Director of Public Prosecutions v Le
[2019] VCC 1151
•24 July 2019; Revised 3 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-02089
AP-18-3141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN LE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 July 2019 | |
DATE OF SENTENCE: | 24 July 2019; Revised 3 September 2019 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1151 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – attempt to pervert the course of justice – sustained attempts from prison to dissuade a witness from testifying – appeal from sentence – firearm related offences – inability to rely on evidence regarding the reason for the possession of firearm – significant criminal history – extension of existing non-parole period
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Harrold | Office of Public Prosecutions |
| For the Accused | Ms A. Liang | Giorgianni & Liang Lawyers |
HER HONOUR:
1 On 25 November 2015, police executed a search warrant at a unit in Carlton. You, Tristan Le, were living there at the time. In your bedroom, a loaded handgun was found, concealed between two mattresses lying one on top of the other on the floor. You were charged with being a prohibited person in possession of a firearm, possession of an unregistered handgun and possession of cartridge ammunition without a licence. The date of each of those offences was the day of the execution of the warrant, 25 November 2015.
2 Some months later, your then girlfriend, Phoebe Irwin[1], who was then 17 years old, told police the gun belonged to her. She told them in a recorded interview she had obtained it from a male friend and had produced it and shown it to you the day before the execution of the warrant. She said that she had given it to you, you had inspected it, told her it was real, then gave it back to her and told her to get rid of it. She said that, unbeknown to you, she had then thrown it under, or concealed it between, the two mattresses which comprised the bed.
[1] Phoebe Irwin is a pseudonym name
3 As a result of the account given by Ms Irwin, she was charged with possession of the handgun and, in May 2017, was dealt with in the Children’s Court by way of diversion.
4 Also, as a result of the account given by Ms Irwin, you were charged with further offences relating to being a prohibited person possessing a firearm on the day before the execution of the warrant. Ms Irwin’s account, whether or not the intention was originally to exculpate you in respect of the knowledge of the existence of the handgun in your room on the day of the execution of the warrant, ultimately lead to evidence that fixed you with actual physical possession of the firearm on the day before the execution of the warrant. And it was as a result of that, as I understand it, that the further charge of being a prohibited person in possession of a firearm on the day before the execution of the warrant was laid.
5 Sometime after Ms Irwin had given her account to the police and you were charged with the further offences, you were served with the brief of evidence in respect of your outstanding summary charges. That brief of evidence named Ms Irwin as a witness and included the transcript of her interview with the police in which she had given the account to which I have just referred.
6 Your charges were listed for a contested hearing in the Magistrates' Court on 29 June 2017. You did not appear. The informant contacted you by telephone and, in the course of a discussion with you, disclosed that Ms Irwin was present at court and that the prosecution intended to call her as a witness. You still did not appear and a warrant was issued for your arrest.
7 You were arrested on 19 July 2017 and remanded in custody. A new contested hearing date was fixed for 2 March 2018.
8 Whilst on remand, you were in regular telephone contact with Ms Irwin. The calls were recorded on the prison recording system. I should note that, in addition to the warrant on which you were arrested, you were arrested on other charges on 19 July 2017, in circumstances to which I will refer later.
9 Between 4 August 2017 and 5 March 2018, you attempted to persuade Ms Irwin to either change her evidence or not give evidence in respect to the firearms charges you were facing in the Magistrates' Court. You used a combination of threats of violence and emotional manipulation. In total, on six separate occasions you told Ms Irwin not to attend court. On 23 occasions you blamed her for the charges you faced, calling her, amongst other things, a 'snitch', a 'lagging dog', and a 'rat'. On 12 occasions you pressured her or instructed her in relation to the content of her evidence. On 34 occasions you threatened Ms Irwin, her family or her friends. Some of the most egregious examples of this conduct are set out below:
a) On the 4 August 2017, you told Ms Irwin you would receive a worse sentence because she is going to attend Court and snitch on you for the gun.
b) On the 25 August 2017, the following exchange took place:
ACCUSED: well you fucked me boo, thanks...they're gonna call you as a witness now baby, yeah you fucked me bad you messed me up last time you said that's all you said now I ended up getting charged with a handgun.
IRWIN: they made me sign it, it's like a statement.
ACCUSED: a statement is when you lag on somebody...don't be upset it's not you who's in jail.
c) In a subsequent call on the 25 August 2017, you discussed Ms Irwin speaking with the Accused’s lawyer. You said ‘you snitch that's the shit I don't like, you cost me my future. I’ve already told everybody you put a statement on me, they’re gonna shiv you in the showers.’
d) On the 6 February 2018, you and Ms Irwin discussed Ms Irwin not answering her summons. You called Ms Irwin a snitch and told her not to answer the summons or call the Informant. You said, ‘you just don’t call my little angel and you know who will get out? I will.’ This call was immediately followed by a second call where you said, ‘you know what happens, I’m going to tell you a story alright. My court case, let’s say I’ve only got 2 witnesses yeah, and those two witnesses don’t show up, I get out. Kapishka?’
e) On the 14 February 2018, Ms Irwin questioned whether the charges will be dropped if she doesn’t attend Court. You told her that they will be and that she was not allowed to attend Court.
f) On the 17 February 2018, during the course of an argument, you threatened Ms Irwin’s friend, ‘You know I am going to kill Erin[2] when I get out. I’m going to throw her in the ocean with cinder blocks on the legs, is that what you want? … Oi, why don’t you go take the stand some more, you snitch.’
[2] Erin is a pseudonym name
g) On the 18 February 2018, Ms Irwin told you that she would send you to jail for life. In response, you said, ‘Bro, you couldn't get me in jail for the rest of my life for one. Two, I’ll make sure you go down with me you little prick. Three, you'll live life in a wheelchair you fucking mongrel.’ You then said you were joking before you made further threats against Ms Irwin’s friend Erin.
h) On the 20 February 2018, you argued and you said: ‘You fucking mutt. I'm gonna punch you in the neck when I get out you little dog … go hang yourself you little slut. I don't care if you cut yourself you stupid bitch. I hope you get fucking killed you little piece of shit you know that? ... One day, I'm gonna stomp your fucking head one day, you little cock sucking rat. I don't want to see you you ugly piece of shit ... What have you done for me you little piece of shit. All you ever do is make my life harder.’ The conversation continued across a second call where you said ‘I’m going to smash you, you're fucked you little rat … your nan's gonna die now you fucking rat. Watch your little sister get stomped, your sister's gonna get thrown in front of a train.’
i) On the 25 February 2018, the following exchange took place:
ACCUSED: Go find a lawyer and just tell them.
IRWIN: They’re not gonna help me.
ACCUSED: [Laughing].
IRWIN: They’re gonna tell me-
ACCUSED: No they won’t.
IRWIN: - to, you know -
ACCUSED: Well then you say the honest … You say the honestly that the – the – the other one, that you – that you lied.
IRWIN: What?
ACCUSED: You gotta say that you lied, you made a mistake. I don’t know bro, just go see a lawyer, I don’t really care…
j) In a subsequent call on the 25 February 2018, when discussing the upcoming hearing, you said ‘You best remember that that if you wrong me I will kill you.’
k) On the 1 March 2018, the day prior to the Contested Hearing, you and Ms Irwin spoke on a number of occasions. During the calls, you told Ms Irwin that, without her, the police don’t have a case, suggested that she not attend and told her that she can change anything that she said in her interview.
10 Ms Irwin did not attend court on 2 March 2018, the day the contested hearing had been relisted. That was despite the fact that she had been served with a witness summons. The hearing was adjourned as a result of her non-attendance. Later that day, a further recorded telephone call between you and Ms Irwin, revealed her as saying “I got really paranoid and I did not go… I just don't want to go. I don't know what to say, I don't want to go.”
11 The informant contacted Ms Irwin on that day. She claimed, falsely, that she was unable to attend court as she was required to look after her grandmother, who was ill. You were interviewed by the police later that day. In the course of that interview, you said that you had spoken to Irwin the day before and told her, 'Come to court. You will get into trouble if you don't'. You said you had also told her, 'You don't have to come if you don't want to'. You said that you could not recall any specific times that you had told Irwin not to attend court. You said that you had never threatened her. You said that you could not recall when you became aware that she was a witness, but then stated that someone had told you a week earlier. You said that you had not been calling her a snitch, that you had been repeating the lyrics of a Chris Brown song and that you did not know what snitch meant.
12 Some of the recorded calls were played to you or read to you. You repeatedly stated, when confronted with the content of those calls, that it was a joke and that you and Ms Irwin had never had serious conversations and that she knew that you were joking. Even after that interview, you continued to abuse and intimidate Ms Irwin over the telephone, in calls which were again recorded on the prison system.
13 It is that conduct that gives rise to the charge of attempt to pervert the course of justice, to which you pleaded guilty before me on 10 July 2019 and for which I now come to sentence you.
14 Ultimately, the proceedings relating to the possession of the firearm were resolved. On 17 December 2018, you pleaded guilty to one charge each of possession of an unregistered category E handgun, possession of cartridge ammunition without a licence or permit and dealing in property suspected to be the proceeds of crime. Those three charges related to the day of the execution of the warrant. You also pleaded guilty to one charge of being a prohibited person in possession of a firearm. That charge related to the day before the execution of the warrant. It was therefore referable to the account given by Ms Irwin. And you pleaded guilty, too, to three separate charges of failing to answer bail in respect of those charges. Your pleas of guilty to those charges resulted in the withdrawal of other charges including one of being a prohibited person in possession of a firearm on the day of the execution of the warrant. By your pleas of guilty you acknowledged that you were in knowing possession of the firearm on the day of the execution of the warrant and the day before.
15 You were sentenced in the Magistrates' Court to a total effective sentence of nine months' imprisonment. On the individual charges, you were sentenced to a term of nine months' imprisonment in respect of the prohibited person charge, four months in respect of the possession of the unregistered firearm and possession of ammunition without a license or permit, one month imprisonment in respect of the charge of dealing in property suspected to be proceeds of crime and one months' imprisonment in respect of each of the charges of fail to answer bail. Obviously, all sentences were directed to be served concurrently. That made a total effective sentence of nine months.
16 You were, by the time you were sentenced in the Magistrates' Court, serving another term of imprisonment and you were directed to serve three months of that total effective sentence of nine months cumulatively upon the other sentence you were then undergoing. There was no increase to the non-parole period that had been fixed in respect of the other sentence.
17 You have appealed the sentences imposed in respect of the Magistrates' Court charges and that appeal was heard at the same time as your plea in respect of the attempt to pervert the course of justice charge.
18 You have a significant and troubling criminal record for a person who is still relatively young, in his mid-20s.
19 In 2014, you were convicted of charges of making threats to kill, threat to inflict serious injury, unlawful assault, contravene a family violence interim intervention order, contravene a family violence intervention order and fail to answer bail. You were convicted and placed on a community correction order for a period of 12 months. In July 2015, you were dealt with for contravening that community correction order. By then, the order had expired and it was cancelled with no further orders being made.
20 In July 2014, you were convicted of a further six charges of contravene a family violence interim intervention order and one of recklessly cause injury. For those charges, you were sentenced to an aggregate term of imprisonment of four months, which was suspended for two years. It would appear from my reading of your criminal history that, although you committed further offences within the operational period, no action has been taken in respect of the breach of the suspended sentence.
21 In April 2015, you were convicted of charges of intentionally cause injury, unlawful assault and fail to answer bail and sentenced again to a total effective sentence of 4 months' imprisonment.
22 In July 2015, you were convicted of being a prohibited person in possession of a firearm and sentenced to a term of imprisonment of six months, followed by an 18 month community correction order. On the same day, you were convicted and fined for using a carriage service to harass. You have twice been dealt with for breaching the community correction order for this offence. The first time was on 20 April 2016, when a 15 month community correction order was substituted and, on 24 February 2017, when you were sentenced to a period of two months' imprisonment. I have deliberately omitted from this recitation your appearances before the Children's Court. In my view, they are not relevant for any sentencing purposes in a way that could be determined adversely to you.
23 It was only four months after the original sentence for being a prohibited person in possession of a firearm, that is in November 2015, that police executed the search warrant which gave rise to the firearms charges, which are the subject of the sentence appeal and the underlying cause of the offence of attempt to pervert the course of justice.
24 Since then, you have also been sentenced, in April 2017, for possession of GHB and possession of a prohibited weapon without exemption or approval. You were fined for those charges an aggregate sum of $800.
25 All of these matters are properly to be regarded as prior convictions for the purpose of the charge of attempt to pervert the course of justice and all, but the charge of possession of GHB and prohibited weapon, are relevant prior convictions for the purpose of the possession of firearms charges.
26 Although not a previous conviction, it is also relevant to assessing your general circumstances and your prospects for rehabilitation that you are currently serving a sentence of imprisonment for a charge of reckless conduct endangering life and another charge of being a prohibited person in possession of a firearm. The prohibited person charge relates to possession of a firearm on 13 July 2017 and it was following that, that you were arrested and remanded in custody and when it would appear the warrant for your non-appearance in respect of the firearms charges I am dealing with was executed.
27 The reckless conduct charge relates to a shooting offence which occurred on 8 June 2017. On 20 August 2018, you were sentenced in this court by his Honour Judge Carmody to a total effective sentence of four years, with a non-parole period of two years and nine months for those offences and it is on that sentence that the three months of the sentence imposed in the Magistrates' Court for the possession of firearms charges in December 2018, was ordered to be served cumulatively.
28 So, by the time you came to be charged with the possession of firearms offences as a result of the execution of the warrant in November 2015, you had been sentenced four months earlier for a charge of being a prohibited person in possession of a firearm. And whilst the hearing for those charges arising out of the execution of the warrant in November 2015 was pending, you committed, barely five weeks apart in mid-2017, the offences of reckless conduct endangering the life of a person by shooting, in a populous area, and on a separate occasion again of being a prohibited person in possession of a firearm. The firearms the subject of those two charges were separate, distinct firearms. You were remanded in custody, as I have noted, following your arrest after the 13 July 2017 offence and it was within a month of your remand for those charges, that you embarked on the course of conduct of threats and coercion which gives rise to the charge of attempt to pervert the course of justice, to which you have now pleaded guilty.
29 It was put on your behalf on the plea that the attempt to pervert the course of justice charge fell into the low to mid-range. Specifically, it was put that the offending was unsophisticated, as you knew the calls were recorded and that the offending was therefore easily detectable. Although Ms Liang acknowledged the charge covered a period of seven months, she submitted that there were only six calls in which you told Ms Irwin not to attend court, and it was only those that substantiated the charge. She further submitted that the objective gravity of the original offending (that is, the firearms offences) to which the charge of attempt to pervert the course of justice related, was relatively low and that the effect of your conduct on Ms Irwin’s decision not to attend court was negligible.
30 Ms Liang also submitted that the firearms offences fell in the low range. She submitted the possession was only for a few minutes, for inspection and before you told Ms Irwin to get rid of it. She submitted you were not aware that she had placed it under the mattress. Finally, she submitted the possession was not for any ongoing criminal activity.
31 I disagree with Ms Liang's submissions about the level of gravity of both the attempt to pervert the course of justice charge and the possession of firearms charge.
32 So far as the attempt to pervert the course of justice charge is concerned, whilst I do not accept that the effect of your conduct on Ms Irwin’s decision not to attend court was negligible, as Ms Liang ultimately acknowledged, the gravamen of the charge is the conduct that gives rise to the attempt. Whether the conduct had the desired effect or not is really not to the point.
33 I also disagree with her submission that it is only the small number of calls in which you told Ms Irwin not to attend court, that substantiate the charge. It is not only the six occasions on which you told her not to attend court that are relevant to an assessment the gravity of your conduct in attempting to pervert the course of justice. The other calls blaming her for the charges, pressuring her or instructing her in relation to the content of her evidence and the threats to her, her family and friends are also relevant and part of the circumstances of the offence of attempt to pervert the course of justice.
34 In addition to the summary of calls in the prosecution opening to which I have referred already, the prosecution provided a schedule to its opening, setting out the detail of each of the calls falling within those categories. The schedule is extensive and, in my view, the content of the calls seen as a whole is chilling. There were clear persistent and repeated efforts over an extended period to exercise coercive control over Ms Irwin. She was only 17 at the time of making her statement to the police and 18 or 19 during that seven-month period covered by the charge. You were significantly older.
35 There was some variance in the information provided to me about your age. Your criminal history records your date of birth as 15 June 1992. That would make you now 27. The Magistrates' Court extracts relating to the firearm charges record your date of birth as 19 June 1993. That would make you now 26, and with a different day of the month as your birth date as well as a different year. The report prepared by the psychologist, Mr Geoffrey Cummins, for the plea hearing before his Honour Judge Carmody, recorded your birth date as 15 June 1993. That is the same day of the month as is on your criminal history, but a different year. Again, that would make you now 26. His Honour Judge Carmody said that you were 25 at the time he sentenced you, in August last year. That would make your year of birth 1993. The outline of submissions provided by Ms Liang initially had you as being now 27 years of age, born in 1992. When you were arraigned before me and your particulars were taken, you gave your date of birth as 19 June 1993 and your age as 26. That is the same date as the Magistrates' Court extracts relating to the firearms charges.
36 Whatever your correct day and year of birth, you are no longer to be regarded as a young offender and able to call in aid the principles in Mills,[3] even counterbalanced as they would be and, as noted by his Honour Judge Carmody when sentencing you, by the principles outlined in cases such as Azzopardi.[4] In that case, the court held the degree of criminality of offences may require the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus and the weight to be attached to youth to be correspondingly reduced.
[3]R v Mills [1998] 4 VR 235.
[4]Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43.
37 For my purposes, suffice it to say that you were 23 or 24 at the time that you committed the firearms offences the subject of the appeals, and 24 or 25 at the time of making the phone calls, the subject of the attempt to pervert the course of justice charge. You are now 26 or 27.
38 You are a person who, by the time of the commission of the attempt to pervert the course of justice offence and the firearms offences, had already amassed a significant criminal record for offences relating to firearms, infliction of actual physical violence, threats to kill or injure and contravention of family violence intervention orders. In my view, the threats made in the course of the attempt to pervert the course of justice charge are made even more serious by that criminal history. In my view, the power imbalance between you and Ms Irwin was significant.
39 I do not accept Ms Liang’s submission that the language used by you and Ms Irwin was simply a reflection of the way you spoke to each other. I see no reason not to give the ordinary meaning to the words used by you and the nature of the threats uttered by you. The fact that an 18 or 19-year-old, speaking to you over the telephone whilst you are in custody, also used pejorative language and defiantly at times said that she was not afraid of you, does not diminish the seriousness of the threats or the other coercive conduct engaged in by you.
40 So far as the possession of firearms charges are concerned, I was not prepared to act solely on the statement provided by Ms Irwin to make affirmative findings in your favour that your possession of the firearm came about in the circumstances described in her account to the police, namely that she had obtained it from someone else for her protection, shown it to you, that you had only handled it briefly to inspect it and confirm that it was real before returning it to her and telling her to get rid of it. As I said in the course of the plea, the evidence did not permit me to make findings adverse to you in respect of the circumstances in which you came into possession of that firearm. However, I was not satisfied that the mitigating factors relied on by reference to Ms Irwin’s statement were established on the balance of probabilities to my satisfaction. Thus, I was left in a position where I could make no findings as to any aggravating or mitigating factors relating to the circumstances of your possession of that firearm, based on Ms Irwin’s statement.
41 The most I could find was that the firearm was found in your room between the mattresses on the date of execution of the warrant and that, by your plea of guilty to the charge of being a prohibited person in possession on the day before the execution of the warrant and your plea of guilty to the charge of possession of an unregistered firearm on the day of the execution of a warrant, you acknowledged it was knowingly in your possession the day of the execution of the warrant and the day before. There is no evidence that permits me to make an affirmative finding in your favour that your possession was not for any ongoing criminal activity. Having said that, as I pointed out to Ms Liang in the course of the plea, there is no evidence that would permit me to make a finding of an aggravating circumstance in relation to possession, such as possession for ongoing criminal activity. Again, I am left in a neutral position where I can make no findings about your purpose for possession.
42 The evidence of the circumstances of this offending coupled with the evidence of your previous convictions and the circumstances of your more recent conviction and sentence for reckless conduct endangering life, for which you were sentenced after this offending but which occurred between the time of possession of the firearms and the time of the attempt to pervert the course of justice charge, gives rise to real concern. The circumstances of the reckless conduct endangering life related, according to his Honour Judge Carmody's reasons for sentence, to shooting at a person to whom you apparently held some grudge, outside a public housing development and in close vicinity of a children’s playground. Although being a prohibited person in possession of a firearm charge in 2017 and 2015 gives rise to a suspicion that you were, at the time of the possession of the firearm the subject of the appeals, engaged in ongoing criminal activity, suspicion about your purpose or motive is not sufficient to make adverse findings in respect of you and I do not.
43 Ms Liang declined the invitation to call evidence to seek to persuade me to make affirmative findings in your favour which would otherwise mitigate the seriousness of the circumstances of the offences relating to possession of the firearms, which are the subject of the appeal.
44 In my view, the objective gravity of the charge of attempt to pervert the course of justice is high. You engaged in a protracted campaign of threats and coercion and it occurred in the context of a relationship with a woman considerably younger and less powerful than you. Having regard to the convictions that you had already amassed by the time you embarked upon this course of conduct, the fact that you were, at the time, in custody on charges of reckless conduct endangering life and a further charge of being a prohibited person in possession of a firearm to which you later pleaded guilty, adds to the seriousness. I note in that context that his Honour Judge Carmody took into account the fact that you entered guilty pleas to those charges at committal. It follows that therefore, from a relatively early stage whilst you were on remand, you accepted your legal and moral culpability for that offending and it is for those reasons that your moral culpability in respect of this offending behaviour is high.
45 As Ms Harrold pointed out in her submissions on sentencing, the offence of attempt to pervert the course of justice cuts to the very heart of the criminal justice system. Attempts to dissuade people from giving truthful evidence before a court are very serious and have a significant impact on the ability of witnesses to feel safe, to feel that they can come to court and give truthful evidence without punishment or without penalty being inflicted on them by people acting outside the law. Those who seek to subvert the law must understand that, if they do so in such a way, they are going to be subject to significant punishment.
46 It is clear therefore that, subject to considerations personal to you, this charge requires denunciation, just punishment, deterrence both specific and general and protection of the community to loom large in the sentencing mix.
47 I was provided with the same psychological report prepared by the psychologist, Mr Cummins which had been provided to his Honour Judge Carmody for that plea. It recounts a history given by you of physical abuse by both your parents in your childhood, little contact with your mother, who you described as a violent alcoholic and who separated from your father when you were 6, and a better relationship with your father from about the age of 13, continuing through to now. The report also recounts the history of disruptive schooling. You have been apparently expelled from a number of schools both primary and secondary for fighting and have a sparse work history. You have a significant history of substance abuse commencing with cannabis at age 13, and now properly regarded as polysubstance abuse. You have variously reported using ice, GHB, Xanax and Valium. However, as his Honour noted, your substance abuse for that offending and for this offending, is not a mitigating factor.
48 I am told that you have been substance free in custody and multiple copies of urinalysis screens for 12 and 13 December 2018 revealed negative results for the common drugs of addiction.
49 Although it appears you have restored your relationship with your father, he and your sole surviving brother were not present at court for the hearing of the plea or the sentencing today. You had one other brother who took his own life two years ago. I am told that you are no longer in a relationship with Ms Irwin but, given the nature of what I am told is the relationship with your father, you do have family support available to you. You have reported a history of relationships with other young women, apart from Ms Irwin. The first significant one resulted in the birth of a child who is now seven. According to Mr Cummins you are banned from seeing that child. I note with concern the history of breach of intervention orders and note also that I was told that some of the threats and violence offences related to threats and violence directed towards your former partners. That, again, adds significance to the nature of the communications that you had with Ms Irwin and, in my view, also devalues the strength of the argument that this was just the way the two of you spoke to each other.
50 It is clear from the report of Mr Cummins that there are no psychiatric or psychological conditions which are relied on to enliven any of the limbs of Verdins. Mr Cummins assessed you as being at moderate risk of committing further offences of violence in the future. In July 2018, he noted your presentation was mildly anxious and mildly depressed. His Honour Judge Carmody assessed your prospects for rehabilitation as relatively poor and I see no reason to disagree with that view.
51 You pleaded guilty to the charge of attempt to pervert the course of justice at an early stage and you are entitled to the full benefit of the utilitarian value of that guilty plea. I do not consider that the bare fact of the plea itself is evidence of remorse and no other evidence of remorse has been presented. That does not aggravate the offending or increase the sentence to be imposed. It merely means there is an absence of what might otherwise have been regarded as a factor to be taken into account in your favour as enhancing your prospects for rehabilitation and reducing the sentence otherwise appropriate. However, I repeat you are entitled to receive the full utilitarian benefit of your early guilty plea.
52 The sentence imposed by his Honour Judge Carmody of four years with a non-parole period of two years and nine months, taking into account the considerable period of pre-sentence detention served by you for those offences, makes you eligible for parole on 4 June 2020. That is about 10 and a half months from now. With the three month cumulation of the nine month total effective sentence for the firearms offences, which are the subject of the appeal before me, your earliest release date is currently 4 September 2021.
53 It was put on your behalf that the sentence for the firearms offences the subject of the appeals, should be ordered to be served wholly concurrently with the other sentences. That is, Judge Carmody's sentence and the sentence that I impose for the attempt to pervert the course of justice. I disagree.
54 I do not consider that total concurrency in respect of the firearms offences is warranted. I have noted that they were committed only four months after you had been convicted and sentenced to a term of imprisonment of four months for being a prohibited person in possession of a firearm and you have not used your time well since November 2015, when you were charged with those possession offences. In June and July 2017, you committed the offences for which his Honour Judge Carmody sentenced you. Both those offences were firearm related and it was within a month of your remand in custody for those offences that you commenced the course of conduct that gave rise to the seven-month period of threats and coercion, the subject of the attempt to pervert the course of justice charge. In my view, therefore, some cumulation in respect to the firearms charges is clearly warranted.
55 On the appeal, I must set aside the sentences imposed by the Magistrates' Court and sentence you afresh. An appeal to this court is not an appeal against severity of sentence, nor does it require identification of specific sentencing error. I am at large. Whilst I consider the period of partial cumulation imposed in the Magistrates' Court to be moderate, even merciful, I do not consider it appropriate to impose a period of cumulation greater than that imposed by the magistrate. In re-sentencing you for the Magistrates' Court offences, I note that the possession of proceeds of crime charge relates to possession of a student card belonging to somebody unknown to you and which was found at the time of the execution of a search warrant, when the firearm was found. I also note that the maximum sentence for possession of ammunition without a licence, is a fine of 40 penalty units. The magistrate imposed a term of imprisonment of four months. That clearly must result in a re-sentencing to a fine. Otherwise I do not propose to interfere with the sentence below.
56 Ms Liang acknowledged that imprisonment was warranted for the offence of attempt to pervert the course of justice and submitted that the sentence should not be crushing. Her acknowledgement that imprisonment was warranted is appropriate and I agree that it should not be crushing. The maximum sentence for the charge of attempt to pervert the course of justice is high, 25 years imprisonment, that is level 2, reflecting its seriousness.
57 Having regard to the unexpired portion of the sentence you are currently serving and the need to avoid a sentence that is crushing, it is clear that some degree of concurrency between the sentence for attempt to pervert the course of justice and the sentence that you are currently serving is warranted and that therefore informs the sentencing structure that I have imposed. Could you now please stand, Mr Le?
58 Sentence: In appeal AP-18-1314.
a) the orders of the Magistrates' Court at Melbourne made on 17 December 2018 are set aside and, in their stead, the following orders are made;
b) you are convicted on all charges;
c) on Charge 2, possession of an unregistered handgun, you are sentenced to be imprisoned for a period of four months imprisonment;
d) on Charge 3, possession of cartridge ammunition, you are fined an amount of $1,000;
e) on Charges 6, 7 and 10 of fail to answer bail, you are sentenced on each of those to a period of imprisonment of one month;
f) on Charge 8, being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for a period of nine months;
g) on Charge 9, dealing with property suspected of being proceeds of crime, you are sentenced to be imprisoned for a period of one month; and
h) all sentences to be served concurrently with each other.
59 That makes a total effective sentence in respect to the appeal of nine months and a fine of $1,000.
60 So far as the charge of attempt to pervert the course of justice, you are convicted and sentenced to be imprisoned for a period of two years and six months.
61 I direct that three months of the sentence on AP-18-1341 be served cumulatively upon the sentence imposed on the charge of attempt to pervert the course of justice.
62 That makes a total effective sentence for the appeal and the attempt to pervert the course of justice charge, of two years and nine months' imprisonment.
63 I direct that two years and three months of that total effective sentence be served cumulatively upon all sentences currently being served (namely the sentence imposed by his Honour Judge Carmody on 20 August 2018).
64 It is my intention to fix a new non-parole period by adding a further period of 15 months to the non-parole period previously imposed. That means, that if backdated to the date of imposition of the sentence by his Honour Judge Carmody, rounded down that would be a non-parole period of four years, backdated to the date of his Honour Judge Carmody's sentence. Having regard to the 10 and a half months of unexpired non-parole period, rounded down, that makes a new non-parole period from today of two years and one month.
65 I note that there is no presentence detention in respect of the charge of attempt to pervert the course of justice or in respect of the charges the subject of the appeal.
66 I declare that pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty to the charge of attempt to pervert the course of justice, I would have imposed a term of imprisonment of four years. I declare, in respect of the appeal, that, but for the pleas of guilty, I would have imposed a total effective sentence of 14 months.
67
I make the forfeiture order in respect of the appeals and I note that the sentences I have imposed today have been imposed in accordance with
R v Stares[2002] VSCA 70 at paragraphs [24] to [25], in the expectation that the pre-sentence detention of 403 days declared by his Honour Judge Carmody on 20 August 2018, will be administratively taken into account. Do the sentences that I have declared, reflect what I have said is my intention? Is my arithmetic correct?
68 MS HARROLD: According to my notes - - -
69 HER HONOUR: Doing the rounding down.
70 MS HARROLD: Sorry, your Honour. According to my notes, I think your Honour is correct. Once we get the record of orders, I will double check that however, but according to my notes, I think Your Honour is correct.
71 HER HONOUR: And doing the arithmetic, whether it is counting on your fingers or doing with a calculator?
72 MS HARROLD: Like I say, I think the arithmetic is correct, your Honour.
73 HER HONOUR: Yes. I have certainly - my intention is very clear.
74 MS HARROLD: Yes.
75 HER HONOUR: It is an extra 15 months to the non-parole period already imposed.
76 MS HARROLD: Yes.
77
HER HONOUR: So, backdated to Judge Carmody's sentence. A four-year non-parole period altogether, or from today rounding down for the half
month - - -
78 MS HARROLD: Yes.
79 HER HONOUR: - - - that is 10 months plus the 15 months, is 25 months or two years and one month.
80 MS HARROLD: Yes.
81 MS LIANG: Your Honour - - -
82 HER HONOUR: Do you agree with that calculation, Ms Liang?
83 MS LIANG: Just on hearing it, yes, your Honour but like my learned friend has indicated, we will have to recheck the orders. But from what your Honour has said in the courtroom, it sounds about right.
84 HER HONOUR: All right. Well, you do that and if there is anything you need to bring to my attention please do, and I can correct it under the slip rule.
85 MS LIANG: Yes, your Honour.
86 HER HONOUR: Have I been provided with a copy of the forfeiture order?
87 MS HARROLD: That should have been e-Lodged in the appeal matters, Your Honour.
88 HER HONOUR: Very well. All right, I will sign that in Chambers and provide that.
89 MS HARROLD: Thank you, your Honour.
90 HER HONOUR: Any further orders required to be made?
91 MS LIANG: No, your Honour.
92 MS HARROLD: No.
93 HER HONOUR: Thank you. Could you remove Mr Le please?
94 (At this stage the accused left the court.)
95 Thank you.
Addendum
96 Since passing sentence, Ms Liang sent an email to the Court and the prosecution advising that, although in her plea outline she had stated Mr Le’s earliest release date was 4 June 2020 and the sentence end date was 4 September 2021, those dates included the sentence imposed in the Magistrates’ Court. The Magistrates’ Court sentence was a “straight sentence” of 9 months, with 3 months to be served cumulatively on the sentence imposed by Judge Carmody.
97 Ms Liang advised she had re-checked the correspondence from Corrections and had found that the earliest release date from Judge Carmody’s sentence alone was 4 March 2020, that is, 7 months and 9 days from the date of my sentence. She submitted that, as I had declared my intention to impose a further 15 months imprisonment to the balance of the minimum term of Judge Carmody’s sentence, the new single non parole period should be 22 months, not 25 months.
98 After further correspondence, by email dated 14 August, my associate advised the parties in these terms:
“Dear Parties,
Her Honour Judge Hampel has considered the correspondence from the parties in relation to the correct declaration of sentences in this matter. Please find attached the transcript of the sentencing remarks for your reference.
It was her Honour's intention, as declared, to add a further 15 months non-parole period to the non-parole period fixed by his Honour Judge Carmody and, by imposing the same sentence of imprisonment as was imposed in the Magistrates' Court (apart from charge 3, the possession of cartridge ammunition for which only a fine can be imposed) for the summary charges the subject of the appeal, to require 3 months of the summary charges sentence to be served cumulatively on the two superior court sentences.
The effect of the imposition of a “straight sentence” by the Magistrates' Court was, by operation of s 15(1)(a) of the Sentencing Act 1991, to suspend service of his Honour Judge Carmody’s sentence to allow 3 months of its sentence (that is, the part to be served cumulatively on his Honour’s sentence) to be served before his Honour’s sentence resumed as directed by s 15(1)(b).
What her Honour intended to achieve was to add 3 months of the appeal sentence, as if it were still a “straight sentence” to the unexpired non parole period from his Honour Judge Carmody’s sentence, to the additional 15 months non-parole period she intended to impose. Thus, the earliest release date was intended to be the total of:
1. the 3 months of the appeal sentence directed to be served cumulatively;
2. the unexpired portion of his Honour’s non-parole period; and
3. the additional non-parole period her Honour intended to add to his Honour’s unexpired non-parole period.
What was not drawn to her Honour's attention at the time was that, as the earliest release date was calculated in accordance with ss 15(1)(a) and (b), by setting aside the orders of the Magistrates' Court, as is required by s 256(2) of the Criminal Procedure Act 2009, the 3 months cumulative portion of the Magistrates' Court sentence was removed from the calculation of the earliest release date referrable to the unexpired non-parole period. And, by structuring the sentences imposed on 24 July as her Honour did, by making a partial cumulation order between the sentence on the indictable charge and the summary charges the subject of the appeal before calculating the length of the new single non-parole period (as required by s 14 of the Sentencing Act), s 15(1)(a) could not operate to make the 3 months cumulative on that new, single non-parole period.
Her Honour invites submissions from the parties as to the best way to ensure the orders correctly reflect her intention.”
99 Ultimately, the matter was mentioned before me on 3 September 2019. I confirmed what was set out in the email of 14 August, as to my intention. That is, that I had intended that the applicant serve, before being eligible for release on parole, the unexpired portion of the non-parole period fixed by Judge Carmody, three months of the nine month sentence imposed by the Magistrates’ Court and 15 months of the sentence imposed in respect of the indictable charge of attempt to pervert the course of justice.
100 On the basis that was what I had intended, the parties agreed that the formal orders pronounced by me reflected what I had intended, that is a 9 month sentence in respect of the appeal, three months of which was to be served cumulatively on all other sentences, and with a new single non parole period of 2 years and 1 month from 24 July 2019.
101 However, the reference in paragraph 64 of my original reasons to 10 and a half months as the unexpired non parole period in respect of Judge Carmody’s sentence was incorrect. The unexpired non parole period was 7 months and 9 days. It followed that, in order to reflect my intention to add a further 15 months in respect of the attempt to pervert the course of justice charge to the total of the unexpired portion of Judge Carmody’s sentence, and the 3 months of the appeal sentence which was to be served cumulatively, 18 months, not 15 months, needed to be added to that unexpired portion of Judge Carmody’s non parole period. And I so declare.
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