careful and considered analysis of the offending, and all of the matters relied upon by Dawson in mitigation and the need to impose the least punitive sentence on Dawson that would satisfy all of the purposes for which sentences are imposed. It is evident from the sentencing remarks that his Honour gave the most careful attention to the general question of Dawson’s rehabilitation. It was not necessary that he recite each of the particulars of the submission that a term of imprisonment should not be imposed.
There is simply no basis for asserting that the judge erred in his conclusions about current sentencing practices, or that the judge did not correctly apply s 5(4C) of the Sentencing Act, or that a term of imprisonment should not have been imposed in conjunction with a CCO.
The contention that the sentencing judge was constrained to impose a CCO cannot be sustained. The availability of the option of a CCO does not mean that the imposition of a custodial sentence is presumptively erroneous. It is a misconception to reason that because a CCO without a term of imprisonment would be within the sound exercise of a sentencing discretion, that the imposition of a term of imprisonment with or without a CCO is not. Reasonable minds will often differ as to whether in the circumstances of a particular case, a CCO or a combined CCO and term of imprisonment of two years or less will satisfy one of the purposes for which a sentence may be imposed, namely to punish the offender to an extent and in a manner which is just in all of the circumstances.[14]
[14]Hutchinson v The Queen [2015] VSCA 115, [17]–[18] (Ashley and Priest JJA).
The sentencing judge gave the most careful consideration to whether a CCO without a term of imprisonment was a disposition reasonably open. Applying the reasoning in Boulton, appellate intervention will not be warranted unless it can be shown that the only conclusion open was that a CCO without a term of imprisonment should be imposed. Section 5(4C) of the Sentencing Act 1991 does not dictate a different conclusion.
As the Court in Boulton recognised, s 5(4C) is the companion of s 5(4) which reflects the common law principle of parsimony. The new provision is simply declaratory of the task which the sentencing judge has always had to address — whether confinement is necessary in order to satisfy all relevant sentencing principles. If it is, what is the minimum confinement that is necessary? Where a CCO or a CCO combined with a term of up to two years’ imprisonment provides the judge with an additional sentencing option, that must be considered in that context. Boulton recognises that a court engaging in the deliberation now required by s 5(4C), may conclude that certain sentencing purposes such as deterrence, denunciation and community protection may not be sufficiently served by the making of a CCO and that, consistent with the principle of parsimony, the court must impose the shortest term of imprisonment necessary to achieve those sentencing purposes.
Senior counsel for the respondent disputed that there was any tension between s 5(4C) and current sentencing practice. He submitted that in asking the question posed in Boulton ‘is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option’,[15] the court must necessarily take account of current sentencing practice. We agree. Recognition that an offence of a particular level of seriousness has generally attracted sentences of imprisonment of a particular order should, as Boulton states, ‘mark the beginning, not the end, of the court’s consideration.[16]
[15]Boulton, [121]
[16]Ibid [115]
Senior counsel for the respondent, with customary fairness, did not maintain the argument advanced by the Crown on the plea that a CCO with two years of imprisonment was outside the range available. That concession was rightly made. We accept the thrust of his submission, however, that for this mid-range offending, a sentence of two years would be towards the lower end of the range.
Dawson’s complaint of manifest excess cannot be sustained. With respect, we think the sentence imposed by the judge was, in all the circumstances, well within the range of sentences available. But for the mitigatory factors that Dawson was able to call in aid (all of which were taken into account by the judge), this offending would have warranted a considerably longer term of imprisonment. Dawson’s application for leave to appeal against sentence must be refused.
Stewart’s application
Stewart’s complaints about the sentence imposed upon him may be summarised as follows. First, the judge erred in overlooking the significance of the disclosures and admissions made by Stewart.
Secondly, the judge is said to have ‘erred in the application of parity’.
Thirdly, it is contended that the judge erred in not ‘considering the detrimental effects of the prison environment on a first-time prisoner’.
Fourthly, the judge is said to have erred in his consideration of current sentencing practices and the application of ss 5(4) and 5(4C) of the Sentencing Act 1991.
Fifthly, it is contended that the judge erred in his assessment that a CCO was an insufficient sentence to take account of both general and specific deterrence.
Sixthly, complaint is made that the judge ‘offended the totality principles’.
Seventhly, there is a complaint that the individual sentences and total effective sentence imposed were manifestly excessive having regard to Stewart’s early guilty plea, demonstrated rehabilitation, good rehabilitative prospects, low risk of reoffending and the nature and level of the trafficking charge.
Turning first to the ground that the sentencing judge overlooked the significance of Stewart’s admissions, the right to a significant discount where an offender, by his or her admissions, provides proof of an offence which the prosecution could not otherwise have established is now well settled. The principle, sometimes described in this State as the Doran principle,[17] rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and make a confession of guilt of that offence. The ambit of the principle was recently examined in Latina v The Queen.[18] As the Court there noted, it is not a rule to be ‘quantitatively, rigidly or mechanically applied’[19] but where it applies it will ordinarily attract a demonstrable discount in sentence. In JBM v The Queen[20] Weinberg JA, citingDoran, stated that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed.
[17]Doran v The Queen [2005] VSCA 271.
[18][2015] VSCA 102.
[19]Ibid [12].
[20][2013] VSCA 69.
The sentencing judge doubted that the appellant would have been prosecuted on the charge of trafficking had the appellant not made the admissions that he did. As to the armed robbery his Honour expressed some uncertainty as to whether the police would have had adequate evidence to proceed without his admissions. The sentencing judge said the admissions were mitigating factors.
The sentencing judge concluded that the appellants were equally culpable for the armed robbery, and imposed the same sentence for both of them. His Honour did so on the basis that although it was Dawson who actually entered the premises and physically committed the armed robbery, Stewart was a key participant, having made relevant observations and provided information, the balaclava and the imitation pistol to Dawson. Further, Stewart had prior convictions (whereas Dawson did not) and Stewart’s prospects for rehabilitation, while good, were found not to be quite as good as Dawson’s.
The respondent conceded at the oral hearing that there was no evidence that established the appellant’s involvement in the offence other than the appellant’s admissions. That being so, he was entitled to a demonstrable discount for this factor. But the respondent contended that there was evidence sufficient to support a charge as accessory after the fact. The Crown would have been able to prove that Stewart and Dawson were in each other’s company that afternoon and that the items involved in the robbery were found shortly thereafter in Stewart’s possession. Therefore it was said that something less than a full Doran discount should be imposed. Further, it was submitted that, when regard was had to those aspects of Stewart’s personal circumstances mentioned in the preceding paragraph, the sentence of 22 months could be justified. We do not agree. Those factors could not in our view justify his Honour fixing the same sentence as Dawson. We are in any event not persuaded that it was for those reasons that his Honour fixed the same sentence. It seems to us clear that his Honour wished to produce the same individual sentence for both applicants. With respect his Honour fell into error in so approaching the sentence on this charge, as there was no demonstrable reduction given for this mitigating circumstance. Specific error having been made out we would uphold ground 1.
There is no substance in any of Stewart’s other complaints. As with Dawson, there is no basis for any other suggestion that the judge failed to take into account other significant mitigatory matters that Stewart relied upon on the plea and now relies upon in before this Court. Further, for the same reasons as given in the case of Dawson, there is no basis for the suggestion that the judge erred in his consideration or analysis of current sentencing practices or ss 5(4) and 5(4C) of the Sentencing Act 1991.
It does not follow, however, that, in re-sentencing Stewart to a lesser sentence on the armed robbery charge, his total effective sentence should be less than the sentence imposed on Dawson. Stewart fell to be sentenced for more offences, including the offence of trafficking methylamphetamine over a four and a half month period. Although complaint was made by Stewart that the judge ‘offended the totality principles’, this argument is without substance. The sentencing judge made clear that he considered that the just result, balancing all things, was that Stewart and Dawson should receive the same total effective sentence of imprisonment. To achieve that end, the sentence for trafficking was moderated and no orders for cumulation were made on the other charges. However, it was accepted by counsel for Stewart on the appeal that some degree of cumulation of the sentences on the other offences should be made if the sentence on the armed robbery was significantly reduced.
In re-sentencing, in order to give effect to the principle of totality and to ensure we do not create a disparity with the sentence of Dawson, we have concluded, that allowing the necessary discount on the armed robbery charge and making appropriate orders of cumulation, Stewart should receive the same total effective sentence as Dawson.[21]
[21] R v Barbaro [2007] VSCA 271, [25]; R v Coukoulis [2003] 7 VR 45, [38] (Ormiston JA);Scott v The Queen [2010] VSCA 290; Wilson v The Queen (2011) 33 VR 340;Bogdanovich v The Queen [2011] VSCA 388.
Conclusion
In the appeal of Stewart, we would grant the application for leave to appeal and allow the appeal. We consider a sentence of 15 months on the charge of armed robbery (charge 2) will reflect the necessary discount for the admissions Stewart made. There is no necessity to alter any of the other individual sentences, no error having been shown. We would order that 4 months of charge 1, 1 month of summary charge 4, 1 month of summary charge 7 and 1 month of summary charge 8 be served cumulatively on charge 2 and on each other making a total effective term of imprisonment of 22 months. Further, we confirm the community correction order made by the judge — which order will commence, as was ordered by the judge, at the conclusion of the 22 month term of imprisonment.
The application of Dawson for leave to appeal against sentence will be refused.
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