DPP v Dickson
[2011] VSCA 222
•10 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| Appellant |
| v |
| GEORGE ELLIOTT DICKSON |
| Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 January 2011 |
| DATE OF ORDERS | 24 January 2011 |
| DATE OF JUDGMENT | 10 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 222 |
| JUDGMENT APPEALED FROM | DPP (Vic) v Dickson (Unreported, County Court of Victoria, Judge Howard, 29 March 2010 (sentence), 16 April 2010 (recall of sentence), 14 May 2010 (further recall of sentence)) |
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CRIMINAL LAW – Appeal – Sentence – Offences committed while on parole – Parole cancelled – 3 years and 3 months of original sentence still to be served – Applicable principles – Totality – Cumulation – R v Hunter (2006) 14 VR 336; R v Piacentino (2007) 15 VR 501 reaffirmed – R v Bradley [2010] VSCA 70 explained – Sentencing Act 1991 (Vic) ss 5(2AA)(a), 14(1), 15(1), 16(3B) – Sentencing judge acted in accordance with Crown submissions – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Rapke QC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with | C Marshall & Associates |
| Mr D A Dann |
MAXWELL P:
On this appeal, the Director of Public Prosecutions has asked the Court to revisit principles laid down in earlier decisions of the Court, concerning sentencing for offences committed while the offender was on parole for other offences. (For ease of reference, I will refer to the offences in respect of which parole was granted as ‘the original offences’ and to the offences which breach the parole as ‘the later offences’.)
Those decisions govern the sentencing task in the case where the offender’s parole is cancelled on account of the later offences. In that case, the principle of totality requires the court sentencing the offender for the later offences to have regard to the ‘parole sentence’, that is, so much of the head sentence imposed for the original offences as has not been served at the date of sentencing. In the absence of exceptional circumstances, the offender will be required to serve the parole sentence cumulatively on the sentence imposed for the later offences.[1]
[1]Sentencing Act 1991 (Vic) s 16(3B); DPP v Rongonui (2007) 17 VR 571 (‘Rongonui’).
The critical point for present purposes is that the whole of the parole sentence must be taken into account in applying the totality principle. That – so this Court has held – is the effect of s 5(2AA)(a) of the Sentencing Act 1991 (Vic) (‘Act’), which prohibits the sentencing court from considering the possibility that the Parole Board might re-release the offender on parole before he/she has served the entire parole sentence.
These principles were laid down in R v Hunter,[2] a case where parole had already been cancelled by the time the offender came to be sentenced for the later offences. They were subsequently affirmed by a five-member bench in R v Piacentino.[3] The bench had been thus constituted because the then Director of Public Prosecutions had foreshadowed a submission that Hunter was wrongly decided and should be overruled. The Director acknowledged at the time that his submissions were contrary to the position previously taken by him and by prosecutors representing his office.[4] The submission made then resembled the submission made in the present appeal.[5]
[2](2006) 14 VR 336 (’Hunter’).
[3](2007) 15 VR 501 (‘Piacentino’).
[4]Ibid [10].
[5]Ibid [86].
The same principles have been held to apply where the parole cancellation occurs after the offender has been sentenced for the later offences. In those circumstances, the sentencing judge does not know, and must not speculate, whether the offender’s parole will be cancelled.[6] But the subsequent cancellation of parole is treated as fresh evidence which can be admitted on appeal.[7] This Court is then able to consider whether, in view of the parole sentence, the totality principle requires any moderation of the sentence imposed for the later offences.
[6]Ibid [71]–[73].
[7]R v Alashkar (2007) 17 VR 65, [12].
These principles have been consistently applied in subsequent decisions of this Court, with the express or implied concurrence of the Crown.[8] They were endorsed by the Sentencing Advisory Council (‘SAC’) in its November 2009 report entitled ‘Sentencing, Parole Cancellation and Confiscation Orders’.[9]
[8]Rongonui (2007) 17 VR 571; DPP v Kennedy (2008) 21 VR 431, [25]–[26]; R v Czerniawsky [2009] VSCA 2, [14]–[15]; R v Mangelen (2009) 23 VR 692, 698 [31], 699 [35]; R v Bradley [2010] VSCA 70, [21]–[22] (‘Bradley’); Morgan v The Queen [2010] VSCA 248, [8]–[9]; DPP v Alsop [2010] VSCA 325, [18], [33]–[34].
[9]Sentencing Advisory Council, Sentencing, Parole Cancellation and Confiscation Orders, Report (2009) (‘SAC Report’).
As will appear, the Director submitted that this line of authority was wrong and should be overruled. In contrast to the position in Piacentino, however, the Director had given no notice of his intention to seek such an overruling, nor was it apparent from his written submissions. As a result, the appeal came on before the conventional bench of three.
However constituted, a bench of this Court would follow previous decisions of the Court unless persuaded that they were clearly wrong.[10] Given the consistency of the line of authority, and the fact that the leading case was a unanimous decision of a five-member bench, it was always highly probable that we would do so. Given the additional circumstance that the SAC, an independent, specialist advisory body, had affirmed the line of authority as consistent with principle, that probability must have been regarded as a near-certainty. Particularly was this so given that the argument advanced by the Director on this appeal was, in substance, the same as the submission from the Office of Public Prosecutions (‘OPP’) which the SAC had considered, and rejected, in its 2009 report.
[10]Nguyen v Nguyen (1990) 169 CLR 245, 269; Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224, 228–9; R v BDX (2009) 24 VR 288, 309–314 [125]–[152].
In my view, the decisions in Hunter and Piacentino were correct, for the reasons given at the time, and should continue to be applied. Even if I had reached a different conclusion, I would not have contemplated overruling those decisions. They have stood unchallenged, and have been consistently applied, for a number of years. It has always been open to the Director to seek special leave to appeal to the High Court in an appropriate case, but that step has never been taken.
The present appeal, however, concerns a misapplication of the Hunter/Piacentino principles to the fixing of the non-parole period for the later offences, which in turn resulted from a misapplication of the provisions of s 14(1) of the Act. Before I explain how this arose, it is important to summarise the applicable principles.
Sentencing after parole cancellation
Sentencing an offender whose parole has been cancelled is one of the most difficult tasks which can confront a sentencing judge. The judge is obliged to apply simultaneously a number of different rules, some derived from statute and others from common law, as follows:
(a) The prohibition on speculation
Parole having been cancelled on account of the later offences, the court in sentencing the offender for those offences must assume – when applying the principle of totality – that the offender will be required to serve the full parole sentence. This is because s 5(2AA)(a) imposes an absolute prohibition on the court speculating on action which the Parole Board might in the future take. Specifically, the court must ignore altogether the possibility that the Parole Board will decide to re-release the offender on parole before the full parole sentence has been served.
(b) The presumption of cumulation (s 16(3B))
By force of statute, the sentence imposed for the later offences must be served cumulatively on the parole sentence, unless otherwise directed by the court because of the existence of exceptional circumstances.
(c) The principle of totality
In fixing the sentence for the later offences, the court must take into account that the parole sentence will be served cumulatively. Viewed as a whole, the aggregate of sentences imposed by reason of cumulation cannot be greater than is warranted by the totality of the criminality represented by both the later offences and the original offences.[11]
[11]Hunter (2006) 14 VR 336, 341 [30].
(d) Parole breach as an aggravating factor
On ordinary principles, the fact that the later offences were committed while the offender was on parole aggravates the seriousness of those offences.[12]
[12]DPP v BGJ (2007) 171 A Crim R 74, 78 [14].
As this Court has commented previously,[13] the interplay between these rules makes the sentencing task inordinately complex. As a result, the risk of appellable error is simply too great. For these reasons, the case for legislative simplification remains strong, in my view, notwithstanding the conclusions of the SAC review to which I have referred.
[13]R v Czerniawsky [2009] VSCA 2, [16].
The prohibition on speculation
The first of these – the prohibition on speculation – was the focus of attention on this appeal. As mentioned earlier, the prohibition is found in s 5(2AA)(a) of the Act, which requires the sentencing court to disregard
any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.
In Hunter, the offender’s parole had been cancelled and, at the time of sentence, he was serving the parole sentence. The Court said:
Nothing in s 5(2AA) of the Sentencing Act authorised, let alone required, the trial judge to disregard the fact that Hunter was then serving the unexpired portion of his original sentence. On the contrary, the prohibition on speculation meant that the judge was bound to assume that the full term of the original sentence would be served. Any possibility that Hunter might again be released on parole had to be disregarded.[14]
[14]Hunter (2006) 14 VR 336, 341 [29].
In Piacentino[15] the Director argued that the result in Hunter was itself contrary to s 5(2AA)(a). It was said, first, that to take into account the parole sentence was, impermissibly, to take into account past executive action, that is, the cancellation decision. Alternatively, it was said, to take the parole sentence into account did implicitly involve ‘having regard to the possibility or likelihood that the length of time spent in prison for the parole breach might be affected by executive action’.[16]
[15](2007) 15 VR 501.
[16]Ibid 518–19 [86].
These arguments were rejected. Eames JA (with whom the other members of the Court agreed) said:
In my opinion, s 5(2AA) speaks prospectively as to executive action and should be so confined. The sentencing judge in taking the period being served as the whole of the balance of the sentence would not be speculating on the possibility of that sentence being affected by future executive action. The judge would have no regard at all to the possibility that that the period of imprisonment for the parole breach would be affected by future executive action.[17]
[17]Ibid 519 [87].
On the present appeal, the Director submitted that s 5(2AA)(a) had been misinterpreted. The Director contended that the prohibition against speculation was confined to the possibility of executive action in relation to the sentence being imposed for the later offences, and had no application to the parole sentence. The submission relied on the following passage from the judgment of Eames JA in Piacentino:
There is also nothing explicit in the language of s 5(2AA), either, which targets the totality principle; the focus, rather, is on the separation of the roles of the Parole Board and of the sentencing judges. As the explanatory notes made clear when it was introduced, the sub-section was intended to be declaratory of the common law, in requiring the sentencing judge to sentence on the basis that the whole of the head sentence might be served. The line of cases making that point had been affirmed by the Full Court in 1984 in R v Yates, the headnote in that case adopting language which mirrors that used in s 5(2AA): holding that a sentencing judge is not entitled to take into account ‘the possibility or likelihood’ that the time in custody will prove to be less than the head sentence which the judge imposes. That is not our situation.[18]
[18]Ibid 515 [64].
This argument must be rejected. It fails to recognise that, because of s 16(3B), the parole sentence is part of the head sentence. It must be served cumulatively on the sentence imposed for the later offences. That is the very basis on which it has been held that the principle of totality must be considered. The decision in Hunter accorded with the unambiguous intention of s 5(2AA)(a), in holding that a sentencing court must not speculate that action by the Parole Board might result in something less than the whole of the parole sentence – considered as part of the head sentence – being required to be served.
In his principal submissions, however, the Director made a more fundamental attack on the Hunter/Piacentino line of authority. He argued that the prohibition on speculation was intended to operate in precisely the opposite way to that which the Court had declared. The Parole Board has an unfettered discretion as to whether or not to re-release an offender on parole before the full parole sentence has been served.[19] The intent of s 5(2AA)(a), the Director contended, was that the sentencing court must make no assumption of any kind as to what the Parole Board might do following the cancellation of parole. To assume that the full parole sentence would be served was just as much a breach of the prohibition against speculation as it would be to assume that none of the parole sentence would be served. The alternative submission was that it was simply impossible to predict what the Parole Board might do. As a result, no meaningful assessment could be made of the risk that the offender would be required to serve any particular portion, or the whole, of the parole sentence.
[19]Corrections Act 1986 (Vic) s 78.
In summary, therefore, the Director argued that it was either impermissible or impracticable for the sentencing court to take the parole sentence into account and it should therefore be disregarded altogether. The OPP had made a submission along these lines to the SAC in its parole revocation review. The submission was summarised in the SAC Report, as follows:
Service of all or part of the parole sentence
4.10The OPP submitted that totality should only apply if changes were made to ensure that the offender actually serves the entire parole sentence by virtue of the cancellation of parole.
4.11In the absence of exceptional circumstances, the cumulation (by operation of section 16(3B)) of the parole sentence and the head sentence for the new offences produces a number of effects. The non-parole period is calculated only with reference to the head sentence for the new offences, and the parole sentence is then added to the end of that head sentence. Due to this, the offender may be re-released on parole after he or she has served the non-parole period of the new sentence. In these circumstances, if the offender is re-released on parole, he or she may serve a period of the parole sentence under parole conditions in the community rather than in custody.
4.12Given these circumstances, the OPP did not support any of the options in relation to parole, as they considered it a ‘fallacy’ to moderate a sentence by taking into account a parole sentence which may or may not be served in prison in its entirety:
‘The Options assume that when an offender breaches his or her parole, he or she will be required to serve the entire parole sentence, along with the sentence imposed for the offence which breaches the parole order. In our experience, an offender is rarely required to serve the parole sentence in its entirety upon breaching the parole order. However, the sentencing judge for the breaching offence is currently required to moderate the sentence as a result of totality considerations. As a result, the offender effectively receives a discounted sentence due to the operation of totality in circumstances where he or she has breached parole and the perceived total effective sentence is rarely implemented in practice.’
4.13For this reason, the OPP’s preferred option was a reversion to the Orphanides approach. In their view, this removed the ‘fallacy’, argued to be inherent in the current system, where sentences are moderated by taking into account a parole sentence which may or may not be served in its entirety. In the OPP’s submission:
‘It is the Crown’s position that a return to the approach enunciated in R v Orphanides (2002) 130 A Crim R is the preferred option. This would allow some measure of totality to be applied as the court could again sentence the offender in the context of the risk of his or her parole being revoked. It would permit the sentencing judge to have regard to the possibility of parole revocation.’[20]
[20]SAC Report, above n 9, [4.10]–[4.13].
It should be explained that R v Orphanides[21] was a case where parole had not been cancelled at the date of sentencing for the later offences. The Court of Appeal there held that, although the sentencing court must not ‘speculate that the parole board will cancel the parole and require the unexpired portion of the sentence to be served in prison’, the Court must nevertheless sentence ‘in the light of what the possibilities are’. Thus, the sentencing court would determine the appropriate sentence
knowing that if the Parole Board cancels the parole for breach, it may also require the unexpired portion of the earlier sentence, or perhaps some portion of it, to be served in prison; and further that, if that occurs, the new sentence must be served additionally unless it otherwise orders by reason of exceptional circumstances.[22]
Orphanides was overruled in Piacentino, where the court held that the prohibition on speculation was absolute and that no account could be taken of ‘the possibilities’.
[21](2002) 130 A Crim R 403.
[22]Ibid 413–14 [34].
The Council rejected the OPP’s submission, saying:
4.21 It is the Council’s view that the principle encapsulated in section 5(2AA) of the Sentencing Act 1991 (Vic) should apply equally to all offenders who are sentenced for offending on parole. The prohibition on speculation in sec 5(2AA) of the Sentencing Act 1991 (Vic) requires the judge:
‘to assume that the full term of the [parole] sentence would be served. Any possibility that [the offender] might again be released on parole [is] to be disregarded’.
4.22The liberty of an offender should not be determined by factors which are unpredictable and out of his or her control. At the time of sentence, a sentencing judge cannot predict or control what factors the [Adult Parole Board] will take into account in deciding whether to release an offender on parole. Rather, in fixing sentence, judges are to proceed on the basis that a sentence (or in these circumstances a parole sentence) will be served, because it is not proper to fix a sentence by reference only to a forecast about the effect of executive policy on the service of the term imposed. This includes whether the offender will be required to serve all or part of the parole sentence upon cancellation of the parole. Also included is the possibility that the APB may cancel parole but later revoke that cancellation and reinstate parole (subject to the sentence imposed by the judge for the new offences).[23]
[23]SAC Report, above n 9, [4.21]–[4.22].
The application of the totality principle
The requirement that the parole sentence be taken into account in considering the principle of totality may, but need not, lead to a moderation in the sentence to be imposed for the later offences. Likewise, the admission of the fact of parole cancellation as fresh evidence on appeal may – but need not – lead to the original sentence being varied by the appeal court.[24]
[24]R v Alashkar (2007) 17 VR 65, [39]–[40] (‘Alashkar’); R v Riem [2007] VSCA 283, [36]; R v Scholes [2007] VSCA 303, [84]–[85], R v Mourad [2008] VSCA 4, [14]–[16]; R v Czerniawsky [2009] VSCA 2, [24]; R v Mangelen (2009) 23 VR 692, [31]–[32]; SAC Report, [4.38].
These propositions have been worked out in a series of cases, beginning with Hunter[25] where the Court said:
As already discussed, there must in the absence of exceptional circumstances be cumulation in respect of offences committed whilst on parole. At the same time, viewed as a whole the aggregate of sentences imposed by reason of cumulation cannot be greater than any sentence required to fulfil the totality principle and all the appropriate aims of sentencing in the case. There must be relativity between the totality of the criminality and the totality of sentences, not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.
Where parole is cancelled, the principle of totality must ‘bulk large’ in the determination of the aggregate term of imprisonment imposed for the later offences. In R v Sullivan,[26] Eames JA (with whom Charles and Buchanan JJA agreed), said:
‘[T]he principle of totality ... requires that the sentencing court evaluate the overall criminality involved in all the offences and adjust the sentence downwards, where appropriate, to ensure there is an appropriate relativity between the totality of the criminality and the totality of the length of sentence imposed. It is a principle which requires the court to have regard both to the sentences about to be imposed and those which the prisoner is undergoing: see Postiglione v The Queen (1997) 189 CLR 295. Notwithstanding section 16(3B), the principle of totality also has application in circumstances where, as here, the sentence currently being served derives from a breach of parole.[27]
[25]Hunter (2006) 14 VR 336, 341–2 [30]–[31].
[26][2005] VSCA 286.
[27]Ibid [20].
In Piacentino, Eames JA said:
In Mill v The Queen the High Court adopted the explanation of the principle as articulated by D A Thomas in ‘The Principles of Sentencing’, namely, as requiring a sentencer who has passed multiple consecutive sentences ‘to review the aggregate sentence and consider whether the aggregate is “just and appropriate”’; and that ‘it is always necessary for the court to take a last look at the total just to see whether it looks wrong’. McHugh J stated in Postiglione v The Queen, that totality ‘requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged’ but it extends to ‘the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence’.[28]
[28](2007) 15 VR 501, 507 [32].
In Alashkar,[29] where parole had been cancelled after sentence, the parole sentence to be served was 2 years and 2 months. This Court said:
He is eligible to be released on parole on 25 September 2007, but we must assume that he may be required to serve every day of his full sentence. The question is whether, taking into account the determination of the parole board, a sentence of 5 years’ imprisonment with a non parole period of 3 years in all the circumstances, offends the principle of totality.
The consideration of that principle must take into account the obvious intention of s 16(3B) of the Sentencing Act that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed. In our view, taking that matter into account, together with all other relevant circumstances including the length of that sentence, the sentence imposed cannot be said to be an unjust or an inappropriate measure of the total criminality involved. The appeal should be dismissed.[30]
[29](2007) 17 VR 65.
[30](2007) 17 VR 65, 75 [39]–[40].
In R v Mangelen,[31] Redlich JA (with whom Ashley JA agreed) gave detailed consideration to the totality question:
[31](2009) 23 VR 692.
Historically the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender’s criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an ‘unjust or inappropriate measure of the total criminality involved’ the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.
The principle has also been considered applicable where the sentence currently being served derives from a breach of parole. The transposition of the principle to such circumstances is not without its difficulties. If the parole sentence has been enlivened as a direct consequence of the offences on which the offender falls to be sentenced, considerations of fairness and leniency to the prisoner, which in part inform the principle, may require a different emphasis. That may be particularly so with respect to the non-parole period.
…
While the respondent concedes that the fresh evidence constituted by the cancellation of parole should be admitted and the principle of totality applied, an evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. The court must then consider whether the sentence imposed for the subsequent offending and which breached the parole has produced an overall result out of proportion to the criminality represented by the two sets of offences. The court may intervene if the total sentence is an ‘unjust or inappropriate measure of the total criminality involved’. In such a case the new sentence which the appellant has been required to serve might be moderated so that the total of the sentences to be served does not offend the totality principle.
…
The appellant referred to authorities that have said that where parole is cancelled, the principle of totality must ‘bulk large’ in the determination of the aggregate term of imprisonment imposed for the later offences. Those cases are not authority for the proposition that the principle will be given a more beneficent application in such circumstances. There is no reason why that should be so. Nor should it be assumed that this Court must intervene or impose a different sentence simply because the parole term has been enlivened and added to the sentence which is the subject of the appeal. Such an approach wrongly assumes that the sentence that has been imposed cannot be appropriate once the offender is required to serve further time in custody. A court may conclude that the sentence remains the correct sentence or is within the range of sentences that are reasonably open where the offender is required to serve a parole sentence. That was the view reached by this Court in decisions such as R v Mourad, R v Cochrane and R v Scholes. Indeed, it may transpire that the circumstances in which this Court will feel compelled to interfere may prove to be uncommon.
Where parole has been granted and subsequently cancelled, the offender will by definition have completed the non-parole period of that sentence. If upon sentencing for the offence which caused the cancellation of the parole, the parole sentence is cumulated on the new sentence - a result mandated by the Sentencing Act 1991 unless there are exceptional circumstances - the offender will be required at least to serve the non-parole period of that sentence. If the non-parole period of that sentence is calculated only by reference to the head sentence of the subsequent offence, and not by looking at the total period the offender may be likely to spend in custody, the practical effect will often be a longer than usual parole period. This consequence may be the intended effect of the legislative policy behind s 16(3B) of the Sentencing Act 1991.
…
Totality is not a principle to be applied without regard to the components of the instinctive synthesis. The parole sentence may impact on the sentence to be imposed but the consideration oftotality does not override nor should it engulf other critical sentencing considerations. In this as in most cases the need to impose a punishment that reflected the objective gravity of the offence, general and specific deterrence, protection of the community and prospects for rehabilitation were a critical part of the sentencing synthesis.[32]
The decision in R v Bradley[33]
[32]Ibid [28]–[29], [31]–[33], [36] (footnotes omitted; emphasis added).
[33][2010] VSCA 70.
Although the parole sentence is to be served cumulatively on the head sentence for the later offences, the assumption which the sentencing court must make – that the entirety of the parole sentence will have to be served – might be thought to give it something of the character of a non-parole period. This may explain the development of the erroneous view that the sentencing exercise is governed by s 14(1) of the Act, which provides:
(1)Subject to subsection (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that person, whether before or at the same time as that term.
What occurred in Bradley illustrates this error. In that case, the offender had been released on parole after serving a non-parole period of 16 years for murder. Whilst on parole he committed further offences, as a result of which his parole was almost immediately cancelled. Between the date of cancellation and the date of sentence – a period of almost 20 months – he was serving the parole sentence, that is, the balance of the sentence imposed on him for murder.
The sentencing judge noted, correctly, that the sentence she was to impose for the later offences would be served cumulatively upon the parole sentence, as there were no exceptional circumstances. Her Honour proceeded, however, in the erroneous belief that she was required by s 14(1) of the Act to impose a new overall minimum term which included the balance of the parole sentence. (In fact, s 14(1) could have had no application because the original non-parole period had expired.) On that basis, her Honour said:
Pursuant to s 16(3B) all such sentences are to be served cumulatively upon the breach of the parole that you are currently serving, unless I find that there are exceptional circumstances for directing otherwise. I find no such exceptional circumstances, but I have accordingly moderated the sentence that I would have otherwise imposed upon you, to ensure that the sentence would not be crushing.
I am required to impose a new overall minimum, which includes the breach of parole that you are currently serving. I direct that you are to serve a minimum of seven years from today.[34]
[34]R v Bradley [2007] VSC 418, [42]–[43] (emphasis added).
On the appeal, senior counsel for the Crown acknowledged that her Honour’s evident intention was that the offender be eligible for parole as from a date seven years from the date of sentence, her evident assumption being that he would by then have served the balance of the parole sentence. Contrary to her Honour’s assumption and expectation, however, the parole sentence would remain to be served once the non-parole period she fixed had expired. Under s 15(1) of the Act, the non-parole period must be served first, followed by the balance of the head sentence and the parole sentence.[35]
[35]DPP v Kennedy (2008) 21 VR 431, 437 [25]–[26].
On the appeal, I said (with the concurrence of Bongiorno JA and Ross AJA):
As things stand, however, once the non-parole period for these offences expires, the applicant will have two years and three months of the parole sentence still to serve. The effect of [this Court] reimposing a seven year non-parole period would thus be to produce a minimum term of nine years and three months. (That is of course subject to the discretion of the Parole Board, at some point after the expiry of that non-parole period, not to require the applicant to serve the entire balance of the parole sentence. But we are not allowed to – and could not in any sensible way in any event – speculate on what is likely to happen in that regard.)
The Crown submits, and I agree, that we should proceed on the assumption that the applicant will be required to serve the full two years and three months of the parole sentence, once the non-parole period for these offences expires. Accordingly, in my opinion, we should fix a non-parole period of four years and nine months. Added to the two years and three months of the parole sentence, which we expect him to have to serve, that will produce the result which her Honour intended. It would be unfair in my view for the result in this Court to produce any less advantageous result for the applicant than that which the judge clearly intended.[36]
[36]Bradley [2010] VSCA 70, [21]–[22] (emphasis added).
As will appear, the Crown in the present appeal sought to confine the approach which it took in Bradley to the particular circumstances. In my view, it should be so confined, for reasons set out below. It is important, however, to be quite clear about how the result in that case was arrived at.
As already mentioned, the sentencing judge in Bradley had proceeded on the erroneous basis that s 14(1) of the Act applied. Her Honour treated the parole sentence (of 2 years and 3 months) as if it were the unexpired portion of the non-parole period (rather than the head sentence) fixed when the offender was sentenced for the original offence of murder. On that erroneous assumption, her Honour considered that she was required to fix ‘a new overall minimum’, which took into account both the parole sentence and the minimum term which she would otherwise have fixed for the later offences.
Hence the ‘new overall minimum’ of 7 years which her Honour fixed must be taken to have reflected her aggregation of those two separate periods, perhaps with some moderation for reasons of totality. It was therefore a reasonable assumption for the Crown, and this Court, to make on the appeal that, if it had not been for the s 14(1) error, her Honour would have fixed a non-parole period for the later offences which approximated to the period fixed by this Court on appeal, that is, 7 years less the 2 years and 3 months of the parole sentence.
Against that background I turn to the circumstances of the present case.
The present case
The respondent pleaded guilty to five counts of armed robbery and one count of attempted armed robbery. He had committed the offences whilst on parole for offending of the same kind. Before he was sentenced, his parole was cancelled. At that time the unserved balance of the head sentence for the original offences was a little over 5 years. By the time he was sentenced, 3 years and 3 months remained to be served.
Unfortunately, the sentencing judge was led into the same error as had occurred in Bradley. The prosecutor (with the concurrence of defence counsel) submitted that s 14(1) was applicable and that the judge should fix ‘a new non-parole period’ which incorporated the parole sentence. His Honour specifically asked the prosecutor how it was possible for s 14(1) to apply, since the non-parole period relating to the original offences had already been served. The prosecutor responded – and his Honour accepted – that, if the court did not fix a non-parole period which incorporated the parole sentence, the offender would have to serve the entirety of the parole sentence plus the non-parole period for the later offending. In his sentencing reasons, his Honour said:
I also need to fix a single non-parole period. Given the parole sentence you are serving is for another three years and three months, and it is for the same offences and you committed this offence whilst on parole for armed robbery, I consider that a significant portion of that sentence should be taken into account. However, I must apply the totality principle to this exercise.[37]
[37]R v Dickson (Unreported, County Court of Victoria, Judge Howard, 29 March 2010), [107].
This Court’s reasons in Bradley were published the day after his Honour had sentenced the respondent. This prompted him to take the unusual step of recalling the sentence which he had imposed. He said he had done so
because I am satisfied that I had no power to fix such a new single non-parole period, given that there was no relevant unexpired non-parole period. Rather, I should have proceeded under s 16(3B) of the Act. Counsel now agree that their earlier submissions were wrong and that this is the correct approach.[38]
[38]R v Dickson (Unreported, County Court of Victoria, Judge Howard, 16 April 2010), [3].
In the course of argument following the recall, the prosecutor informed his Honour that he had likewise come to realise that there was no power to fix a new non-parole period. The fact that the later offences had been committed whilst the offender was on parole for the original offences meant – necessarily – that the original non-parole period had already been served and hence that s 14(1) could have no application. The prosecutor told his Honour, however, that the fixing of a non-parole period for the later offences which incorporated the parole sentence was ‘a practice which I have seen a number of judges do’.
Defence counsel invited his Honour to take the same course as this Court had taken on appeal in Bradley, and reduce the non-parole period by the amount of the parole sentence which – it had to be assumed – Mr Dickson would be required to serve. The prosecutor agreed that this was the appropriate course ‘because the end result is the nine and half years with a seven minimum. The methodology to get there is different but the result is the same.’
His Honour said in his reasons:
Your counsel has submitted that it is clear from a reading of the sentence remarks … that my intent was that you should serve a minimum of seven years’ imprisonment. And that in reaching this conclusion, I took account of the application of the totality principle, such as I must now take account of the totality principle having regard to s 16(3B). In essence, the prosecution has agreed with this submission and in this approach.
In fixing that minimum sentence I had regard to the totality principle in your favour but, as I have explained to counsel, I did not consider that exercise in the context of s 16(3B) which, as I have said, provides for full cumulation of the two sentences in the absence of exceptional circumstances. So I must do that now.
The non-parole period to be imposed by me will be served first, followed by the balance of the parole sentence, which, as I have said, is approximately three years and three months. I must assume that you will serve the whole of the parole sentence once you have served the minimum sentence for these offences. In applying this assumption, the Court of Appeal in Bradley reduced the minimum to be set so as to arrive at the sentence which the judge clearly intended.
The sentencing judge in Bradley had regard to the operation of s 16(3B). I did not do that at the time of your sentence. But the prosecution submits that regardless, one ends up with a consideration of the same sentencing factors. Initially, as I indicated in discussion with counsel, I had some reservation about the conclusion but, on reflection, and having heard the unanimous submissions of both counsel, I am satisfied that this is the case. Therefore, I do not consider that I should re-sentence in a way where the result is any more adverse to you than what it was previously when I sentenced you. That means there will not be a net change in the effect of the minimum sentence that I will fix.
… Accordingly, I will [deduct] from the minimum sentence I imposed the period of three years and three months, being the parole sentence to be served.[39]
[39]Ibid [24]–[28], [31] (emphasis added).
On that basis, his Honour sentenced the respondent as set out below:
Count
Offence
Maximum
Sentence
Cumulation
1
Armed robbery
25y
5y
Base
2
Attempted armed robbery
20y
2y 6m
6m
3
Armed robbery
25y
5y
1y
4
Armed robbery
25y
5y
1y
5
Armed robbery
25y
5y
1y
6
Armed robbery
25y
5y
1y
TES:
9y 6m
NPP (on original sentence, 29 March 2008):
7y
NPP (sentence following recall, 16 April 2008):
3y 9m
6AAA (TES / NPP):
11y 6m/8y 6m
Crown application for further recall of sentence
It is quite clear, as the Director conceded on the appeal, that the sentencing judge had proceeded at all times in accordance with the submissions of the prosecutor. Following the recall of the sentence and the reduction of the non-parole period, however, the Director (represented by different counsel) applied to the judge for a further recall of the sentence. On that occasion, counsel for the Director acknowledged that the judge had quite properly regarded himself as compelled to follow the decision in Bradley, but made the formal submission that the approach in Bradley was wrong and should not be followed. (This application was purportedly made pursuant to s 360 of the Criminal Procedure Act 2009 (Vic), which permits the Court to amend an order where necessary to correct ‘any defect or error in substance or in form’. Although the question was not explored on the appeal, it seems quite clear that s 360 provides no basis for an application to a judge to recall – and vary – a sentence.)
Not surprisingly, the judge refused the Director’s application to recall the sentence. Delivering short reasons for his decision, the judge noted that it had been the prosecutor’s submission at the time of the recall of the sentence that he should proceed as this Court had done in Bradley. His Honour said:
The prosecution has today indicated that the reasoning set out in the written submission, which underpins the present submission, escaped the attention of the prosecutor on the recall of sentence. It must also have escaped the prosecutor appearing in Bradley. As I said, the prosecutor concedes that I am bound to act in accordance with Bradley. This is the submission of the respondent. The prosecutor frankly states that the position can be addressed either by the Court of Appeal, presumably with a court of five; alternatively, by legislative change. But he concedes that the first place to which change should be sought is the Court of Appeal. I agree and consider that I must act in accordance with Bradley, as I did on the recall of sentence.
In my view, there is no basis to recall the sentence and alter it in any way. Accordingly, the application is dismissed.[40]
[40]R v Dickson (Unreported, County Court of Victoria, Judge Howard, 14 May 2010).
The appeal to this Court
As noted earlier, the Director’s written submissions raised no issue about the correctness of Hunter or Piacentino. They did, however, clearly signal a challenge to the approach taken by this Court in Bradley. The submission properly acknowledged that the Court had there acted in accordance with the express submission of the Crown. The submission stated:
In Bradley, the Crown conceded that the Court should proceed on the assumption that the offender would be required to serve an outstanding parole sentence once the non-parole period for the offences before the court expires. To the extent that the Crown intended to convey that such an approach was of universal application, it is now submitted that the Crown unfortunately erred in making such a concession for the following reasons.
The footnote to this paragraph of the submission stated: ‘In other words, the Crown intended to confine such an approach to the unusual facts before the Court in that particular case’.
I agree that the course taken in Bradley must be treated as confined to the particular circumstances of the case. As explained earlier, the need for resentencing arose because of the sentencing judge’s erroneous application of s 14(1) of the Act. In correcting that error, the court was concerned that the appellant not be placed in a less advantageous position than the sentencing judge herself had intended. Since s 14(1) is wholly inapplicable in these circumstances, what occurred in Bradley – and again in the first sentencing in the present case – should not arise again.
I wish to emphasise, however, that the sentencing judge in the present case acted appropriately at every stage of the sentencing process. Having on the first occasion relied on the erroneous submission of the prosecutor that he should fix a ‘single non-parole period’, his Honour acted very promptly to correct that error following publication of the reasons in Bradley. Likewise, his Honour’s reduction of the non-parole period accorded with what was done in Bradley and was, once again, done with the express concurrence of the prosecutor.
For those reasons, it would have been manifestly unfair to the respondent for any decision of this Court on the question of principle to affect adversely the sentence which the judge imposed on him. That was why I joined in the order, made at the conclusion of argument, dismissing the Director’s appeal.
I should also point out that in this case, as in Bradley, the non-parole period ultimately fixed can be viewed as being not far removed from what the judge would have fixed if there had been no s 14(1) error in the first place. Like the judge in Bradley, the judge here initially arrived at a minimum term by aggregating a ‘significant portion’ of the parole sentence with the minimum which he considered was appropriate for the later offences. Following the recall of the sentence, he disaggregated the minimum term originally fixed, by deducting the parole sentence. The non-parole period thus arrived at can therefore be seen as approximating to his Honour’s view of an appropriate minimum for the later offences. If the earlier aggregation had had the effect of moderating the latter figure, that may have been no more than the principle of totality would have required in any event.
Error of principle
As the earlier discussion makes clear, the Hunter/Piacentino line of authority was dealing with – and only with – the relevance of the parole sentence in the
application of the totality principle. It is for that purpose, and that purpose only, that the prohibition on speculation is relevant.
The parole sentence is quite different from the non-parole period fixed by the sentencing court for the later offences. Whether the full parole sentence will have to be served is a matter wholly within the discretion of the Adult Parole Board. The non-parole period, by contrast, is fixed by the sentencing court and identifies the minimum term of imprisonment which must be served before the discretion of the Adult Parole Board to release the offender on parole is enlivened. It is, therefore, wrong in principle to approach the fixing of the non-parole period for the later offending as if there will be an ‘overall minimum term’, being the aggregate of the parole sentence and such non-parole period as the sentencing court might fix.
Application of the principle of totality ensures that the sentencing court gives consideration to the parole sentence in the manner described above. The sentencing court must be satisfied that neither the head sentence nor the non-parole period fixed for the later offences is disproportionate to the total criminality represented by both the later offences and the original offences. Beyond that, however, the parole sentence has no role to play in the sentencing for the later offences.
BUCHANAN JA:
I agree with Maxwell P.
WEINBERG JA:
I agree with Maxwell P.
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