Director of Public Prosecutions v Pau
[2007] VSCA 238
•29 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 45 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ION PAU |
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JUDGES: | NETTLE, ASHLEY and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 October 2007 | |
DATE OF JUDGMENT: | 29 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 238 | |
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Criminal law – Sentencing – Crown Appeal – Two presentments including counts of armed robbery, intentionally causing serious injury and arson – Cumulation – Whether judge erred in failing to order any part of the total effective sentence be served cumulatively on earlier sentence currently being served – Serious and lifelong consequences for victims of counts the subject of both presentments – Acquiescence – Whether judge misunderstood Counsel over need for cumulation between sentences – Whether sentence manifestly inadequate – Appeal upheld
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr R Richter QC with Mr J D Singh | Galbally O’Bryan |
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NETTLE JA:
This is a Crown appeal against a total effective sentence of eleven years and nine months' imprisonment, with a non-parole period of six years and six months, which was imposed on the respondent on 1 February 2007 after pleading guilty to two counts of theft on presentment No C0504644.3 (“the TAB Presentment”) count 1 and on presentment No C0504644.4 (“the South Melbourne Market Presentment”) count 1; three counts of armed robbery, on the TAB presentment count 2 and on the South Melbourne Market Presentment counts 4 and 5; one count of arson, on the TAB presentment count 3; and one count of intentionally causing serious injury, on the South Melbourne Market Presentment count 3. The offences the subject of the TAB Presentment were committed on 26 April 2005, and the offences the subject of the South Melbourne Market Presentment were committed between 16 May 2005 and 22 May 2005.
The Crown does not suggest that any of the individual sentences is inadequate or that the degree of cumulation as between the individual sentences is insufficient. The complaint is that the judge failed to order that any part of the total effective sentence be served cumulatively on an earlier sentence of six years with a non-parole period of four years and six months' imprisonment which was imposed on the respondent on 17 October 2006 upon conviction of one count of rape committed in 1999.
(i) The TAB Presentment
The facts appear in the judge's sentencing remarks. On 26 April 2005, Eleanor Baker was working at the TAB in Leonard Avenue, Noble Park. The respondent arrived at about 1 p.m. with his co-offender, Darren Parkes. The respondent was driving a car which he had stolen from the Yarraman railway station earlier that day (count 1 theft).
Parkes was armed with a sawn-off .22 calibre rifle and wearing a dark-coloured balaclava. The respondent double-parked the car near to the TAB and Parkes got out, entered the TAB and yelled several times words to the effect of "this is a hold-up, everyone down". The five or so customers in the shop lay on the floor as Parkes approached the counter area and began kicking the door to that area. Ms Baker opened the door and Parkes entered it. Parkes directed Ms Baker to remove money from the register and place it in a dark-coloured bag, which she did. He then went to the rear of the TAB and asked for all the money. During that time he was pointing the rifle directly at Ms Baker. He also went to another cash register and opened the drawer, but it was empty. Parkes then told Ms Baker to lie on the floor and he left the TAB. The total amount stolen was approximately $1,280 (count 2 robbery).
The respondent then drove Parkes from the TAB to Kirk Street, Noble Park, where the two of them set the car alight and departed in another vehicle (count 3 arson).
(ii) The South Melbourne Presentment
Shortly after 5.30 p.m. on Sunday 22 May 2005, Mr Benedetto Riccardi finished work at the fruit stall which he owned and operated at the South Melbourne Market. He left with the stall's takings of approximately $15,200 and a float of approximately $500 in coins in several bags. He drove to a car park in South Melbourne. His sister-in-law, Nancy Carrone, followed behind him. The respondent and Parkes also followed. The respondent was driving a red Saab sedan that he had stolen from St Kilda West almost a week earlier, on 16 May 2005 (count 1 theft).
Parkes had with him the same sawn-off .22 calibre rifle he had used in the TAB robbery and once again he had disguised himself with a dark-coloured balaclava. The respondent was armed with a baseball bat and he had disguised himself by wearing a baseball cap and a handkerchief covering his face. Mr Riccardi drove into the car park and parked his car against one of the walls. The respondent drove in behind in the stolen Saab and pulled up behind Mr Riccardi's car so as to block egress. As Mr Riccardi got out of his car, Parkes jumped out and yelled several times at him to hand over the money. Mr Riccardi responded to the effect that he did not have any money. Parkes then told the respondent to get out and bash Mr Riccardi, and the respondent got out and he walked towards Mr Riccardi with the baseball bat raised in a threatening position. There was then a struggle, during which Parkes shot once at Mr Riccardi. The bullet passed through the respondent's right thumb and into the middle of Mr Riccardi's back where it lodged in his spine. The respondent dropped the bat. Mr Riccardi fell to the ground. He had lost control of his lower body and was unable to get up.
Parkes then pointed the rifle at Ms Carrone and demanded money and property from her. Terrified, she handed over her purse and mobile telephone (count 4 armed robbery). Parkes went next to the front passenger seat of Mr Riccardi's car and took the bag containing the float of about $500 (count 5 armed robbery) and then he walked back to where Mr Riccardi was lying on his back on the ground. He stood approximately two metres from him and said, "You might as well die now." The respondent did not do or say anything to stop Parkes, and Parkes then shot Mr Riccardi a second time, to the chest, just above the heart. Mr Riccardi started to bleed heavily from the wound. After that, he remembers that he was hit with something across the chest, which he believed was the bat, but he could not say whether it was the respondent or Parkes who had hit him (count 3, intentionally causing serious injury).
The respondent and Parkes left in the stolen Saab. The respondent drove to York Street, South Melbourne, where they abandoned the car. Parkes then drove his own vehicle to Narre Warren, stopping at a pier in Mentone to throw the rifle into Port Phillip Bay. The respondent tried unsuccessfully to get a lift and eventually caught a train to a friend's house.
Some days later the respondent went to Dandenong Hospital to seek treatment for his injured thumb. He lied to hospital staff and police that he had been the victim of an armed robbery in Dandenong on 26 May 2005. After his arrest, however, he made full admissions regarding the TAB and South Melbourne incidents. The judge noted that, except for those admissions, the police had almost no independent evidence of his involvement in the TAB presentment offences.
Nature and gravity of the offences
It was accepted below that the respondent was liable as an aider and abettor and also as a matter of extended common purpose in respect of each of the offences. Further, as the judge said, it was clear that the car thefts and armed robberies were planned well in advance, particularly in relation to Mr Riccardi and that although Parkes was primarily responsible for choosing the robbery targets, the respondent agreed to participate. The respondent stole and drove the cars to facilitate the commission of the offences and with the intention and in the expectation that he would receive part of the proceeds of each robbery.
The TAB robbery was aggravated by the circumstance that it was committed in broad daylight in a place where there were likely to be members of the public. Parkes was disguised and brandishing a dangerous weapon in a threatening manner and, while the respondent's role in the robbery was confined to driver of the getaway car, his participation was integral to the commission of the offence. The judge properly inferred that the respondent participated in the decision to burn the car in order to destroy the evidence.
As the judge observed, the respondent was more actively involved in the South Melbourne armed robbery. Mr Riccardi was obviously a carefully chosen target. The respondent was responsible for following him to an isolated location and so parking the stolen Saab as to block Mr Riccardi's route of escape. The respondent and Parkes were both disguised and brandishing weapons, which make it a serious case of armed robbery, and the deliberate double shooting of an isolated, unarmed man at close range in the course of a robbery was plainly a very serious instance of intentionally causing serious injury. The judge was not persuaded that the respondent actually planned to use the violence which resulted in Mr Riccardi's injuries. But as her Honour said, and was conceded, the respondent plainly foresaw the possibility of it, and, tragically for Mr Riccardi, that possibility came to pass.
Mitigatory Circumstances
The judge took into account a range of mitigatory considerations with which she dealt at considerable length. They included that the respondent was 27 years old at the time of offending - he was born on 15 September 1977 - and that he had had a disadvantaged upbringing, had become substance dependent at an early stage and was to some extent psychologically affected as a consequence. He had developed psychiatric problems around June 2002 and he suffered from a drug-induced delusional disorder. But he had responded to medication and by July 2004 was said clearly to understand the link between his drug use and the disorder. Apart from the conviction for rape, his only other conviction was for breach of an intervention order in January 2005. In addition to the discount to which the respondent was entitled as a result of pleading guilty at the first available opportunity, the judge accepted that the early plea was a sign of genuine remorse and that the respondent had the capacity to rehabilitate himself. The judge noted too that the respondent was imprisoned in a protection unit and was likely to remain so for the short to medium term, and that as a consequence he was likely to suffer greater hardship than would ordinarily be the result of imprisonment. Her Honour said that she considered that she should order what she termed a “slightly longer than usual [non] parole period to enable [the respondent] to undertake suitable counselling and to learn to live in the community without drugs”. Hence, as it appears, the non-parole period of only six years and a half to which her Honour came.
The Consequences of the offences
The consequences of the offences have been dire. Mr Riccardi has been left with profound permanent injuries. He was initially treated in intensive care and then spent three months in recovering in Austin Hospital. He has not regained feeling or movement in his lower body. Aged in his early thirties, he is now paraplegic and confined to a wheelchair. He has lost control of a number of his bodily functions and is dependent on others for his personal hygiene. It takes him between two and three hours a day simply to shower and get dressed. His sense of security and self-respect are gravely impaired and he suffers from depression for which he takes medication and receives counselling. He has also suffered financially. He has had to spend about $15,000 adjusting his home to suit his wheelchair, plus an additional $12,000 on home security, and he estimates that he lost $150,000 on the sale of his fruit stall business because, due to his condition, it had to be sold on a ‘fire sale’ basis and he now lives on a pension.
After 18 years working at the TAB, Ms Baker no longer feels safe and secure there. She finds herself looking over her shoulder all the time. She finds it hard to close the TAB on her own and has had to reduce her hours and work under supervision. She now suffers from depression, nightmares and anxiety.
The other victim, Ms Carrone, now finds it hard to concentrate and has nightmares and suffers from sleeplessness. She is depressed and now scared to trust people.
The Crown’s contentions
The nub of the Crown's complaint in this case is that, because the judge did not cumulate any of the total effective sentence on the sentence previously imposed on the count of rape, and set a period of only six years and six months as the new non-parole period in respect of all sentences that the respondent is to serve or complete,[1] the respondent will be eligible for parole after only six-and-a-half years. In the Crown's submission, the nature and gravity of the offences encompassed in the TAB and South Melbourne Market presentments, and the effects upon the victims of those offences, are so serious as to mean that the penalty was manifestly inadequate.
[1]Pursuant to S 14 of the Sentencing Act 1991.
The Respondents’ contentions
The respondent contends that the lack of any cumulation does not amount to manifest inadequacy, or at least not such as would warrant this court in intervening. Counsel for the respondent submits that the court should consider the matter as if it were now sentencing the respondent for the offence of rape and the subsequent offences, and to come to the conclusion that a total effective sentence of eleven years and nine months would be well within the range. Similarly, it is submitted on behalf of the respondent that, although the new non-parole period of six years and six months is an unusually low non-parole period for a head sentence of almost twelve years, it is not so small as to be seen as manifestly inadequate. Alternatively, it is said that, even if there were manifest inadequacy, the extent to which the sentence might be increased consistently with the constraints of double jeopardy is so slight as to imply that this court should refuse to intervene in the exercise of discretion. Additionally, it is contended on behalf of the respondent, the Crown effectively acquiesced in the course which the sentencing judge adopted of ordering that there be no cumulation as between the sentence imposed on the count of rape and the sentences imposed in respect of the TAB and South Melbourne Market Presentments, and that in the circumstances of this case that is a significant discretionary consideration further militating against the course of appellate intervention.[2] The same, it is submitted, applies to the non-parole period, which in effect, it is argued, is simply a reflection of the lack of cumulation.
[2]R v Allpass (1993) 72 A Crim R 561, 562-3; DPP v Ecomonedes (1991) 58 A Crim R 466, 469-470.
No Acquiescence
In my view, the Crown did not acquiesce in the judge's decision that there should be no cumulation as between the sentence imposed on the count of rape and the sentences imposed on the counts the subject of the TAB and South Melbourne Market Presentments. To the contrary, when the judge specifically raised with the prosecutor the question of whether her Honour should direct pursuant to s 16 of the Sentencing Act that there be some degree of cumulation of the latter sentences upon the former, the prosecutor replied that there should be. The exchange was as follows:
“[HER HONOUR]: From the Crown’s silence [on the point], I understood the Crown not to be urging me to make any contrary direction, that is to say that the Crown agrees that it’s appropriate that the term of imprisonment that I impose be served concurrently with his rape term. That’s how I proceeded, given the Crown’s silence, but I thought I’d better check because it’s not a matter I want to them see agitated later and I wanted to be quite clear. But I’ve been back through the transcript several times, and I don’t see either a reference to s. 16 or a suggestion of cumulation between the two different sentences.
[PROSECUTOR]: Well, your Honour, if I’ve omitted to address your Honour on that, and that may well be right, I do recall we discussed Renzella’s case and so on, there was some discussion about totality and how your Honour would approach this in terms of the sentence that he as already undergoing.
[HER HONOUR]: But only totality as between the two total effective sentences that I’m imposing.
[PROSECUTOR]: But it would be wrong of me to remain silent and to say to your Honour that it ought to be totally concurrent, I understand the – just let me check what the sentences [are] he’s doing at the moment.
[HER HONOUR]: He’s doing six years for rape, with a 4-6.
[PROSECUTOR]: Depends on the way your Honour has structured the sentence to a large extent and part may well run concurrent but it depends on the length as to - - -
[HER HONOUR]: Well I’m not telling you the - - -
[PROSECUTOR]: In other words, it would be completely wrong for me to remain silent if the sentence was, to take it to the extreme, totally concurrent; of course that would be completely inappropriate, the Crown would say, because he would, as I’ve already submitted to your Honour, ought to have a significant sentence in relation to these matters. Now as to how much it runs concurrently with the other one is really a matter for your Honour. (My emphasis).
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[HER HONOUR]: Well it wasn’t a question of – the point is that the Act provides that it’s to be concurrent unless the court otherwise directs, which appears to me to impose a presumption of concurrency unless there ‘s some other thing, and that’s the basis on which I have prepared my sentence and my sentencing remarks,[3] but I wanted to be quite clear because I don’t – that it was not an omission and that is the way that the Crown was addressing, because nothing’s been said in principle about why I should make a direction under s. 16 and I would need to hear from both sides if that’s to be now argued.
[PROSECUTOR]: I don’t see that I need to make a further submission to your Honour on that. (My emphasis).
[HER HONOUR]: What, any submission, because I don’s yet have any submission on that?
[PROSECUTOR]: No, no submission.
[HER HONOUR]: All right, well I think we’re clear.
[3]I interpolate that prior to this exchange her Honour had adjourned to consider the sentence to be imposed and that she had not but was about to deliver her sentencing remarks.
It appears that the judge may have misunderstood the effect of the prosecutor's argument. The prosecutor's submission was that it would be "completely inappropriate" for there to be total concurrency. As she put it to the judge, the nature of the offences was such that there should be a significant sentence in addition to that imposed on the count of rape. But when the judge remarked that nothing had been said in principle as to why she should order some degree of cumulation, and asked if the prosecutor wished to make a submission as to that, I gather that her Honour took the prosecutor's declination of the invitation as a concession that there was nothing in principle to support a degree of cumulation. As I see it, that was not the case. The prosecutor was proceeding on the basis that she had put her submissions as to why it was totally inappropriate that there be no cumulation, and the prosecutor's further answer to the judge was intended to convey that she did not consider that she needed to make a further submission on the point. In effect she was saying that she perceived that her submission may not have found favour with the judge, but that there was nothing apart from repetition which she considered that she could usefully add to it.
Manifest inadequacy in established
The question then is whether the sentence is manifestly inadequate in any respect. In my view, it is.
These offences were serious and violent offences which were productive of grave lasting personal injuries and substantial property damage. As the Crown submitted, therefore, these offences warranted the imposition of a stern effective penalty in addition to the sentence imposed on the earlier count of rape. In my view, the absence of some cumulation, and more particularly the consequent setting of a non-parole period of only six-and-a-half years, has resulted in an effective additional minimum term which is so manifestly inadequate as to warrant the exceptional step of appellate intervention.
In reaching that conclusion I do not overlook that sentencing is to be approached on the basis that a prisoner may be required to serve every day of his or her total effective sentence, or that a total effective sentence of eleven years and nine months for both the rape and latter offences might not necessarily be thought of as manifestly inadequate in the sense which is applicable to a Crown appeal. But the fixing of a non-parole period requires discrete consideration of those facts which exist in the material before the court that bear upon the question of when the prisoner should be eligible for mitigation of confinement, and in turn rehabilitation under conditional supervision.[4] As Mason CJ and McHugh J put it in The Queen v Bugmy[5], the minimum term serves the interests of the community in the same way that the head sentence does by providing some element of community protection as well as specific and general deterrence. Like the head sentence, therefore, it must be sufficient to constitute just punishment and to maintain general deterrence and, importantly in the present context, it must not make a mockery of the denunciatory effect of the head sentence.[6] Consequently, even where a head sentence is apparently unimpeachable, the manifest inadequacy of a non-parole period may be sufficient in itself to reopen the sentencing discretion. I consider that it does so in this case.[7]
[4]R v Mulvale Unrep 20 February 197 at 11, (Winneke, P); R Bernath [1997] 2 VR 271, 278 (Callaway, JA0.
[5](1990) 169 CLR 525.
[6]R v VZ (1998) 7 VR 693, 698[18] (Callaway, JA).
[7]R v Thomas Unrep. Vic CCA 5/11/81, 5 (Lush, J); DPP v Josefski [2005] VSCA 265[48] (Callaway, JA).
Resentencing
In view of what I have said already, I see no reason to disagree with the individual sentences imposed on the TAB and South Melbourne Market counts or with the orders for cumulation of those sentences. But were it not for the fact that this is a Crown appeal and we are constrained by the principle of double jeopardy, I would be disposed to order that a substantial portion of the total effective sentence be served cumulatively on the sentence imposed on the count of rape.
Given the principle of double jeopardy as it applies in Crown appeals against sentence and the exercise of discretion reposed in this court on the hearing of such an appeal, I do not consider that it is appropriate to order cumulation as between the total effective sentence and the sentence which was imposed on the count of rape. I would, however, substantially increase the non-parole period in order accurately to reflect the head sentence of eleven years and nine months and the need not to detract from the denunciatory effect of that sentence.
Bearing in mind the nature and gravity of the offending and the mitigatory considerations to which I have referred, and after allowing for the limiting effects of the principle of double jeopardy as it applies to Crown appeals against sentence, I would re-sentence the respondent as follows:
On Presentment C0504644.3 (the TAB Presentment);
On Count 1 - Theft - to a term of imprisonment of 12 months;
On Count 2 - Armed Robbery - to a term of imprisonment of four years;
On Count 3 - Arson - to a term of imprisonment of 12 months.
I would order that three months of the sentence imposed on count 1 and three months of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 2, thereby resulting in a total sentence for the counts the subject of the presentment of four years and six months' imprisonment.
On Presentment C0504644.4 (the South Melbourne Market Presentment):
On Count 1 – Theft – to a term of imprisonment of 12 months;
On Count 3 – Causing serious - to a term of imprisonment of six years;
Injury intentionally
On Count 4 - Armed Robbery - to a term of imprisonment of five years;
On Count 5 - Armed Robbery - to a term of imprisonment of two years.
I would order that three months of the sentence imposed on count 1, two years of the sentence imposed on count 4 and six months of the sentence imposed on count 5 be served cumulatively on each other and on the sentence imposed on count 3, thereby resulting in a total sentence for the counts the subject of the presentment of eight years and nine months.
I would further order that three years of the total sentence imposed on the counts the subject of the TAB presentment be served cumulatively on the
total sentence imposed on the counts the subject of the South Melbourne Market presentment, thereby making for a total effective sentence in respect of both presentments of eleven years and nine months' imprisonment.
Pursuant to s 14 of the Sentencing Act, I would set a new non-parole period in respect of all sentences the respondent is to serve or complete of eight years and six months commencing on 1 February 2007.
ASHLEY JA:
I agree with the learned presiding judge that, approached free of misunderstanding between the prosecutor and the learned sentencing judge, her Honour should have cumulated a substantial part of the sentence passed in respect of the TAB and South Melbourne Market offences on the sentence earlier imposed for the offence of rape, that yielding an overall total effective sentence in excess of eleven years and nine months; and that is so notwithstanding proper consideration of the totality principle. But, having regard to the fact that this is a Crown appeal, I am not persuaded that the head sentence which in substance her Honour imposed for all the offences should be the subject of intervention of this Court. That is so although, in my opinion, the new single non-parole period fixed by the learned sentencing judge was so low as to be manifestly inadequate, and although that would entitle the Court to re sentence the respondent generally. In the event, I agree that the respondent should be re-sentenced only in that a new single non-parole period should be fixed. I agree in the new non-parole period proposed by the learned presiding judge. I do so for the reasons which his Honour has given.
DODDS-STREETON JA:
I agree with the disposition and the reasons stated by Nettle JA.
NETTLE JA:
The orders of the Court will be as follows:
1. The appeal is allowed.
2.The sentence passed below is quashed. In lieu thereof the respondent is re-sentenced as follows:
On the TAB presentment -
on count 1:12 months' imprisonment;
on count 2:4 years' imprisonment;
on count 3:12 months' imprisonment.
Three months of the sentence imposed on count 1 and three months of the sentence imposed on count 3 shall be served cumulatively on each other and on the sentence imposed on count 2, thereby resulting in a total sentence for the counts the subject of the presentment of four years and six months' imprisonment.
On the South Melbourne Market presentment -
on count 1: 12 months' imprisonment;
on count 3: six years' imprisonment;
on count 4: five years' imprisonment;
on count 5: two years' imprisonment.
Three months of the sentence imposed on count 1, two years of the sentence imposed on count 4 and six months of the sentence imposed on count 5 are to be served cumulatively on each other and on the sentence imposed on count 3, thereby resulting in a total sentence for the counts the subject of the presentment of eight years and nine months.
It is further ordered that three years of the total sentence imposed on the counts the subject of the TAB presentment be served cumulatively on the total sentence imposed on the counts the subject of the South Melbourne Market presentment, thereby making for a total effective sentence in respect of both presentments of eleven years and nine months' imprisonment.3.A new single non-parole period of eight years and six months is set in respect of all sentences the respondent is to serve or complete commencing on 1 February, 2007.
4.It is declared that the period of imprisonment already served under the sentence is 651 days and it is directed that the fact of the declaration and its details be entered in the records of the Court.
5.The Court grants to the appellant an indemnity Certificate pursuant to S 14 of the Appeals Costs Act 1998.
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