Dean v The Queen
[2020] VSCA 100
•1 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0067
| NICHOLAS DEAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 April 2020 |
| DATE OF JUDGMENT: | 1 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 100 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1989 (Judge Murphy) |
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CRIMINAL LAW – Appeal – Conviction – Aggravated home invasion and armed robbery against father and son – Applicant pleaded guilty to two charges of armed robbery – One charge of armed robbery alleged appropriation of property belonging to father (charge 2) – Second charge of armed robbery alleged appropriation of property belonging to son (charge 3) – Whether, on admitted facts, applicant could be said to be guilty of armed robbery against son – Applicant accepted summary of prosecution opening in the course of plea hearing – No challenge during plea hearing as to manner in which charge 3 formulated – Plea of guilty to be given its ordinary effect – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion – Armed robbery – Possessing drug of dependence – Early plea – Offending in company – Joint criminal enterprise – Total effective term of 7 years’ imprisonment with non‑parole period of 4 years and 4 months – Sentence of 6 years’ imprisonment on charge of aggravated home invasion – Sentence of 2 years’ imprisonment on charge of armed robbery with 6 months’ cumulation – Whether sentence on charge of aggravated home invasion unfairly disparate from those of co-offenders – Parity principles properly considered and explained by sentencing judge – Whether sentence on charge of armed robbery manifestly excessive – No reasonable prospect this Court would reduce total effective sentence even if error could be established – Section 280(1)(b) of Criminal Procedure Act 2009 applied – Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr C K Wareham | Valos Black & Associates |
| For the Respondent: | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
WEINBERG JA:
On 10 July 2017, the applicant, Nicholas Dean, pleaded guilty in the County Court to one charge of aggravated home invasion, two charges of armed robbery, and one charge of possession of a drug of dependence (namely, methylamphetamine). He had been charged together with two co-offenders, Adrian McLean (who pleaded guilty to one charge of aggravated home invasion, one charge of possession of a drug of dependence, and a related summary offence of committing an indictable offence whilst on bail), and Amanda David (who pleaded guilty to one charge of aggravated home invasion, one charge of theft, one charge of possession of a drug of dependence, and a related summary offence of assaulting an emergency worker whilst on duty). On the Crown case, it was alleged that the charge of aggravated home invasion was based upon joint criminal enterprise.
On 21 December 2017, the applicant was sentenced as follows:
Charge No. Offence Maximum Sentence Cumulation 1. Aggravated home invasion [s 77B — Crimes Act 1958] 25 years 6 years’ imprisonment Base 2. Armed robbery [s 75A — Crimes Act 1958] 25 years 3 years’ imprisonment 6 months 3. Armed robbery [s 75A — Crimes Act 1958] 25 years 2 years’ imprisonment 6 months 4. Possession of a drug of dependence [s 73 — Drugs, Poisons and Controlled Substances Act 1981] 1 year 7 days’ imprisonment Nil Total effective sentence: 7 years’ imprisonment Non-parole period: 4 years and 4 months Pre-sentence detention declared: 265 days Section 6AAA statement: 10 years’ imprisonment with a non‑parole period of 6 years and 6 months
On the same day, the applicant’s co-accused were sentenced by the same judge. Adrian McLean was sentenced as follows:
Charge No. Offence Maximum Sentence Cumulation 1. Aggravated home invasion [s 77B — Crimes Act 1958] 25 years 5 years and 6 months’ imprisonment Base 7. Possession of a drug of dependence [s 73 — Drugs, Poisons and Controlled Substances Act 1981] 1 year 7 days’ imprisonment Nil - Commit indictable offence whilst on bail [s 30B — Bail Act 1977] 3 months 1 month’s imprisonment Nil Total effective sentence: 5 years and 6 months’ imprisonment Non-parole period: 3 years and 4 months Pre-sentence detention declared: 355 days Section 6AAA statement: 8 years’ imprisonment with a non‑parole period of 6 years and 6 months
Amanda David was sentenced as follows:
Charge No. Offence Maximum Sentence Cumulation 1. Aggravated home invasion [s 77B — Crimes Act 1958] 25 years 5 years’ imprisonment Base 5. Possession of a drug of dependence [s 73 — Drugs Poisons and Controlled Substances Act 1981] 1 year 7 days’ imprisonment Nil 6. Theft [s 74 — Crimes Act 1958] 10 years 6 months’ imprisonment 2 months - Assaulting an emergency worker [s 51(2) — Summary Offences Act 1966] 6 months 14 days’ imprisonment Nil Total effective sentence: 5 years and 2 months’ imprisonment Non-parole period: 3 years Pre-sentence detention declared: 355 days Section 6AAA statement: 7 years and 4 months’ imprisonment with a non‑parole period of 5 years and 2 months
By notices of application for leave to appeal dated 2 April 2019, the applicant seeks leave to appeal against both conviction and sentence. With regard to his application for leave to appeal against conviction, he relies upon one ground, which is as follows:
Ground 1:A substantial miscarriage of justice has occurred on charge 3, in that, on the admitted facts, the applicant could not have been convicted of the offence charged.
In relation to his application for leave to appeal against sentence, the applicant relies upon two grounds, which are in the following terms:
Ground 1: In all the circumstances;
a)the sentence imposed on the applicant for [charge] 1 on indictment C1711043; and
b)the sentence imposed on his co-offenders Amanda DAVID and Adrian McLEAN on indictment C1711043
gave rise to a justifiable sense of grievance.
Ground 2:When consideration is given to the nature and circumstances of the offending, the individual sentence and order for cumulation imposed on charge 3 is manifestly excessive.
For the reasons that follow, we would refuse leave to appeal against both conviction and sentence.
Circumstances surrounding the commission of the offences
On the evening of 21 December 2016, the victims (who the sentencing judge referred to as ‘the father’, and ‘the son’) were at their home in Frankston North. At about 9:00 pm, the third member of the family, ‘the mother’, had left to go to work as an aged‑care attendant.
At about 9:15 pm, Amanda David had knocked on the front door of the house. The son answered. She had asked if anyone had seen her puppy, and if the son’s parents were home. The Crown alleged that this had been a ruse, intended to establish whether anyone was present in the house. The son said that his father was asleep inside. David then left the premises.
Some hours later, at 2:38 am on 22 December 2016, a CCTV camera in a church carpark (some 200 metres from the victims’ house) captured footage of Nicholas Dean removing a bandana from a backpack, and of Adrian McLean carrying a camouflage backpack containing a baseball bat. At 2:40 am, the applicant, David, and McLean set out towards the victims’ property.
At about 2:50 am, the three offenders arrived at the victims’ home. They climbed over the side fence of the property. David then opened a side window towards the rear of the premises. She entered the house through this window, and subsequently unlocked a rear sliding door to allow Dean and McLean into the premises.
All three offenders had entered the house in the belief that there was a large amount of cash, and gold jewellery, on the premises. At the time of entry, Dean was in possession of an imitation handgun. McLean was aware that Dean had this weapon on him. However, the Crown was unable to establish, to the requisite standard, that David was also aware of that fact. McLean was also in possession of a baseball bat at the time of entry, and David was aware of that fact. This conduct was said to constitute charge 1 (aggravated home invasion).
At approximately 3:00 am, the father was suddenly awakened when the bedroom light was turned on. He looked up to see Dean pointing the imitation handgun at him. Dean said to the father ‘don’t make any noise or I’ll kill you’. The father responded, telling Dean to ‘take anything you want’. Dean began to search the bedroom. He demanded gold and money. The father replied, telling Dean to ‘take what he wanted and not hurt us.’ Dean then took two Samsung tablets, and three laptops, from the bedroom.
Dean, accompanied by McLean, then entered the lounge room, still holding the imitation handgun. He stole a Nokia mobile phone, and an Apple iPhone, both of which belonged to the father. This conduct, involving the items stolen from the bedroom and the lounge room, constituted charge 2 (armed robbery).
Dean continued to walk through the house, still carrying the imitation handgun. One of the offenders, who could not be identified by either the father or the son, stole an LG mobile phone, which belonged to the son. This gave rise to charge 3 (armed robbery). That particular charge was expressed as an armed robbery of the son (who was designated as the victim of the robbery).
It should be noted that the prosecution filed a summary of its opening, dated 4 October 2017, for the purpose of the plea hearing against all three offenders. In that summary, it was alleged, inter alia, that after the applicant stole the two tablets and three laptops from the bedroom, he entered the lounge room and stole both the Nokia and Apple mobile phones, both of which belonged to the father. The summary went on to allege that the applicant ‘walked through the house and stole the son’s LG phone.’ As indicated, this was said to give rise to charge 3 against the applicant. It was also said to constitute part of charge 6, theft, against David.
Counsel for the applicant, on the plea, accepted this description of his client’s conduct as accurate.
Moments after the LG phone was taken, the three offenders left the house. Outside the property, the applicant and David placed all of the stolen items into a ‘wheelie bin’, and David walked it back to the church carpark. At the carpark, the offenders hid the bin in the bushes. The applicant and David then discarded the dark coloured hooded tops that they had been wearing.
The following day, one of the offenders collected the property that had been hidden in the wheelie bin the previous night, and brought it to the home occupied by the applicant and David.
On 30 December 2016, police executed search warrants at the home of McLean, and at the shared property of the applicant and David. At the latter residence, police located all of the items that had been stolen during the home invasion. They also found 1.9 grams of methylamphetamine at that property. This gave rise to charge 4 (against the applicant) and charge 5 (against David), possession of a drug of dependence. All three offenders were arrested, interviewed, and remanded in custody on that date.
McLean was searched at the police station. He was found to be in possession of two snap-lock bags containing methylamphetamine. This gave rise to charge 7 against him (possessing a drug of dependence).
Further, at the time of the offending, McLean was on bail for other matters. This gave rise to the uplifted summary charge of committing an indictable offence whilst on bail.
While sitting in an interview room at the police station, David swung a chair at a police officer, hitting him in the forearm. This gave rise to the related summary charge brought against her of assaulting an emergency worker while on duty.
While in holding cells at the police station, each offender made admissions to a covert police operative. This allowed police to locate the imitation firearm in a stormwater drain close to the church carpark.
Sentencing remarks
After setting out the background facts, the sentencing judge turned to the victim impact statements filed by the father, the mother, and the son. Understandably, each victim had been significantly affected by the offending, and his Honour recognised that this must be taken into account in assessing the seriousness of what had occurred, and in sentencing.
In assessing the gravity of the offending, the judge noted that there had been acceptance on the part of each co-accused that this was serious criminality. With reference to the factors set out by this Court in relation to the somewhat analogous offence of aggravated burglary in Director of Public Prosecutions v Meyers,[1] his Honour observed that the offending ‘should be seen as being in the higher end of the mid‑range.’[2]
[1](2014) 44 VR 486; [2014] VSCA 314, 498 [48] (‘Meyers’). These include the offender’s intent at the point of entry (whether to steal or commit assault or cause damage); the mode of entry (e.g. by forcing a door or breaking a window); whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside and/or about where the person(s) would be; and whether the offender was someone of whom the victim was particularly frightened.
[2]DPP v Dean [2017] VCC 1989, [44] (‘Reasons’).
With regard to each co-accused’s role and culpability for the offending, his Honour said:
In the absence of contested evidence as to the genesis of this crime, I am unable to reach any conclusions as to whose idea the crime was. Rather, it is appropriate to sentence you all on the basis that there [was] some premeditation for the offence.
Your counsel indicated, Mr Dean, that you were in financial difficulty. Each of you were using drugs. The motivation for the crime was clearly financial.
… In terms of the culpability for the offending[,] the fact that it was only you, Mr Dean, who presented the firearm to the adult male does not reduce the culpability of your co-offenders when you, Mr McLean, knew that Mr Dean had a firearm and you, Ms David, had both attended the premises earlier in the night and went into the premises to allow the other two to access them.
In submissions on your behalf, Ms David, your counsel put that you were only little referred to in the statements by the occupiers and that this somehow reduced your culpability. I do not accept this. The three of you were present in the house and it is this intrusion in company that adds to the gravity of the offending of home invasion. Similarly, the fact that the weapon was only presented by Mr Dean does not avoid joint responsibility being sheeted home to you Ms David and Mr McLean.[3]
[3]Ibid [47]–[50].
The judge then proceeded to detail each co-accused’s prior criminal history. In relation to the applicant, the judge noted his history of drug, firearms, weapons, dishonesty, and family violence offences, which dated back to 2003. Prior to the present offending, his most recent convictions were recorded in June 2016, in relation to charges of contravening a family violence intervention order, assault, committing an indictable offence whilst on bail, contravening a condition of bail, possessing a controlled weapon without excuse, dishonestly retaining stolen goods, possessing methylamphetamine, failing to answer bail, driving while suspended, and failing an oral fluid test within three hours of driving.
Further, the applicant had a subsequent conviction to the present offending. On 24 February 2017, he was convicted of possessing cartridge ammunition, possessing a dangerous article, possessing house breaking implements, committing an indictable offence whilst on bail, and possessing drugs of dependence. He was sentenced to 3 months’ imprisonment for that offending.
With regard to McLean, the judge noted his criminal history, which dated back to 2002. Between that time and 2013, he had been dealt with for a number of assault, drug, dishonesty, driving, and bail offences in this State and in New South Wales. The judge also noted that the fact that McLean had been on bail at the time of the present offences was an aggravating feature.[4]
[4]Ibid [62].
With regard to David, his Honour noted that her criminal history dated back to 2000, and that between that time and 2002, she had been dealt with for dishonesty and drug offences. There was then a 12 year gap where she did not offend. In 2014 and 2015, she was dealt with for assault, failure to answer bail, family violence offences, and weapons offences.
The judge then addressed the matters in mitigation. He acknowledged that he would give credit for each of the accused’s pleas of guilty, which had been entered at an early stage. He then turned to each of the offenders’ personal circumstances.
With regard to the applicant, his Honour observed that he was aged 35 at the time of sentencing. He had a son, aged four at that time, with whom he maintained fortnightly contact while on remand. The judge also noted the applicant’s family support, including the willingness of his mother to provide him with the necessary assistance to re‑establish his life after his eventual release. The judge then considered three character references that were tendered on the applicant’s behalf. They attested to him being an enthusiastic and hard worker.
The judge concluded that those matters indicated that the applicant had ‘reasonable prospects of rehabilitation, particularly if [he is] able to cease the use of illegal drugs.’[5]
[5]Ibid [74].
Turning to David, his Honour observed that at the time of sentence, she was also aged 35. She had experienced a dysfunctional upbringing, and had become addicted to heroin at 16, subsequently dropping out of school. She had her first child at the age of 19, and later had a further three children to a partner who was physically abusive towards her. She no longer had contact with these children, with the youngest three having been removed from her care in 2014. Her eldest son was now in the custody of his maternal grandfather.
A psychiatric report prepared by Associate Professor Andrew Carroll was tendered on David’s behalf on the plea. He also gave oral evidence. He expressed the opinion that David had developed a paranoid schizophrenic illness at some point in her mid‑20s, and that it had remained untreated until 2014. He also said that she had suffered from delusions, hallucinations, and symptoms consistent with schizophrenia for over a decade. Further, when these symptoms were at their worst, they had been sufficiently severe to warrant involuntary admission for several weeks, as had occurred.
However, Associate Professor Carroll stated that he could find no evidence that David’s mental illness had any of the described effects at the time of the commission of the offences. He concluded that her condition was now stable, and that she was compliant with her medication schedule.
With regard to McLean, the judge noted that he was aged 36 at the time of sentencing. He had also suffered a dysfunctional upbringing, his parents having separated at a young age. He then lived with his father for some years, who had been a heavy drinker, and violent.
In about 2002, McLean moved to Adelaide with his girlfriend. The pair subsequently travelled around the country. In 2003, she gave birth to their first child in Perth, and another child who died in infancy in the Northern Territory. The judge noted the impact that this had had on McLean. The couple then moved to Queensland, where they had a further three children. McLean had stable employment until the family lost their home in floods.
In 2011, the couple were living in Sydney. In 2013, McLean lapsed into using drugs. His partner had indicated that she wanted to separate from him. Since that time, he had been a long-term user of various drugs, including alcohol, cannabis, and amphetamines. However, the judge accepted that McLean had a close relationship with his children, and that it ‘favourably impact[s] upon your prospects of rehabilitation upon release.’[6]
[6]Ibid [112].
The judge then considered a number of sentences that were said by counsel to be relevant comparators,[7] but noted that the sentences imposed in these cases were not to be viewed as precedents. What was required was not numerical consistency, but rather, consistency of approach.[8]
[7]These included Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302; Meyers (2014) 44 VR 486; Perri v The Queen [2016] VSCA 89; DPP v Bowden [2016] VSCA 283; Trajanovski v The Queen [2017] VSCA 81; DPP v Benson [2017] VSCA 148; Robinson v The Queen [2017] VSCA 304; and Hi v The Queen [2017] VSCA 315.
[8]Reasons, [129], citing DPP v Dalgliesh (2017) 262 CLR 428; [2017] HCA 41, 444–5 [49]–[50] (Kiefel CJ, Bell and Keane JJ), 453–4 [82]–[83] (Gageler and Gordon JJ).
Finally, with respect to parity, the judge said:
In approaching the sentencing task I must first determine an appropriate sentence taking into account the matters listed in s 5 of the Sentencing Act, having regard to the purposes of sentencing that I have just referred to. In sentencing each of you for this offence, considerations of parity are relevant. To put the matter another way, any sentence must ensure that any disparity in treatment does not give rise to an unjustified grievance.
I have earlier concluded that you each bear equal moral culpability for this offence. In this regard I do not accept the submission on your behalf, Ms David, that the fact that you were not carrying a weapon at the time of entry lessened your moral culpability for the offending. Your involvement in the earlier [surveillance] and then entering the premises through a window to open a door to allow your co-offenders balances the ledger on moral culpability. I have also been unable to find who the instigator of the offence was.
Next, in terms of parity, I must consider your respective antecedents and prospects of rehabilitation. In relation to antecedents I propose to regard them all as broadly comparable particularly when one focuses on the last half dozen years. In relation to each of you this offending is a quantum leap in the seriousness of the offending for which you have previously been before courts. Each of you in recent times has served a short sentence of imprisonment when I include the three months imposed on you, Mr Dean, for offending that occurred prior to this offending. Each of you have significant relatively minor drug-related and dishonesty offences in your criminal record.
It is fair to say that for persons of your age it is somewhat exceptional that you present before this court for an offence of this seriousness without multiple prior convictions and significant sentences for serious violent and burglary offences. This leads to the conclusion that the offending can be attributed to the scourge of methylamphetamine addiction.
Specific deterrence has a part to play in relation to each of you, given your prior offending and drug addiction.
In terms of your prospects of rehabilitation I also regard them as broadly comparable. This offending was drug-related and while I have assessed each of your prospects in the future of rehabilitation as reasonable, that is all premised on each of you desisting from illicit drugs.
An area where I conclude there is a differential between you, Ms David and Mr McLean, on the one hand and you, Mr Dean, on the other is on the issue of remorse. I am satisfied that there is genuine remorse on the part of both you, Ms David and Mr McLean. While you have all accepted responsibility for your conduct and have facilitated the course of justice by early plea, I am not satisfied in your case, Mr Dean, that it accompanied by true remorse. This is a matter that does not weigh in your favour as it does with the other two and is relevant to their prospects of rehabilitation.
A further area where I do see a relevant difference among you is in relation to you, Ms David. As indicated by Assoc. Prof Carroll, your life in recent times has been blighted by undiagnosed schizophrenia … While I have not accepted that there is a causal link between the offending and your psychiatric condition, your history of your now managed psychiatric condition is a matter that, notwithstanding the seriousness of the offending, calls for the exercise of leniency and a moderation in considerations of general deterrence in your particular case.[9]
[9]Reasons, [133]–[140] (emphasis added).
His Honour then proceeded to sentence the applicant and his two co-accused as set out above at [2]–[4].
Applicant’s submissions — conviction
The applicant’s proposed ground 1 in relation to his application for leave to appeal against conviction is set out above at [5]. In his written case, counsel for the applicant distilled the argument down to two key limbs:
1.The applicant was unaware of the factual basis upon which he was pleading guilty, and
2. On the admitted facts, charge 3 cannot be made out as a matter of law.
The applicant’s written case briefly outlined the approach taken by appellate courts in England and Australia in dealing with appeals against conviction where the offender had previously pleaded guilty.[10] Counsel correctly acknowledged that this Court has held that it would only intervene, in such circumstances, and in a very exceptional or rare case where,[11] to do otherwise would constitute a miscarriage of justice.[12] He submitted that this was such a case.
[10]In that regard, counsel referred to R v Forde [1923] 2 KB 400, 403; R v Stewart [1960] VR 106, 108; R v Murphy [1965] VR 187, 190; and R v Kardogeros [1991] 1 VR 269, 274.
[11]R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109, 566–7 [78]–[82] (O’Bryan AJA).
[12]R v Tait [1996] 1 VR 662, 665 (Callaway JA, Winneke P agreeing at 668, Crockett AJA agreeing at 667).
In his written case, despite the two limbs that he had foreshadowed, counsel did not pursue any further argument in relation to the first limb.
In relation to the second limb, counsel, in his written case, submitted that:
Addressing charge 3, the prosecution opened only that:
[The applicant] walked through the house and stole [the son’s] LG phone; charge 3[,] Armed Robbery by [the applicant]; Part of charge 6[,] theft by David)[.][13]
[13]Citation omitted.
Further, counsel continued:
The admitted facts in the Prosecution Opening do not disclose that ‘immediately before or at the time’ the LG mobile phone was stolen, the applicant (or indeed any of the offenders) used force or threatened to use force on another person — or indeed any person. Further, there is nothing in the factual matrix that discloses that any weapon was used to ‘suborn the will of [the] victim’ in order to bring about the theft of that phone.[14]
[14]Citation omitted.
During oral argument before this Court, counsel submitted that when regard was had to the actual evidence that formed the basis for charge 3, the facts disclosed could not establish the elements necessary for the armed robbery, as alleged.
There were said to be two reasons for this. First, there was no justification at all for the conclusion that the applicant had stolen the LG mobile phone. All that could be said was that it had been taken by one of the offenders (identity unspecified), and found its way, ultimately, into the applicant’s home, which he, of course, shared with David. Secondly, the evidence did not permit a finding that there had been any force used against the son, or even a threat of force made to him, which could be linked to the theft of the LG mobile phone such that it could be said that this occurred in order to enable the phone to be stolen. In short, it was submitted that while there had, undoubtedly, been a robbery committed against the father, there was no evidence at all of any robbery having been committed against the son.
It was submitted that the applicant’s conduct, as described in the statements provided by both the father and the son, did not, as regards charge 3, fall within the statutory definition of ‘armed robbery’. The relevant statutory definitions were set out in the applicant’s written case as follows:
Section 75A of the Crimes Act 1958 (‘the Act’) relevantly provides that:
A person is guilty of armed robbery if he commits any robbery and at the time has with him [an] ... offensive weapon ... within the meaning assigned to those terms for the purpose of section 77(1A) [of the Act].
Further, ‘robbery’ is defined in s 75(1) of the Act, where it relevantly provides that:
A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.[15]
[15]Citation omitted.
It was, therefore, submitted that charge 3 could not have been made out on the admitted facts. Accordingly, the conviction and sentence on that charge should be quashed, and a verdict of acquittal entered in its place.
Applicant’s submissions — sentence
The applicant’s proposed grounds in relation to his application for leave to appeal against sentence are set out above at [6].
The first proposed ground is one of parity. Counsel submitted that the disparity in the applicant’s sentence imposed on charge 1 with that received by his co-offenders cannot be reasonably justified. As indicated earlier, the applicant received a sentence of 6 years’ imprisonment on charge 1. On the same charge, McLean received a sentence of 5 years and 6 months’ imprisonment, and David received a sentence of 5 years’ imprisonment.
In that regard, the applicant referred to the fact that each offender had pleaded guilty at the earliest opportunity. Moreover, his Honour was unable to conclude who had devised the idea of breaking into the house. Each offender had relevant prior convictions. Further, the offending occurred as part of a joint criminal enterprise. The applicant argued that in light of those factors, there was no justification for the sentencing judge to have discriminated between each of the offenders in respect of charge 1 in the way that he had.
The applicant’s second proposed ground is one of manifest excess in relation to charge 3, with the overall submission being that if
[this] Court were to accept that the elements of the offence were made out, and reject the appeal against conviction on that charge, the offending must fall at the lower end of the spectrum for this offence. Moreover, this offending ought [to] be viewed as part and parcel of the offending alleged — both charge 1 and charge 2 such that there should be substantial concurrency.
In substance, it was submitted that the applicant should not have received a sentence of 2 years’ imprisonment on charge 3, that being manifestly excessive. It was also submitted that the cumulation of 6 months of that 2 year sentence on charges 1 and 2 was unwarranted. It was argued that the only real difference between the two offences was that, unbeknown to the applicant, the LG phone happened to belong to the son, rather than the father, and that this should not lead to the cumulation of 6 months’ imprisonment, as the judge had ordered.
Perhaps implicit in that submission was the contention that a separate sentence of 2 years’ imprisonment on charge 3, which was cumulated, in part, on charge 2, had about it an element of double punishment for essentially the same conduct. The offending should, rather, be viewed as part of a single transaction and, therefore, warranted total, or at least more substantial, concurrency.
Respondent’s submissions — conviction
In the respondent’s written case, it was submitted that the evidence established that the applicant had entered the house with an imitation firearm; that he had woken the father and pointed the imitation firearm at him; that the father understood the implicit demand of that action, replying with ‘take anything you want’; that the applicant had asked the son ‘where is the safe, where is the money?’; and that he and McLean had searched the home and stole a number of items, including the LG mobile phone, which was later found at the applicant’s home.
The respondent’s written case then referred to the elements of the offence of Armed Robbery, as set out in the Judicial College of Victoria’s ‘Criminal Charge Book’. Those elements are set out as follows:
1.The applicant stole something:
2. Immediately before or at the time of the theft, the accused:
(a) Used force on any person; or
(b)Put any person in fear that s/he or another person would, then and there, be subject to the use of force; or
(c)Sought to put any person in fear that s/he or another person would, then and there, be subject to the use of force.
3. The accused did so in order to commit the theft.
4.At that time the accused had a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with him or her.[16]
[16]Judicial College of Victoria, ‘Armed Robbery’, Criminal Charge Book, 7.5.2, 7.5.3.
It was submitted, in the written response, that on the admitted facts, the elements of the offence of armed robbery could be established by reference to either the conduct directed towards the father, or the conduct directed towards the son.
The respondent submitted that in either scenario, the applicant had, by his plea of guilty, accepted as accurate the summary of the prosecution opening. That opening said, in terms, that the applicant stole the LG phone. The applicant had, therefore, admitted to having done so. While neither the father, nor the son, actually saw the LG mobile phone being taken, it was plainly open to infer that it was the applicant who had taken the phone during the course of the offending. This was supported by the fact that the phone was subsequently found at his home, perhaps an application of the doctrine of recent possession.[17]
[17]See, generally, Trainer v The King (1906) 4 CLR 126; [1906] HCA 50; and Bruce v The Queen (1987) 74 ALR 219.
The respondent submitted that the ‘use of force’ element of robbery was made out as the applicant had pointed the imitation firearm at the father, shortly before the theft of the LG phone. The applicant, whilst armed, had also made demands of both the father, and the son, in the most threatening of circumstances. This conduct put both the father and his son in fear that one or both of them would be subjected to force. It thereby met the requirements of either element 2(b), or 2(c).
Further, it was submitted in the written response that the applicant’s conduct in the course of the offending clearly met the third element of force being used ‘in order to steal’. It was not disputed that, at all material times, the applicant had an imitation firearm in his possession. Further, a close reading of the summary of the prosecution opening suggested that charge 3 was put on the basis of the conduct directed by the applicant at the father, rather than the son. It was, therefore, submitted that all of the elements of the offence as charged were made out according to law.
With regard to the applicant’s first limb in support of his challenge to the conviction,[18] the respondent submitted that if the applicant did, indeed, seek to assert that he had not intended to admit the facts in the prosecution opening in relation to charge 3, any such contention would need to be the subject of evidence from himself and/or his former solicitors. No such evidence had been forthcoming, there was no affidavit, or other evidence, from the applicant to the effect that he had misunderstood the nature of the allegations made against him in the summary of the prosecution opening. Nor was there any evidence to support the suggestion that his counsel, on the plea, may have acted without instructions when he told the judge that the applicant did not challenge any of the facts as alleged in the opening.
[18]Set out above at [44].
Respondent’s submissions — sentence
With regard to the parity ground, the respondent submitted that the sentencing judge gave careful consideration to the principle of parity, as evidenced in [133]–[140] of his Honour’s sentencing remarks.[19]
[19]Set out above at [42].
The respondent submitted that while the sentencing judge found that the three co-accused’s prospects of rehabilitation were ‘broadly comparable’, he was not satisfied that the applicant’s plea had been accompanied by genuine remorse. The respondent also highlighted David’s mental health and illness, and McLean’s dysfunctional upbringing, as being significant mitigating factors for them both.
In contrast, it was noted that the applicant had had a relatively stable life, with a decent employment history, and strong family supports. There was nothing otherwise mitigating about his personal circumstances.
Overall, it was submitted that the difference of 6 months in the sentences of the applicant and McLean, and 12 months in the sentences between the applicant and David, was open on the evidence before the sentencing judge and did not give rise to a justifiable sense of grievance.
With regard to the applicant’s argument of manifest excess, the respondent’s written submissions proceeded on the basis that the conduct relied upon to establish charge 3 had been directed at the father, rather than the son. It was acknowledged that there may have been some degree of overlap between the two charges of armed robbery. It was submitted, however, that the orders for cumulation that were made between those two charges were within range, and that no different sentence should be imposed.
Analysis — conviction
There is no substance to the application for leave to appeal against conviction. The submission put forward by the applicant’s counsel before this Court, that there was no evidence that the applicant was the actual person who stole the LG mobile phone, flies in the face of the plea of guilty, and the acceptance by the applicant of the correctness of the prosecution opening. There was an admission, in terms, that the applicant stole the LG phone, and he should be bound by that admission.
Counsel who appeared before this Court fully recognised the difficulty that confronted his submission that the conviction should be set aside. It was obviously difficult to contend, without evidence, that the applicant had somehow misunderstood the allegations made against him, or been under some misapprehension as to what they signified. It was equally difficult to suggest that the applicant had not given instructions to his counsel to accept, on his behalf, the correctness of the prosecution opening insofar as it alleged that the applicant stole the LG phone.
Counsel acknowledged that he had given thought to whether evidence should be procured in order to support one or more of these propositions. He frankly acknowledged that, for whatever reason, he had made a choice not to pursue that course. He nonetheless, belatedly, requested an adjournment of this application in order to attempt to procure such evidence.
The Court rejected that application. No adequate basis for adjourning this matter had been put forward. The prospect that the applicant could succeed in demonstrating that there was a proper foundation for challenging his conviction on charge 3, in circumstances where he had pleaded guilty, and accepted as correct the prosecution summary, could at best be described as remote.
We note that according to the written response filed by the prosecution in answer to the challenge to the applicant’s conviction, there is a practice, generally followed by the Crown whereby, when multiple items of property are stolen in the course of a robbery, a separate charge of robbery is brought in relation to each item separately owned. Accordingly, so it was said, charge 2 was laid as the armed robbery of the father, whereas charge 3 was described as the armed robbery of the son.
In oral submissions, counsel for the respondent, who had not prepared the prosecution’s original written response, appeared somewhat taken aback at the suggestion that such a general practice existed. She submitted that although some prosecutors might approach the matter in that way, it was by no means necessarily the approach that was taken in all cases in which indictments were framed.
In any event, it was submitted that the reason why charge 3 was laid as a separate offence from charge 2 had to do not just with the son being the owner of the LG phone, rather than the father, but because the criminality associated with charge 3 could be described as separate from charge 2. The theft of the phone had occurred after all of the father’s property had been stolen, and could be regarded as a quite distinct piece of criminal behaviour.
Irrespective of how the theft of separate items of property belonging to different owners should be charged (in circumstances where there was a single act of force, or threat thereof, directed against one person), it cannot be said that the applicant pleaded guilty to an offence not known to the law. Nor can it be said that the plea of guilty should not be given its ordinary effect. By his plea, the applicant admitted each and every element of the offence charged.
Analysis — sentence
There is, equally, no merit in the parity point, which forms the basis of the first of the two proposed grounds of appeal against sentence. The judge set out, in clear terms, precisely why he considered it appropriate to impose slightly lesser terms of imprisonment on charge 1 (aggravated home invasion) for McLean and David. The differences were not great, but were fully explained, and rationally justifiable.
Ground 2 of the application for leave to appeal against sentence raises what, in other circumstances, might give rise to a difficult question. Had the LG phone, though belonging to the son, been taken from the father’s bedroom at the same time as the Samsung tablets and the three laptops, and included within charge 2, it is difficult to imagine that this, of itself, would have resulted in a sentence of greater than 3 years having been imposed. Yet, the fact that it belonged to the son, and not the father, might have resulted in an additional conviction for a most serious offence, with some cumulation on the sentence that would otherwise have been imposed.
An alternative interpretation of what occurred is that the theft of the LG phone involved a quite separate act of criminality, warranting an additional conviction, and an additional sentence.
It could, perhaps, be said that the judge in the present case might have given greater weight to the obvious degree of overlap between charges 2 and 3. It would have been open to his Honour to have made the sentence on charge 3 wholly concurrent with the sentence on charge 2. The prosecution, in its written response, accepted that there was a such overlap between these two offences, but submitted that it did not follow that there should not be any cumulation between them.
In the ultimate analysis, we consider that, in the present case, none of this matters. The difficulty that confronts the applicant in challenging his sentence is that he requires leave to appeal. He must establish not merely that he has an appropriately arguable case of error in challenging the sentence below, but also that he can overcome the potential operation of s 280(1)(b) of the Criminal Procedure Act 2009.
That paragraph reads as follows:
280 Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
…
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Assuming, for the sake of argument, that there is a case for saying that there should have been total concurrency between charges 2 and 3, it cannot be said that the applicant’s total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 4 months, can be viewed as anything other than moderate. Indeed, counsel who appeared before this Court was properly candid enough to acknowledge that this was so.
On any view, the offending was extremely serious. To break into a private home in the early hours of the morning, and threaten to shoot and kill at least one of the occupants, must be regarded as an offence of the utmost gravity. The items of property that were taken would have been of considerable value. The home invasion was planned, and committed in company. To make matters worse, the applicant had a substantial criminal record. Apart from the plea of guilty, there was little that could be said by way of mitigation.
Any term of imprisonment significantly less than the 7 year total effective sentence imposed upon the applicant would not, in our view, serve the interests of justice. It would fail to meet the needs of general deterrence or, in the applicant’s case, the important factor of specific deterrence. It would not punish the applicant adequately. It would not be seen as sufficiently denouncing his conduct. Finally, it would not do justice to the very real, and lasting, harm suffered by the innocent victims of this most appalling crime, as manifested in their victim impact statements.
Conclusion
In our view, there is, in the language of s 280(1)(b), ‘no reasonable prospect’ that if leave to appeal were granted, a lesser total effective sentence would be imposed. For that reason alone, we would refuse leave to appeal against sentence.
We have already indicated why we would refuse leave to appeal against conviction.
The orders of the Court must be that in each application, leave to appeal is refused.
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