Dosen v The Queen

[2012] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0128

MARK ANTHONY DOSEN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF JUDGMENT	14 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 307
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Dosen (Unreported, County Court of Victoria, Judge O’Neill, 9 May 2012)

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CRIMINAL LAW – Appeal – Sentence – Arson, aggravated burglary, theft, criminal damage, resisting arrest – Total effective sentence 4 years and 6 months, non‑parole period 3 years – Whether judge intended to fix ‘shorter than usual’ non‑parole period – Whether sentence gave effect to judge’s intention – Whether non‑parole period reasonably open – Whether sentence of 6m (3m cumulated) for criminal damage manifestly excessive – Whether sufficient discount for voluntary disclosure of aggravated burglary – Reckless intoxication – Foreknowledge of effect of alcohol and drugs – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C J Pearson	Cameron Marshall & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Introduction

1. The applicant pleaded guilty to a series of charges arising out of two separate episodes of offending.  The circumstances of the offending were set out in the summary of prosecution opening, which was adopted by the trial judge.[1]  Briefly they were as follows:

   [1]DPP v Dosen (Unreported, County Court of Victoria, Judge O’Neill, 9 May 2012) [2], (‘Reasons’).

·On 17 August 2011, the applicant burnt down the property he owned jointly with his ex-partner.  He had made a number of previous attempts.  He was arrested shortly afterwards and made full disclosures to the police.  (Charge 1 — arson.)

·The applicant was bailed, and failed to answer bail on 24 August 2012.  (Charge 2 — failure to answer bail.)

·On 1 November 2012, while still on bail, the applicant and a co‑offender went to the house of Mr H and demanded drugs and money, using an imitation hand gun.  The applicant forced his way into the house, where he stole money, personal papers and cannabis.  (Charges 1 and 2 on second indictment — aggravated burglary and theft.)

·Later on the same night, the applicant went to the home of Mr M, entered the house and stole money and personal belongings.  (Charge 3 on second indictment — theft.)

·Early in the morning of 2 November 2012 (continuing from the night before), the applicant went to a McDonald’s restaurant.  He became angry and abusive when his order was not made quickly.  He kicked a bin.  As he was leaving he kicked a glass door, causing the lower panel to smash.  The cost to replace the glass was $391.  (Charge 4 on second indictment — criminal damage.)

·The applicant returned to the restaurant about an hour later and had a verbal altercation with staff.  Police arrived shortly afterwards.  When the applicant was abusive towards police, they sprayed OC spray at him.  Five police were required to restrain the applicant.  (Charge 7 on second indictment — resisting arrest.)

1. The applicant was sentenced as set out below:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Arson	15 y	3 y	Base
3	Failure to answer bail	12 m	3 m	–
1 (second indictment)	Aggravated burglary	25 y	2 y 6 m	15 m
2 (second indictment)	Theft	10 y	6 m	–
3 (second indictment)	Theft	10 y	3 m	–
4 (second indictment)	Criminal damage	10 y	6 m	3 m
7 (second indictment)	Resisting police	6 m	3 m	–
Total Effective Sentence:		4 y 6 m
Non-Parole Period:		3 y
6AAA		5 y 6 m with a NPP of 4 y 2 m

1. The applicant now seeks leave to appeal against the sentence.  For reasons which follow, we would grant leave to appeal but dismiss the appeal.

Ground 1:   non‑parole period

1. Ground 1 is in these terms:

That in the proper exercise of the sentencing discretion, the Learned Sentencing Judge should have allowed for a shorter non‑parole period than that in fact allowed for in the sentences imposed.

1. On the plea, defence counsel submitted that:

It would be open for the court to impose a term of imprisonment with a period of parole that would be a greater percentage of the head sentence … than would normally be the case.  In other words, 50 per cent or thereabouts to be served in custody and a long period of time on parole. 

In support of this submission, counsel pointed out that the applicant had pleaded guilty at the first available opportunity.  Counsel said:

He has sought to save the court system the expense of putting him on trial for these matters.  He says by way of instructions that he’s entirely sorry for the things that he has done.  He is remorseful, he made full admissions to the police, he pleaded guilty at the first available opportunity.  He wants to serve the time that he has to serve, get himself on parole so that he’s paroled and gets back to work and starts making a contribution for the future.  He’s only 34 years of age at the end of the day so there’s plenty of years of productive employment ahead of him if he chooses to do that.  He has the support of his mother and his brother.

1. Reliance was also placed on the fact that the applicant had been entirely ‘out of trouble’ for more than a decade, had been both gainfully and productively employed and had been in a long‑term, stable relationship.  It was submitted that, as the offending had occurred at a time of personal crisis for the applicant and had involved the use of illicit drugs and a concomitant deterioration in his psychiatric health, a sentence should be imposed which would enhance his prospects of rehabilitation.

1. Having determined the total effective sentence of four years and six months’ imprisonment, the judge said:

Your counsel has urged [a] longer than normal period on parole, which will assist in your rehabilitation.  I direct that you serve a minimum period of three years’ imprisonment before becoming eligible for parole.[2]

The submission in this Court was that the judge had implicitly accepted the submission that a ‘shorter than usual’ non‑parole period should be set, but had failed to give effect to that intention, given that the non‑parole period represented 67 per cent of the head sentence.

[2]Ibid [30].

1. In our view, this ground must be rejected.  The difficulties created by the notion of a ‘shorter than usual’ non‑parole period have been explored in a series of recent decisions in this Court.[3]  It has consistently been held that, subject to one exception, the question for consideration when a ground of this kind is raised is whether it was reasonably open to the sentencing judge, in the circumstances of the case, to fix the non‑parole period that he did.[4]  The exception is where the Court is persuaded that the non‑parole period manifestly failed to give effect to the judge’s stated intention, in which case sentencing error is established.

   [3]See, eg, Kumova v The Queen [2012] VSCA 212, [9]–[19], [30]–[34] (‘Kumova’);  Kneifati v The Queen [2012] VSCA 124, [27];  Wallace v The Queen [2012] VSCA 114, [16].

   [4]See Wallace v The Queen [2012] VSCA 114, [2].

1. In the present case, there is nothing to suggest that his Honour failed to give effect to his intention, assuming in the applicant’s favour that he intended to provide for a longer period on parole than he might otherwise have done.  In our view — and as the decision in Kumova emphasises — a longer non‑parole period than three years would have been quite unexceptionable.  Furthermore, the serious nature of these offences, the fact that the second episode of offending occurred while the applicant was on bail, and his prior criminal record were such that it was well within his Honour’s discretion to fix such a term.  As the Crown pointed out, a period of 18 months under parole supervision is itself a considerable period of time.

1. It follows, in our view, that it was reasonably open to his Honour to fix a non‑parole period of three years.

Ground 2:  excessive sentence for criminal damage

1. As noted earlier, the applicant was sentenced to six months’ imprisonment on the charge of criminal damage, three months of which was cumulated on the base sentence.  Ground 2 complains that both the sentence and the direction for cumulation were ‘not in keeping with current sentencing practices’ and, hence, were manifestly excessive.

1. As mentioned earlier, the charge of criminal damage arose from the applicant’s conduct at a McDonald’s restaurant in the early hours of the morning.  The applicant was heavily intoxicated at the time.  Angry with what he regarded as unsatisfactory service, he kicked the restaurant door as he left, smashing the lower glass panel.

1. According to the submission for the applicant, a charge of criminal damage arising from such circumstances

is the type of offending which is routinely determined at Magistrates’ Court jurisdictional level.  It is the type of offending which — except perhaps where a given offender has the most overwhelming of criminal records —invariably does not result in the sentence of imprisonment to be immediately served. 

1. In a supplementary written submission, counsel for the applicant cited 16 decisions of this Court in the period 1999–2012, in which the sentences imposed for criminal damage — in most cases not being the principal charge — ranged from a $1,000 fine[5] to 12 months’ imprisonment.[6]  In the latter case, only three months of the sentence was ordered to be served cumulatively.  Other decisions disclosed sentences of imprisonment for this offence of 12 months (three months cumulative),[7]  nine months (concurrent),[8] eight months (two months cumulative),[9] six months (concurrent),[10] four months (one month cumulative),[11] three months (cumulative)[12] and three months (concurrent).[13]

   [5]DPP v Oversby [2004] VSCA 208.

   [6]R v Foster [2007] VSCA 85.

   [7]DPP v Mourkakos [2007] VSCA 312.

   [8]R v Singleton [1999] VSCA 139.

   [9]Saltalamacchia v The Queen [2010] VSCA 83.

   [10]R v McCartney [2006] VSCA 35.

   [11]R v Henderson‑Drife [2007] VSCA 211.

   [12]R v Crowley [2004] VSCA 39.

   [13]R v Douglas [2006] VSCA 160; R v Albanus [2004] VSCA 236.

1. These bare figures are of little assistance in the absence of full information about the circumstances of the offending and of the offender.  The applicant does not identify any comparable case(s) that would suggest that the sentence here imposed was outside the range.[14]  What the figures do demonstrate, however, is that a sentence of six months, with three months cumulation, is not anomalous or aberrant.  Given that the maximum fixed by Parliament is 10 years’ imprisonment, it would be surprising if this were so. 

   [14]Hudson v The Queen (2010) 30 VR 610, 617 [28]–[29].

1. We have already referred to the circumstances which justified his Honour in taking a more serious view of this offence than if it had been committed by a youthful first offender.  The applicant was on bail at the time and he had significant prior convictions, including one for criminal damage.  This was, moreover, a violent expression of anger, in a public place, which inevitably caused distress to staff and customers of the restaurant.  That makes the offence materially different, in our view, from the breaking of a window in some deserted back lane.[15]

   [15]See Halden v The Queen (1983) 9 A Crim R 30, 36.

1. There is a further aggravating feature, on which the Crown relied before the sentencing judge but in respect of which no finding was made.  It concerns the applicant’s ‘reckless intoxication’.

Reckless intoxication

1. Intoxication — whether by alcohol or drugs — can be a circumstance of aggravation where it is shown that the offender had foreknowledge that, if he became intoxicated, he was likely to behave as he did on the relevant occasion.[16]  In the present case, the prosecutor advanced just such an argument on the plea.  Counsel relied on the fact that the applicant’s prior offending had occurred when he was abusing alcohol and illicit drugs including methylamphetamine.  That prior offending included burglary, theft, criminal damage, unlawful assault, threats to kill and recklessly causing serious injury. 

   [16]R v Martin (2007) 20 VR 14, [20]–[30]; Edwards v The Queen [2011] VSCA 87, [21]–[23].

1. The Crown’s submission on the plea was that the applicant therefore knew that, if he used alcohol or drugs to excess, he was likely to engage in impulsive, reckless, anger‑related criminal conduct.  Defence counsel countered that, in the circumstances of the case, the substance abuse should not be regarded as an aggravating feature.

1. The sentencing judge made no finding on this question.  His Honour evidently concluded that it was not necessary to do so for the purposes of imposing an appropriate sentence on the applicant.  We take the same view in relation to the appeal, although we consider that it would have been open to his Honour to conclude that the applicant’s substance abuse was an aggravating feature. 

1. The applicant well knew, from the serious consequences which had followed from his misuse of drugs and alcohol in the earlier period, that the same was likely to occur again.  Accepting that he was in a state of considerable personal distress when this offending occurred, we nevertheless consider that his foreknowledge of the effect that excessive drugs and alcohol would have on him made the offending — which occurred while he was under the influence of alcohol and drugs — more serious than it would otherwise have been.  The applicant should regard himself as fortunate that no such adverse finding was made.

Additional ground:   voluntary disclosure of aggravated burglary

1. In the course of argument on this application, counsel for the applicant sought to develop an argument that the sentence imposed did not reflect any, or any sufficient, discount for the fact that the applicant had disclosed to police, before any complaint had been made by the victim, the conduct which led to the aggravated burglary charge.  Pursuant to leave granted, counsel filed a supplementary submission setting out a proposed additional ground on which leave to appeal was sought, as follows:

That the Learned Sentencing Judge erred in not treating as a mitigating circumstance the fact that the Applicant had voluntarily disclosed to Police the fact that he had committed the Aggravated Burglary offence, the subject of Charge 2 on the Indictment filed.

1. The circumstances were as follows.  When the applicant was arrested and interviewed by police following the incident at the McDonald’s restaurant, he had in his possession the credit card belonging to the victim of the aggravated burglary.  He also had credit cards stolen from another person, being the subject of charge 3.  When asked about the cards in the course of the interview, the applicant disclosed the circumstances in which he had come into possession of them.  He proceeded to disclose that the person from whom the first card had been taken was a drug dealer and that he had gone to that person’s house and had committed a home invasion.

1. Soon after that disclosure, police spoke with the owner of that credit card, who confirmed that he had been the victim of an aggravated burglary.  He signed a statement later that day, at the end of which he stated:

I didn’t contact the police straight away because I was worried that I would be in trouble for having the [drugs].  I was just thinking about what I should do when police knocked on my door this morning to speak with me.

Upon resumption of the record of interview with the applicant later that day, he told police that he had used the stolen credit card to pay for the taxi to take him to the McDonald’s restaurant.  He then made further admissions about this incident, including that he had used a plastic gun wrapped in newspaper.

1. Defence counsel (who also appeared on the application for leave to appeal) drew these circumstances to the attention of the sentencing judge on the plea, arguing that was a ‘pretty unusual’ case.  Counsel submitted:

it’s as if one of the horsemen of the apocalypse arrives at [the victim’s] door and the whole thing happens very quickly.  He is left in a bewildered state, and it’s not he who reports it to the police, it’s the accused man who tells the police about it.

1. In his sentencing reasons, the judge said:

In relation to the charge of aggravated burglary, you made frank admissions to the police about your role, even before the matter was reported by the victim.  It seems likely, absent your admissions, the matter may not have come to the notice of the authorities.[17]

In the supplementary submission, counsel for the applicant argued:

[T]he fact that the applicant disclosed to police that he had committed the Aggravated Burglary could and should have been treated as a significant circumstance of mitigation. 

In the circumstances of this case, not only did the applicant plead guilty at the first available opportunity.  He had disclosed otherwise unknown guilt of an offence which merited a significant added element of leniency, particularly in circumstances where there was not a high degree of likelihood that his guilt would otherwise have been discovered by the police.

Reliance was placed on R v Ellis,[18] and DPP v C P D.[19] 

[17]Reasons, [16].

[18](1986) 6 NSWLR 603, 604.

[19](2009) 22 VR 533, 540 [28]–[29].

1. The supplementary submission for the Crown acknowledged that the applicant had disclosed his involvement in the aggravated burglary before any complaint had been made.  It was contended, however, that

[e]ven absent the applicant’s admissions … it is likely the police would have made contact with [the victim] to enquire about the credit card.  This is likely to have led to a complaint being made about the aggravated burglary.  It cannot be said that it is likely that this aggravated burglary would never have come to the notice of authorities.

That being so, the Crown contends, the applicant’s disclosures

did not and do not warrant the very significant discount talked about in the authorities relied upon by the applicant.  A moderate discount was justified.  There is every indication that such a discount at least was given by the trial judge.

1. In our view, the Crown’s submission must be upheld.  The applicant certainly deserved some credit for the voluntary disclosure, as it was a positive indicator of remorse and prospects of rehabilitation.  We do not accept, however, that the aggravated burglary would otherwise have remained unknown to the authorities.  It seems inevitable that the owner of the stolen credit card would have been interviewed, and highly likely that the full circumstances would have been disclosed to the police by the victim.

1. Importantly, the sentence of two years and six months, for what was on any view a serious instance of the offence of aggravated burglary, was lenient in the circumstances.  This is especially so given, as we have previously noted, that the applicant was on bail at the time and had prior convictions for serious criminal offending.  It is clear from the sentencing judge’s reasons that he was mindful of the applicant’s voluntary disclosure and the sentence imposed appears to be consistent with that having been treated as a mitigating factor.