Director of Public Prosecutions v Briggs
[2010] VSCA 82
•19 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | No 698 of 2009 |
| v | |
| JAMES LEE BRIGGS |
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| JUDGES | REDLICH and HARPER JJA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 February 2010 |
| DATE OF JUDGMENT | 19 April 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 82 |
| JUDGMENT APPEALED FROM | R v James Lee Briggs (Unreported 1 December 2008, County Court of Victoria, Judge Howard) |
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CRIMINAL LAW – Sentencing – Crown appeal – Breach of undertaking to give evidence against co-offender – Excuse – Respondent placed in cells with co-offender prior to hearing – Potential breach of duty of care to respondent – Respondent re-sentenced – Crimes Act 1958, s 567A(1A) and (4A).
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr M J Croucher | Ronald V Tait |
REDLICH JA:
I agree for the reasons given by Habersberger AJA that the appeal should be allowed and the respondent resentenced as he proposes.
HARPER JA:
I also agree.
HABERSBERGER AJA:
On 19 August 2008 the respondent, James Lee Briggs, pleaded guilty before the County Court at Melbourne to a number of charges on three separate presentments. The matter was listed again on 18 November 2008 for further submissions on a point raised by the learned sentencing judge.
On 1 December 2008 the respondent was sentenced as follows. On presentment U01042095.1 (‘the first presentment’), he was sentenced to 9 months’ imprisonment on one count of recklessly causing serious injury[1] and to 3 months’ imprisonment on one count of affray.[2] Both of these offences occurred on 30 June 2006. The total effective sentence on the first presentment was 9 months’ imprisonment.
[1]Maximum penalty – 15 years’ imprisonment.
[2]Maximum penalty – 5 years’ imprisonment.
On presentment W02758549 (‘the second presentment’), the respondent was sentenced to 12 months’ imprisonment on one count of aggravated burglary,[3] 9 months’ imprisonment on one count of theft,[4] 15 months’ imprisonment on one count of armed robbery,[5] 9 months’ imprisonment on one count of recklessly causing serious injury and 6 months’ imprisonment on each of two counts of theft. All of these offences occurred on 4 and 5 October 2007. His Honour ordered that 2 months
of the sentence on the first count and 1 month on each of the sentences on the second, fourth, fifth and sixth counts be served cumulatively upon the third count (armed robbery) and upon each other. This made a total effective sentence on the second presentment of 1 year and 9 months’ imprisonment.
[3]Maximum penalty – 25 years’ imprisonment.
[4]Maximum penalty – 10 years’ imprisonment.
[5]Maximum penalty – 25 years’ imprisonment.
On presentment X00049126 (‘the third presentment’) the respondent was sentenced, as a serious violent offender, to 2 years and 6 months’ imprisonment on one count of intentionally causing serious injury[6] on 14 December 2007. His Honour ordered that this sentence be the base sentence and that the total effective sentences on the first and second presentments be cumulated upon the sentence on the third presentment and upon each other. This made the total effective sentence for all three presentments of 5 years’ imprisonment. His Honour ordered that the respondent serve a minimum sentence of 3 years’ imprisonment before being eligible for release upon parole.
[6]Maximum penalty – 20 years’ imprisonment.
The learned sentencing judge declared that, pursuant to s 5(2AB) of the Sentencing Act 1991 (‘the Act’), he had imposed a less severe sentence than would otherwise have been imposed because of the respondent’s undertaking:
to assist, after sentencing, in the prosecution of Alfred Kelly and possibly other persons, concerning the offences covered by the second presentment.
Further, his Honour stated, pursuant to s 6AAA of the Act that, but for the respondent’s pleas of guilty and taking account of all other relevant matters, particularly the fact that his pleas were attended by remorse and the assistance which he had given and pledged to the authorities, he would have imposed a total effective sentence of 10 years’ imprisonment with a minimum of 7 years.
After indicating to the Crown, on 30 January 2008, that he would plead guilty to the offences the subject of the second presentment, on 14 March 2008 the respondent had made a statement to the police implicating his co-offender Kelly in these offences. The respondent gave evidence at the plea during which he swore that the contents of his statement made on 14 March 2008 were true and correct and promised to give evidence in any proceedings against Kelly, or any other person, in accordance with that statement.
In his sentencing remarks, his Honour described the evidence the respondent could give against Kelly as being ‘of considerable importance’ because without it the Crown case against Kelly was ‘very weak’. His Honour stated that he regarded the assistance the respondent had given and would give as ‘of a high order’ which warranted ‘a very substantial sentencing discount’. His Honour extended the discount to the sentence on all three presentments, not just on the second one.
However, when the respondent came to give evidence at the contested committal hearing for Kelly on 22 April 2009, he did not honour his undertaking. In evidence in chief, when asked about his statement, the respondent said:
I can’t remember (indistinct) to be honest. At the time of the events I was drug induced.
Nevertheless, he did agree that the statement was true and correct.
In cross-examination, the respondent said:
At the time I made this statement, yeah. I was hallucinating in the police cell and I (indistinct) interviewed by the police …
Um, I don’t fucking remember what happened.
The respondent then said that part of his statement was not true where it said that Kelly was present when these offences were committed. He said that at the time of the offending he was under the influence of drugs and alcohol. He agreed that what he was saying was that none of these offences to which he pleaded guilty involved Kelly. The learned magistrate discharged Kelly on all charges.
On 24 June 2009 the Director of Public Prosecutions (‘the Director’) appealed, pursuant to s 567A(1A) of the Crimes Act1958, against the sentence passed on the respondent. Section 567A(1A) confers on the Director a power to appeal against sentence where:
(a)a sentence of lesser severity had been imposed because of an undertaking given by an offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; and
(b)the Director considered that the offender had failed wholly or partly to fulfil the undertaking.
Section 567A(4A) provides that the Court of Appeal:
may, if it thinks that the respondent has failed wholly or partly to fulfil the undertaking, quash the sentence passed and pass such other sentence warranted in law as it thinks fit.
Counsel for the Director referred to the decision of this Court in Director of Public Prosecutions v Mann.[7] In that case, Warren CJ, with whom Maxwell P and Buchanan JA agreed, stated that the following applicable principles could be extracted from the authorities:
(1)A more severe sentence will be imposed once the conditions of breach of undertaking, appeal and determination of a different sentence are established, unless exceptional circumstances arise.
(2)In re-sentencing a respondent, the constraints of the principles of double jeopardy do not arise.
(3)The sentence cannot exceed that which the judge at first instance specified would have been imposed but for the undertaking.
(4)Threats made in prison do not alter the fact that a respondent has failed to pay the price of the reduced sentence given at first instance.[8]
[7][2006] VSCA 228.
[8][2006] VSCA 228, [8].
To this could be added two further propositions articulated by the Chief Justice. First, her Honour said:
The Court does not exercise a fresh sentencing discretion. As Buchanan, J.A. observed in argument, the Court does not start with a clean sheet of paper, rather with a sheet of paper with some writing on it: what the judge said below.[9]
Secondly, her Honour stated:
When an individual agrees to the bargain with the community based on co-operation, he or she embraces risks at large, save in an exceptional case where the fulfilment of the risk may not have been reasonably anticipated. Here, the respondent took the risk, as clearly articulated by the sentencing judge, and it eventuated. Such fulfilment is not a matter of mitigation at all. It simply puts the individual back where he would have been if the undertaking had not been proffered in the first place.[10]
[9][2006] VSCA 228, [10].
[10][2006] VSCA 228, [10].
In their written outline of submissions, counsel for the respondent accepted that at the contested committal on 22 April 2009 he had failed to fulfil the undertaking he gave before Judge Howard on 19 August 2008, and that having breached that undertaking the respondent now fell to be sentenced to a different sentence in accordance with s 567A(1A) of the Crimes Act1958, and the principles set out in Mann.
The circumstances of the breach of the undertaking
Counsel for the respondent submitted that, although receiving threats will not alter the fact that a respondent has not paid the price for the reduction in sentence, this did not mean that the circumstances leading to the breach of the undertaking were irrelevant or that they could not ameliorate the different sentence to be imposed.
In an affidavit sworn on 5 February 2010, the respondent deposed that on each occasion when he was at the Magistrates’ Court to give evidence against Kelly, he was kept in the cells with Kelly. On the first occasion, he was with Kelly for approximately half an hour. The respondent deposed that:
He just kept nagging me to say he wasn’t there.
The respondent also said that prior to going to court he had been told by other prisoners that Kelly was calling him ‘a dog’ or informer, although Kelly did not use that expression to his face.
The respondent said that he then telephoned his lawyer, Ms Robyn Greensill, on two occasions and requested that he be allowed to give his evidence via a video link. In her affidavit sworn on 8 February 2010, Ms Greensill deposed to the fact that she had been contacted by the respondent. He asked her to contact the OPP to request that he give his evidence in Kelly’s matter by video link. She said that he told her that he had been kept in the cells with Kelly and that ‘he had felt pressured not to give evidence against him’. Ms Greensill said that she spoke to a person she believed to be ‘the OPP preparations officer in relation to the committal of Kelly’ and relayed the respondent’s request.
The respondent said that on the second occasion he was transported from prison on the same ‘bus’ as Kelly. The respondent said in his affidavit:
He was with me most of the morning, nagging me all of the time. He didn’t physically threaten me but I felt that I could be at risk physically. He just kept nagging me all of the time. He said “get me out will you”. He had been saying “I will put money in your account every month” and things like that. I did not want or receive anything from him and I did not expect it.
The respondent’s affidavit concluded with the following statement:
I believe that if Mr Kelly was not kept with me I would have been strong enough to give the evidence I had previously promised to give at my plea hearing.
I very much regret that I did not give evidence in accordance with my undertaking but I was in fear of Mr Kelly and the risky position which he placed me in within the prison with other prisoners.
Whilst the appellant’s attitude to the respondent’s account of what had happened on the first occasion was somewhat equivocal, counsel for the appellant accepted the veracity of the respondent’s statements about what had occurred on the second occasion. He said that the respondent was in protective custody at this time and that although procedures were in place to avoid this problem, apparently a ‘human error’ or a break down in communication had occurred which resulted in the respondent being kept in the cells with Kelly. Counsel accepted that the respondent was overborne by Kelly’s presence.
It goes without saying that the respondent should not have been placed in this situation. It is very worrying that counsel for the Director stated that this was not an isolated event. When a prisoner makes the difficult decision to give evidence against another offender, he or she is entitled to expect that the authorities will take the appropriate steps to provide the necessary protection for the co-operating prisoner. Anything less may give rise to a breach of the duty of care owed to every prisoner, but in particular to a prisoner who has agreed to give evidence. To say that this situation was brought about by ‘human error’ is simply not good enough. This failure was particularly inexcusable when the respondent, with the assistance of his solicitor, had made every effort to maximise the chances of him giving the evidence against Kelly.
Background of the offending
As the appeal is brought on the ground that the respondent breached his undertaking to give evidence, a detailed description of that offending is not required, but it is necessary to briefly consider the offences for which the respondent falls to be re-sentenced.
First presentment
The first presentment related to one count of recklessly causing serious injury and one count of affray. The conduct that gave rise to these counts took place at Flinders Street Station on the afternoon of 30 June 2006. The victim was waiting to meet a friend on the steps beneath the clocks. The respondent was in large group of around 10 to 15 males and females. One of the group began taunting the victim about his clothing. He sensibly moved away, but the group continued to taunt him. Following a response by the victim, he was called a ‘poofter’, a paedophile and a ‘faggot’. He was ordered by members of the group to move further away, which he did by moving off the steps entirely.
Despite the fact that the victim had complied with these unreasonable demands, the respondent and three other co-offenders, Hayes, Weston and Windus, followed the victim down Flinders Street towards Elizabeth Street. The victim was pushed and shoved. Without provocation, the victim was punched in the face twice by Weston, which caused him to fall to the ground. The victim got back to his feet but was further assaulted by the four offenders. He fell to the ground a second time. The respondent and Hayes kicked and punched the victim. During the attack the victim was not violent toward the any of the group. He was left lying injured on the ground.
The victim was taken to hospital and suffered serious injuries, including facial fractures to his left eye socket, his right upper jaw and left cheekbone. He also had several facial cuts and abrasions. In his victim impact statement, he spoke of the emotional trauma of the attack and his residual disfigurement.
The respondent was arrested around six weeks later on 12 August 2006, and interviewed by police. The respondent said that he had been part of a group that had been drinking for some hours. He admitted following the victim and punching him twice to the ribs. He stated that others had been kicking him in the face while he was on the ground. The respondent was charged and released on bail. In November 2006 he was placed in custody on other unrelated offences. He reserved his plea at a contested committal on 17 May 2007. Following the committal the respondent was bailed to live at the Galiamble Centre for Aboriginal men.
Hayes and Weston were both charged with the same two offences as the respondent. Each was sentenced by Judge Howard to 18 months’ imprisonment for recklessly causing serious injury and 3 months’ imprisonment for affray, which was made concurrent. This made a total effective sentence of 18 months’ imprisonment, with 9 months suspended for a period of 12 months. Windus was charged with affray and with the summary charge of assault in company. He was sentenced by Judge Howard to 6 months’ imprisonment for affray and 3 months’ imprisonment on the assault charge, which was made concurrent. Thus, his total effective sentence was 6 months’ imprisonment.
Second presentment
The second group of offences took place on 4 and 5 October 2007. They were carried out in company with another aboriginal man Alfred Kelly, against whom the respondent agreed to give evidence. To put these offences in context it is helpful to outline briefly the respondent’s personal circumstances.
In 2003 the respondent established a relationship with an Aboriginal woman called Sharon, with whom he had three children who were four, three and two years old at the time of sentencing. While the respondent was in custody between November 2006 and May 2007, Sharon started a relationship with a new partner called Freddie who was from Papua New Guinea. However, in May 2007 while the respondent was on bail and living at the Galimable Centre, he reconciled with Sharon. He left the centre and went to live with her. The relationship broke down shortly thereafter and the respondent again succumbed to significant alcohol and heroin use. He returned to live in Collingwood with little or no support.
At approximately 12.30 am on 4 October 2007, Kelly and the respondent broke into a house at Seabrook whilst the occupants were at home asleep. This conduct gave rise to count 1, the aggravated burglary. The respondent admitted in his police interview that he and Kelly had been drinking and taking drugs. He said: ‘We weren’t in the right state of mind but we thought we would do a bit of thieving and get up to some mischief’. Kelly entered the house while the respondent kept watch outside. Kelly stole a set of keys for a BMW and two mobile phones from the house, then both Kelly and the respondent stole the BMW from the garage. This conduct constituted count 2, theft of a motor vehicle. The car was driven back to Collingwood, where the respondent and Kelly slept for most of the day.
At 11 pm that night, the respondent and Kelly drove the BMW to Pascoe Vale South, and then stole two registration plates from a Commodore parked outside a house. This conduct gave rise to count 6, the theft. Those plates were fixed to the BMW.
At about 2 am the following day, 5 October 2007, the respondent and Kelly were driving the BMW in Collingwood, where they came across a purple Ford Falcon being driven by the second victim. According to the respondent’s police statement the driver of the Falcon made a rude gesture at them, and was hooning and driving fast, so they chased him in the BMW. Eventually the BMW drove in front of the Falcon forcing it to stop. Kelly armed himself with a screwdriver and approached the driver. He threatened him and ordered him out of the vehicle. The driver refused and Kelly punched him in the face and snatched the keys from the ignition. The respondent then approached the car and punched the driver in the nose several times, breaking his nose and causing it to bleed profusely. This conduct constituted count 4, recklessly causing serious injury. The learned sentencing judge described the attack as ‘serious and calculated’. The victim needed a costly operation on his nose.
The victim begged his assailants to leave him with his car, but he was threatened with the screwdriver and he left the scene. Kelly and the respondent then stole the Falcon. This conduct constituted count 3, the armed robbery. Kelly drove the Falcon and the respondent followed in the stolen BMW. Shortly thereafter they stole another pair of registration plates, which gave rise to count 5, the second count of theft.
The BMW eventually ran out of fuel and was abandoned, and both Kelly and the respondent drove around in the Falcon. At about 12.30 pm that day they were driving the Falcon when they were pursued by the police. The Falcon was abandoned. Kelly escaped. The respondent was arrested and interviewed that day. He admitted committing all of the above offences.
The offences the subject of the second presentment were committed while the respondent was on bail. The respondent was charged with the second presentment offences on 18 October 2007, and most surprisingly was again released on bail, this time on the Court Integrated Service Program (‘CISP’). A condition of the respondent’s bail was that he live at the William T Onus Hostel for Aboriginal men in Northcote and that he not consume alcohol or drugs.
Third presentment
The respondent initially complied with the CISP program. However, after learning that his former partner Sharon had become pregnant to her new partner Freddie, the respondent went down hill and began drinking heavily.
On 14 December 2007 the respondent met up with Freddie’s cousin in Collingwood. There was a fight, and he knocked the respondent to the ground. The respondent claimed that he was threatened by Freddie’s cousin, so he went to his uncle’s high-rise flat in Collingwood where he was staying, and armed himself with a kitchen knife. He was angry and he decided that he would attack Freddie’s cousin.
The account put forward by the Crown was that the respondent and an unknown male co-offender approached the victim, a West Papuan, who was sitting outside the high-rise flats. The victim alleged that the respondent asked him for $2 and when he showed the respondent that his wallet was empty, the co-offender held his arms while the respondent stabbed him in the back, the right side of his body and his abdomen. This conduct constituted the single count of intentionally causing serious injury. The victim was able to run off but then collapsed and was found by security staff and taken to hospital where he underwent surgery. The respondent fled and went into hiding, and was not arrested until 8 January 2008.
The victim received a lacerated diaphragm, an abdominal wound to his right side which resulted in a lacerated liver, a transection upper arm nerve injury, and a lacerated right arm.
In his police interview the respondent admitted that he was intoxicated and on drugs at the time of the offence. The respondent admitted stabbing the victim but claimed that he was acting alone and he denied the allegation that he had asked the victim for money. The respondent said he believed that he was stabbing Freddie who was in a relationship with his ex-partner Sharon. According to the respondent’s account he approached the victim while he was sitting down and stabbed him in the back. The respondent ultimately admitted that he had stabbed the wrong person, the victim obviously having nothing to do with Freddie or his cousin.
Following his arrest and interview the respondent was charged and bail was refused. The respondent pleaded guilty to intentionally casing serious injury at a committal mention on 5 May 2008, and was held in custody from his arrest on 8 January 2008 until the plea hearing on 19 August 2008.
Respondent’s background and personal circumstances
The respondent was 29 years old at the time of sentencing. He was born in Shepparton and had three sisters. The respondent reported being physically abused by his mother in his childhood. At the age of four, his father was killed in a road accident. As a result his mother became depressed and could not cope with the care of her children. She left the family and entered a new relationship. The respondent was placed with family members. Apparently, at around four or five years of age the respondent was sexually abused by an older female.
The respondent was asked to leave school at the age of 14 and he was placed in a centre for aboriginal youth at Healesville. He left shortly thereafter and returned to live with his mother and her new partner in Thornbury. The respondent’s step-father abused alcohol. By the age of 17 the respondent was living on the streets in makeshift accommodation.
After leaving school in Year 10 the respondent undertook a course in landscape gardening, and then worked briefly through the Aboriginal Advancement League. However, the respondent has in effect been unemployed for all of his adult life. This is at least partly due to the fact that the respondent became addicted to drugs and alcohol from around the age of 17. His Honour noted that much of the respondent’s offending, including the offences in the three presentments the subject of this appeal, took place while the respondent was under the influence of alcohol and/or drugs.
As mentioned, in around 2003 the respondent commenced a de facto relationship with Sharon, however she struggled with depression and drug and alcohol abuse. Both the respondent and his partner were unable to cope with caring for their three children. Unfortunately, they were given up by their mother and are now in the care of family members or foster carers. At the time of sentencing the respondent had little or no contact with his children.
His Honour said that the respondent had ‘a long and disturbing criminal history’. He had 60 convictions, including eight for offences of violence from 17 court appearances. He had been sentenced to gaol on nine separate occasions although most involved some sort of suspended sentence. The respondent had breached suspended sentences and community based orders. His Honour concluded:
Clearly none of the indulgences displayed by the courts or the supports provided to you turned you from a never-ending cycle of crime. You have, by your criminal history, shown yourself to be a chronic, determined and unrepentant offender.
Mitigating factors
In sentencing the respondent, his Honour took into account a number of factors in mitigation. First, the respondent’s personal background, particularly the loss of his father, the break up of his family, and his deprived and dysfunctional childhood, were held to be mitigating factors in the respondent’s favour.
Secondly, his Honour found that much of the respondent’s personal experiences related to his aboriginality. His Honour stated:
Whilst race is not a basis for discriminating in the sentencing process and the same sentencing principles apply to an Aboriginal offender as to any other offender, it is appropriate, nevertheless, that I take into account the social disadvantage you have experienced as an Aboriginal member of our society and the impact of that on your rehabilitation.
Thirdly, his Honour took into account that the offending in respect of the second and third presentments took place in the context of the breakdown of the respondent’s relationship with his partner Sharon. This was said to have left him an ‘emotional wreck’ and ‘extremely upset’.
Fourthly, his Honour held that it was an important factor in mitigation that in each instance of offending the respondent made significant admissions when questioned by police. His Honour noted that the respondent had pleaded guilty to all of these offences, including, ‘at the earliest possible opportunity’ in respect of the second and third presentments. His Honour said that he accepted that the pleas reflected genuine remorse and a desire on the part of the respondent ‘to change your life, to establish a meaningful relationship with your three children and to overcome your alcoholism’.
Fifthly, his Honour referred to the respondent’s undertaking to give evidence against his co-offender Kelly. The judge described this as ‘perhaps the most potent example’ of the respondent’s desire to turn his life around.
Sixthly, his Honour took into account the fact that the respondent would serve his sentence of imprisonment in protective custody, which would make the respondent’s incarceration more burdensome than would otherwise be the case.
Finally, the respondent’s steps toward rehabilitation were also considered as a factor in favour of mitigation. It was apparent that the respondent’s drug and alcohol dependence fuelled much of his offending. His Honour was satisfied that the respondent had taken a number of positive steps towards his rehabilitation while in prison, including attending Alcoholic Anonymous meetings and taking a number of courses dealing with his anger management and alcoholism, and also relating to awareness of his aboriginal culture. This led his Honour to the following conclusion:
All of this recent good work suggests that your prospects for rehabilitation are improving but, of course, the true test will come when you are ultimately released into the community. Given the bad criminal history that you have and the multiplicity of offences which you have committed, I could not presently be confident that your prospects for rehabilitation are good. Nevertheless, you are moving in the right direction. I think there is more than a faint hope of rehabilitation which has emerged since the beginning of this year and I intend to act on that factor.[11]
Yours is a very difficult and challenging sentencing exercise but I think you should be given a meaningful opportunity to be further rehabilitated. You will eligible for lengthy parole support and supervision.
[11]DPP v Roe [2005] VSCA 178, [15] (Charles JA).
Aggravating factors
The learned sentencing judge identified two aggravating factors. The first was that the respondent committed the offences the subject of the second and third presentments whilst on bail. His Honour accordingly decided that, for a number of reasons, he would not depart from the clear terms of ss 16(1A)(e) and (3C) of the Sentencing Act 1991 and that the sentences imposed for each of the second and third presentments would be served cumulatively on each other and on the first presentment.
The second aggravating factor, according to his Honour, was that, at least for the second and third presentment offences, the respondent was recklessly intoxicated and drug-affected. His Honour said that this did not happen inadvertently and that the respondent must have known that in such a state he would ‘become disinhibited and were likely to commit offences and act dangerously’. He did not accept the submission that an answer to this proposition was that the respondent was afflicted by addiction.
Considerations in re-sentencing
The re-sentencing of the respondent is not tabula rasa as the sentence cannot exceed that which the judge at first instance would have imposed but for the undertaking.[12] The purpose of s 567A(1A) and (4A) is not punitive but to enable the sentence to be adjusted to the extent considered appropriate.[13]
[12]Director of Public Prosecutions v Mann [2006] VSCA 228, [8] and [10] (Warren CJ).
[13]Director of Public Prosecutions v S [No 2] [2009] VSCA 127, [20] (Vincent, Nettle and Redlich JJA).
As noted above, his Honour said that, but for the guilty pleas, the undertaking to give evidence, the indications of remorse and ‘all other relevant matters,’ he would have imposed total effective sentence on all three presentments of 10 years’ imprisonment with a non-parole period of 7 years. Although the respondent is no longer entitled to a discount for the undertaking to give evidence, he is still entitled to the full benefit of the mitigating factors to which I have referred. First, he did plead guilty and he is clearly entitled to an appropriate discount for that.
Secondly, the respondent’s remorse was to a large degree evidenced by his willingness to assist the authorities. It is apparent, however, that as the respondent’s failure to comply with that undertaking was due primarily to matters beyond his control, the failure to fulfil the undertaking should not alter the finding that there were genuine feelings of remorse expressed by the respondent at the plea.
Thirdly, there is no reason not to continue to give weight to the learned sentencing judge’s remarks about possible rehabilitation of the respondent. Whilst the giving of false evidence at Kelly’s committal hearing could reflect on the prospects of the respondent’s rehabilitation it is not a major consideration, in my opinion, when one takes into account the circumstances of the respondent at that time. Through no fault of his own, he was placed in an invidious situation. It was accepted by counsel for the appellant that this was not a case where the prisoner was never going to honour his undertaking and therefore that the failure to do so should not be seen as necessarily contradicting his Honour’s findings concerning the respondent’s remorse and his prospects for rehabilitation.
Further, it appears from the evidence that, since sentencing, the respondent has continued to take steps toward rehabilitation. In an affidavit sworn by the respondent on 2 March 2010, which was submitted to the Court subsequent to the hearing of the appeal, the respondent deposed to the fact that he has continued to undertake courses while in prison, and is on a waiting list to undertake a drug and alcohol program. The respondent also deposed to the fact that he has reinitiated contact with his three children, who have been to visit him four times in the last year.
On the other hand, his Honour’s concern that the respondent would be kept in protective custody, and that his time in custody would be more burdensome because of that, seems to no longer be relevant. This is attributable to the fact that he did not in the end provide that evidence. In any event, it is clear from the respondent’s last affidavit that he is presently housed in the Koori unit of the prison, and is not being held in protective custody.
Taking all of the above into account, I would sentence the respondent as follows:
On the first presentment -
Count 1 ― 18 months’ imprisonment.
Count 2 ― 3 months’ imprisonment.
This makes a total effective sentence of 18 months’ imprisonment. (As stated below, I would order that only 9 months of this sentence be cumulated in order to give some degree of parity between the co-offenders Hayes, Weston and the respondent.)
On the second presentment -
Count 1 ― 18 months’ imprisonment.
Count 2 ― 12 months’ imprisonment.
Count 3 ― 21 months’ imprisonment.
Count 4 ― 15 months’ imprisonment.
Count 5 ― 9 months’ imprisonment.
Count 6 ― 9 months’ imprisonment.
I would order that 3 months of each of the sentences on counts 1 and 4 and 1 month on each of the sentences on counts 2, 5 and 6 be served cumulatively upon the sentence imposed on count 3, making a total effective sentence of 2 years and 6 months’ imprisonment.
On the third presentment -
Count 1 ― 3 years and 9 months’ imprisonment.
(Sentenced as a serious violent offender.)
I would also order that the sentence on the third presentment be the base sentence and that all of the total effective sentence on the second presentment and 9 months of the sentence on the first presentment be cumulated upon the sentence on the third presentment and upon each other. This makes a total effective sentence on all three presentments of 7 years’ imprisonment. I would order that the respondent serve a minimum of 4 years’ imprisonment before being eligible for parole.
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