DPP v Milson
[2019] VSCA 55
•15 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0153
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| PAUL MILSON | Respondent |
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| JUDGES: | PRIEST, McLEISH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 February 2019 |
| DATE OF JUDGMENT: | 15 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 55 |
| JUDGMENT APPEALED FROM: | DPP v Milson (Unreported, County Court of Victoria, Judge Allen, 6 July 2018) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Intentionally causing injury, robbery, intentionally causing serious injury and other offences – Respondent sentenced to six years and five months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly inadequate – Significant mitigating factors – Mercy – Prospects of rehabilitation – Whether residual discretion should be exercised – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms D Piekusis SC | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr M J Gumbleton | Marcevski Lawyers |
PRIEST JA
WEINBERG JA:
Introduction
Following the respondent’s pleas of guilty in the County Court on 18 June 2018 to charges including intentionally causing injury, robbery and intentionally causing serious injury, on 6 July 2018 a judge of that court sentenced him to be imprisoned for 6 years and 5 months, with a non-parole period of 3 years and 6 months, in accordance with the following table:
Charge Offence Sentence Cumulation Indictment 1 Intentionally causing injury[1] 18 months 9 months 2 Robbery[2] 12 months 6 months 3 Failure to comply with Court order to provide assistance[3] 1 month — 4 Intentionally causing serious injury[4] 5 years Base 5 Possessing a drug of dependence[5] 3 months — Related summary offences 10 Committing an offence whilst on bail[6] 1 month 1 month 17 Committing an offence whilst on bail 1 month 1 month Total effective sentence: 6 years and 5 months’ imprisonment Non-parole period: 3 years and 6 months Pre-sentence detention: 631 days Section 6AAA declaration: 8 years with non-parole period of 5 years Other orders: Forensic Sample and Disposal orders [1]Crimes Act 1958, s 18. The maximum sentence is 10 years’ imprisonment.
[2]Crimes Act 1958, s 75. The maximum sentence is 15 years’ imprisonment.
[3]Crimes Act 1958, s 465AA(9). The maximum sentence is five years’ imprisonment.
[4]Crimes Act 1958, s 16. The maximum sentence is 20 years’ imprisonment.
[5]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is imprisonment for one year or 30 penalty units (or both).
[6]Bail Act 1977, s 30B. The maximum penalty is three months’ imprisonment or 30 penalty units.
By a notice of appeal dated 3 August 2018, the Director of Public Prosecutions contends that the individual sentences on charges 1, 2 and 4, and the total effective sentence and non-parole period, are manifestly inadequate. The sole ground of appeal is supported by a number of ‘particulars’, which it is unnecessary to set out.[7]
[7]See DPP v Weybury (2018) 84 MVR 153, 169 [50] (Priest JA).
As we will make clear, we consider that there is substance in the Director’s contentions that the individual sentences on charges 2 and 4, the total effective sentence and non-parole period, are each manifestly inadequate. We would, however, exercise this Court’s residual discretion to dismiss the appeal notwithstanding that manifest inadequacy.
The respondent’s offending
Before turning to the plea and the judge’s reasons for sentence, and to the parties’ arguments on the appeal, it is necessary to say something of the respondent’s very serious offending.
Charges 1 and 2
Daniel Olah is the victim on charges 1 and 2. He was an associate of Bobby Stojanovic, Mark Ahern and the respondent. Olah had known Stojanovic for more than ten years, Ahern for one year and the respondent for eight years.
Stojanovic was married to Roxana Fofelzan. They had separated in April 2015. Olah and Folfezan became friendly within a couple of months after the separation and were in a relationship by the time of the offending.
On 10 November 2015, the respondent sent a text message to Olah asking him to come to Ahern’s residence. When Olah arrived and went inside, the respondent was in the kitchen. He invited Olah to go out to the backyard for a smoke. Stojanovic and three other males were in the backyard. The respondent called Olah a liar, telling him that he had been seen with Fofelzan the previous day. When Olah denied that, the respondent attempted to punch him. Olah avoided the punch, but Stojanovic and the other males commenced to assault Olah by punching him to the head and body. When Olah went to the ground he was kicked to the ribs and stomach. The attack continued for about two minutes, and resulted in Olah suffering a swollen and bruised face and bruises on his right hip.
The respondent then demanded that Olah hand over the keys to his car and the jewellery that he was wearing, telling him that he would not get ‘his stuff’ back until he paid the respondent $45,000.
Police later located an SMS on the respondent’s mobile telephone, in which the respondent messaged Ahern in relation to the assault:
The ending was like a rocky [sic] movie. The young asain [sic] went round 2 and it was a good 3 min flogging! U shouldn’t have left u would have enjoyed it.
Attempts by Olah in the weeks following the robbery to have the respondent return his stolen property — a car key, a necklace, two bracelets and a Holden Commodore Maloo utility motor vehicle — were unsuccessful. Indeed, on 6 January 2016, the vehicle was found burnt out.
Charge 3
On 16 December 2015, a Magistrate issued a search warrant under s 465 of the Crimes Act 1958 permitting police to search the respondent’s premises. The warrant included an order under s 465AA, requiring the respondent to permit police to access data from his computers or data storage devices.
Police searched the respondent’s residence on 22 December 2015. They found one of Olah’s stolen bracelets, and seized various mobile telephones and computers. Police informed the respondent of the order under s 465AA; told him that it was an indictable offence punishable by imprisonment to fail to comply with the order; and requested him to provide the passwords necessary to access the seized mobile telephones and computers. After seeking legal advice, the respondent refused to comply with the police request. (Notwithstanding the respondent’s refusal, however, police managed to access data on one of the mobile telephones.)
Charges 4 and 5
‘SW’, the victim in charge 4, was a drug trafficker. Both the respondent and another individual, Matthew Angus, supplied him with drugs.
SW had not paid an outstanding drug debt. The respondent and Angus determined that shooting SW in the leg would be a means of persuading SW to pay.
On 22 August 2016, Angus contacted SW via Facebook Messenger so as to arrange a meeting to discuss the debt. SW told Angus that he had just been released from prison and that he did not have the capacity to pay. Some weeks later, on 30 September 2016, Angus again contacted SW. They arranged to meet the following day at Parkmore Shopping Centre.
At about 1.00 pm on 23 August, Angus met SW at the shopping centre. Angus told SW to get into his car and they drove off, ostensibly to meet the respondent (albeit that the respondent was following in another vehicle). Angus drove to a semi-rural location in Carrum Downs. On arrival, Angus got out of the vehicle and spoke to the respondent, who had arrived in his vehicle. Angus then returned to his vehicle and told SW to leave his three mobile phones in the vehicle and to get out.
SW then approached the respondent, who demanded that he pay the money he owed. The respondent told SW that he had to pay that day. SW said that he did not have the money. The respondent — who was a ‘prohibited person’ under the Firearms Act 1996[8] — then took a small handgun out of his bag and shot SW in the left leg at close range. The bullet penetrated SW’s upper left knee and exited through the rear of his left calf. He fell to the ground. Angus and the respondent then left, taking SW’s three telephones. SW was found by a passer-by, who called emergency services. He was taken by ambulance to hospital.
[8]See the definition in s 3(1) of the Act. On 29 April 2016, the respondent was convicted of three offences of being a prohibited person in possession of a firearm (in relation to which it was open to the court to impose a term of imprisonment). He was also convicted of possessing cartridge ammunition without a permit, five offences of possessing a drug of dependence and one offence of possessing a Schedule 4 poison.
Police attended the scene that day and the next. They found a spent nine millimetre calibre shell casing where the respondent’s and Angus’ vehicles had been parked, and a discharged bullet fragment about three metres away from blood splatter near where the spent shell casing was found.
As a result of his injuries, SW spent six days in hospital. He had surgery to remove metal fragments from his leg, and suffered significant nerve damage resulting in a loss of function to his left foot, causing ‘foot drop’. SW had to wear a hinged knee brace to prevent further dropping, and had ongoing nerve damage. His injuries were reviewed on 19 December 2016, the doctor being of the opinion that recovery would take in excess of six months, if he ever recovered at all. At the time of sentence, SW still had nerve damage and reduced function in his left foot.
When police searched the respondent’s residence on 12 October 2016, they located drugs of dependence, including 1.7 grams of methylamphetamine in a plastic bag; 17 oxycodone tablets in a box; 10 methandienone tablets in a bottle; and four testosterone injections in a box and a paper bag. They also found $25,000 cash in a bag.
Charges 4 and 5 were committed whilst the respondent was on bail in relation to the offending that is the subject of charges 1, 2, and 3. He was also subject to an 18 month community correction order imposed on 29 April 2016 for firearms and other offences.
The plea
Counsel for the respondent on the plea accepted that a term of imprisonment was inevitable. He relied on six principal factors, however, in support of the submission that the sentence should be ‘moderated’: first, the respondent’s guilty pleas; secondly, his ‘limited’ prior criminal history; thirdly, that it was his first time in custody; fourthly, his difficult background; fifthly, the manner in which the pre-sentence detention has been served; and, sixthly, the burden of imprisonment upon him.
The respondent, who is now aged 31,[9] has had a difficult life. His parents separated before he knew his biological father. His mother, Barbra Milson, then had a daughter to another man, who took no part in his daughter’s or the respondent’s upbringing. The respondent’s mother struggled as a single parent with limited financial means, initially raising her two children in Gippsland. When the respondent was aged five years, his mother commenced a relationship with ‘Paul’, who became stepfather to the respondent and his sister. The respondent assumed responsibility for the care of his mother and sister when aged 15 or 16, however, after it was discovered that his stepfather had committed sex offences against a close relative. It took some eight years from the time that the complaint was made until Paul’s ultimate conviction and sentencing. During this period, the respondent commenced working in a factory outside of school hours. The respondent had no father figure to guide him through his teenage years. He refused to engage in counselling, became angry and fought with others at school. Eventually he started to miss school and ultimately was expelled in Year 11.
[9]His date of birth is 12 April 1987.
Prior to the trauma within his family, the respondent had gained literacy and numeracy skills, had progressed well at school and had not come to the attention of police. Once he left school, however, he experimented with drugs, never having dealt with the anger caused by the trauma within his family.
At age 18, the respondent commenced an apprenticeship as a boilermaker. He completed three years of apprenticeship, but, because of a motorcycle accident, never qualified. As a result of the accident the respondent was hospitalised for a month, followed by extended rehabilitation to teach him to walk again. By the age of 23, following the motorbike accident, the respondent was addicted to methylamphetamine, GHB and crack cocaine.
When aged 24, the respondent was in a relationship with Katrina Mummery, and they had a daughter ‘Havana’, now aged six. Havana was born with mild brain damage, and the difficulty experienced in caring for her took its toll on the new parents. Although he engaged in counselling, the respondent struggled to cope. Katrina turned to drugs. The respondent sought out the camaraderie that membership of the Commanchero Motorcycle Club offered. Whilst associated with the Commancheros, the respondent had another relationship with ‘Bella’, with whom he had a son ‘Leo’, now aged two. Whilst maintaining his membership with the Commancheros, the respondent tried to live a normal life. He separated from Bella, and remained the primary carer for Havana until his remand. The respondent has since commenced a relationship with Toni-Marie Ferro. Prior to his arrest, they were planning to build a house, and the respondent was planning to open a motorcycle shop.
Counsel for the respondent submitted that the offending occurred when the respondent was addicted to drugs, against the background of unresolved trauma from earlier in his life. The motivation for the offending the subject of charges 1 and 2 was the fact that the victim commenced a relationship with the ex-wife of his close friend, Stojanovic; and the motivation for the offending the subject of charge 4 was the drug debt owed to Angus, which in turn was owed to the respondent. It was accepted, however, that neither motivation mitigated the objective seriousness of the offending.
The respondent has been in custody since 12 October 2016. Upon reception at Port Phillip Prison, the respondent was assaulted and sustained injuries to his left ear and lip. He was confined to a single cell, and was allowed out of his cell by himself for one hour per day. In November 2016, the respondent was stabbed with a ‘shiv’ to the left side of his neck by the same group responsible for the earlier assault upon him. He was hospitalised and underwent surgery to repair muscle damage, the shiv barely having missed an artery. After release from hospital, the respondent was confined to a single cell 23 hours per day, again being allowed out of his cell by himself only for one hour per day. He was allowed one telephone call per day and one non-contact visit per week, but no television. Between 13 December 2016 and 23 March 2017, the respondent’s custody saw him confined to a single cell, with ‘lockdown’ between 7.30 pm and 8.00 am. He had all day access to a kitchen, ‘chook pen’, basketball court and outdoor gym, and he could mix with other prisoners. Following a fight between two rival ‘bikie’ groups on 23 March 2017, however, members of both groups were sent to isolation. The respondent was confined to a single cell, and was allowed two hours per day out of his cell in the ‘chook pen’ by himself, two telephone calls per day, two non-contact visits per week (two visitors), one contact visit per week (three visitors), but no television. From 7 February 2018 until the date of the plea, however, the respondent had been a ‘mainstream’ prisoner as a result of his direct approach to the Deputy Director General of Corrections. The respondent had encountered no further problems and was considered a ‘model prisoner’.
Counsel for the respondent tendered a psychological report dated 11 June 2018, prepared by consultant psychologist, Ian Mackinnon (Exhibit 3), which contained the following:
In my opinion, Mr Milson’s functional intelligence fell within the normal adult range. His general cognitive functioning appeared to be within the normal adult range. His immediate, short and long term memory faculties appeared normal. At the time I assessed him, Mr Milson was appropriately oriented to time, place and person, and he did not appear to be suicidal.
At the time I assessed him, Mr Milson appeared to be suffering with a Post-Traumatic Stress Disorder (PTSD) of mild to moderate intensity. Symptoms of Mr Milson’s PTSD include: heightened levels of anxiety and depression, rumination, flashbacks, hypervigilance, nightmares, disturbed sleep, sensitivity to environmental cues and triggers and so on.
In my opinion, Mr Milson tended to minimize the true level of his distress and it is possible that he was more depressed and anxious than he was willing to reveal.
Mr Milson admitted that, after he was stabbed at [Port Philip Prison] in 2016, he had been quite traumatised and ‘in shock’ and he had taken medication prescribed by prison medical staff to calm him (possibly a sedative). However, after being told to ‘toughen up’ by other members of the Comancheros [Motorcycle Club], he had ceased taking the prescribed medication and ‘soldiered on’ without medicinal assistance.
Nevertheless, Mr Milson did admit: ‘The guy who stabbed me ran up from behind. I think about the stabbing every day. I don’t sleep much at all. If I hear a bang, I jump. In the past, I wouldn’t have moved.’
Since being remanded, Mr Milson appears to have overcome a Poly-Substance Abuse Disorder. However, Mr Milson has been held in a contained environment for an extended period and he will be at some risk of relapsing when he is eventually returned to the wider community.
Despite demonstrating some antisocial and criminal tendencies in the past, Mr Milson does not appear to have an inherently antisocial or criminal character. Mr Milson has emotional attachments to his children and other family members and he has good prospects (and a determination) to establish a legitimate business. Much of Mr Milson’s offending appears to have stemmed from his associations with other individuals and if he can eliminate such associations in the future, his rehabilitative prospects appear favourable.
Mr Milson appeared to express genuine remorse over the current offences …
The respondent’s counsel also relied upon a number of character references (Exhibit 5), which included letters from his mother, Barbra Milson; a former partner, Katrina Mummery; his current partner, Toni-Marie Ferro; and several others, all of whom spoke of the respondent’s good qualities.
The judge’s reasons
In his reasons for sentence, the judge observed that the respondent had ‘remarkably few prior convictions’, attracting his first conviction only after he ‘got involved with the outlaw motorcycle club’. The judge described the respondent’s actions founding charge 2, robbery, as ‘outrageous behaviour’.
Having summarised the factual basis of charge 4, the judge observed:
This summary paints a pretty terrible picture that suggests that you need to be severely punished. The law is clear: people who become involved in this kind of abject violence, who use weapons, who shoot their fellow citizens must be punished severely. The community needs to denounce their conduct severely. … People who engage in such conduct must be used as vehicles for general deterrence. That is, they should be punished in a way that deters others from being tempted to engage in such appalling antisocial, violent behaviour. They also need to be punished in a way that deters them from ever being tempted again to engage in such conduct. The community needs to be protected from them.
The judge discussed the character evidence and the respondent’s personal history (including his drug use) and said:
One unusual feature, of several in your case, is that despite what became a raging drug addiction and despite your very serious psychological difficulties, you did stay away, largely, from crime and you continued to work hard. You have a remarkably strong employment history. It is a very powerful factor in assessing your prospects for rehabilitation.
Various ‘glowing’ character references were then summarised in some detail, before the judge turned to the circumstances of the respondent’s custody, which the judge was satisfied ‘has been unusually burdensome already, by reason of the fact that [the respondent has] spent such a long period in the confined and harsh conditions in “the slot” as it is called, in solitary confinement’.
His Honour expressed the view that the respondent’s plea of guilty was prompted by genuine remorse,[10] and that it also facilitated the course of justice and absolved the victims from having to give evidence.
[10]The judge cited passages from R v Kevich (Unreported, Court of Criminal Appeal, 25 November 1977) (Young CJ) and Phillips v The Queen (2012) 37 VR 594, 621 [101] (Harper JA).
Citing Osenkowski,[11] the judge then stated:
The sentencing court is entitled so show some mercy where, in the judge’s opinion, particularly in the case of an experienced judge, it seems that an offender is ready to rehabilitate and where there are other compelling circumstances that reasonably excite some sympathy in the judge’s mind. To some extent, that statement is apposite in this case.
[11]R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ) (‘Osenkowski’).
The judge also observed:
Your incarceration has involved an unusual level of hardship already, by reason of your solitary confinement and also by reason of your separation from your family which struggles in various ways in your absence, a family which, in the past, has depended on you heavily for support. I accept that you are very much aware of that, and it makes your time in gaol more burdensome. That will continue for the balance of your sentence.
His Honour discussed the respondent’s ‘unresolved trauma’ experienced as a teenager, which probably resulted in his addiction to drugs, and said:
I have given weight to all of those mitigatory matters, and they are significant, but we come back to where we started. The objective gravity of your offending is so serious: Its repetitious nature and the fact that the conduct in relation to Charge 4 occurred when you were on bail in respect of the previous serious offending, and also on a Community Corrections Order, are matters which I must take into account as serious aggravating features. All of these matters together dictated that you were going to receive a very significant sentence.
I have taken the mitigatory matters into account in determining the appropriate sentence. I have also given those matters particular weight, which I consider the law entitles me to do, in assessing the appropriate minimum non-parole period. There are some cases where the court is justified in imposing a very low minimum non-parole period compared to what would have been imposed, but for the compelling mitigating circumstances. I regard the combination of those circumstances in this case as being significantly compelling. So it is the sentences are as follows …
The judge then pronounced sentence, and, having done so, addressed the following remarks to the respondent:[12]
I have said enough about the gravity of your offending. I want to say something on the other side of the equation now that you are facing that sentence of imprisonment. It is very unusual for someone in your position, who had gone through so much as a child and as a teenager, and got so heavily into drugs, and then joined an outlaw motorcycle gang and become involved in such serious crime, so unusual to have such strong support from such decent people. Strong family support and strong support from friends and employers. Extremely unusual.
It is also extremely unusual to find someone in your position with such a strong work history, a strong work ethic. That is why I have taken the course that I have. For what it is worth, I encourage you, as sincerely as I can, to make every effort you can — between now and when you are eligible for parole — to do everything to demonstrate to the Parole Board that you are worthy of the sort of trust that Mr Money [Deputy Director General of Corrections] has placed in you and that your family have in you.
But you know what that means in terms of your future associations? There are no two ways about it. If you do not make the proper choice, no matter how hard you try you will be dragged back into this sort of behaviour and you will end up back in gaol and you will not get another chance.
[12]Emphasis added.
The Director’s contentions on the appeal
With respect to the sentence on charge 1, counsel for the Director in effect submitted in the written case[13] that the judge’s characterisation of the offence — ‘a vicious attack upon a man on the ground’ — did not sit well with the sentence imposed on that charge, which represented a mere 15 per cent of the available maximum penalty. Similarly, the judge’s characterisation of the robbery, charge 2 — a ‘serious example of a robbery’ — was inconsistent with the sentence imposed, which equated to 6.7 per cent of the available maximum penalty. And it was submitted that the sentence on charge 5, which represented a mere 25 per cent of the statutory maximum, does not reflect the seriousness of the respondent’s offence.
[13]Counsel who signed the written case was not counsel who appeared on the hearing of the appeal.
Further, the Director’s counsel submitted that the orders for cumulation of the sentences on charges 1 and 2 on the sentence on charge 4 were manifestly inadequate, as was the total effective sentence. In light of the objective gravity of the offending, it was contended that the non-parole period fixed is also manifestly inadequate.
Counsel for the Director submitted in writing that although it is ‘not necessary to precisely articulate where the judge has erred’, the judge must have ‘over-valued’ the personal matters in mitigation. Acknowledging that there were ‘significant matters’ in mitigation, and ‘the absence of a significant criminal record’, counsel argued that the respondent’s ‘entrenched history of drug abuse’, and the fact that he remains ‘a patched member of an outlaw motorcycle gang’, does not ‘bode well’ for rehabilitation.
Finally, counsel for the Director submitted that the judge must have ‘over-weighted’ his finding that that the respondent’s time in prison would be more burdensome as a result of the hardship his separation created for his daughter and current partner. Citing Markovic,[14] the Director submitted that there is no residual discretion as to mercy ‘where it relates to an appeal to reduce sentence on the basis of family hardship’.
[14]Markovic v The Queen (2010) 30 VR 589, 594 [15] (‘Markovic’).
In her oral submissions on the hearing of the appeal, counsel for the Director appeared to adopt the main thrust of these submissions (albeit with some variation from those in the written case).
The respondent’s submissions
Counsel for the respondent submitted that the Director’s submissions disregard the powerful mitigating factors accepted by the experienced sentencing judge. It was contended in writing that the Director’s submissions ‘focus upon the offences committed, rather than also taking into account the mitigating factors’. The sentence imposed ‘involved a difficult balancing exercise, a matter recognised by the experienced sentencing judge’. Orally, counsel submitted that the ‘entirety of the evidentiary material’ advanced in favour of the respondent was accepted by the sentencing judge.
As to prospects of rehabilitation, the respondent’s counsel submitted that a ‘strong factor’ in the respondent’s favour was that he had been using his time in prison constructively, by doing courses, volunteering to work, exploring self-growth and becoming a model prisoner. Indeed, the judge ‘was impressed by the strong support from decent people’ — family, friends and employers — such support being critical to the respondent’s prospects of reformation. Despite the respondent’s ‘very sad and troubled’ upbringing, the sentencing judge found that he had a ‘remarkably strong employment history’, which was a ‘very powerful factor in assessing [his] prospects of rehabilitation’. Moreover, it was submitted that the respondent’s plea of guilty and evidence of genuine remorse indicated realistic prospects of rehabilitation.
With respect to the circumstances of the respondent’s custody, his counsel submitted that his pre-sentence detention had been onerous and that his continued detention would be particularly burdensome upon him. The respondent had been stabbed in the neck whilst on remand, and, after surgical intervention, had been held in solitary confinement. Thus, the respondent had spent 12 to 14 months in solitary confinement — in the ‘slot’ — so that he was confined to his cell for up to 23 hours per day. He had restricted visits and telephone calls, and had limited access to other inmates, employment, education and programs. Furthermore, the respondent’s incarceration led to his partner, Ms Ferro, collapsing mentally, she being diagnosed with depression and anxiety. The respondent was also aware that his daughter was suffering as a result of his incarceration and that it fell to others to care for her whilst he was imprisoned.
In light of the powerful factors in mitigation, so the respondent’s counsel submitted, neither the individual sentences on charges 1, 2 and 4, nor the orders for cumulation, are manifestly inadequate. The combination of ‘powerful’ mitigatory matters also justified the non-parole period imposed.
Finally, putting the respondent’s ‘commitment to rehabilitation’ at the forefront, counsel for the respondent relied on this Court’s residual discretion not to intervene notwithstanding that error might have been shown.[15]
[15]Counsel cited Green v The Queen (2011) 244 CLR 462, 477 [36], 479–80 [42]–[44] (French CJ, Crennan and Kiefel JJ). See also DPP v Karazisis (2010) 31 VR 634, 658 [104], 659–60 [111]–[114] and 661 [119] (Ashley, Redlich and Weinberg JJA; Warren CJ and Maxwell P dissenting) (‘Karazisis’).
Discussion
As his remarks to the respondent make clear,[16] the sentencing judge took the course that he did because he considered it to be extremely unusual for someone in the respondent’s position — ‘who had gone through so much as a child and as a teenager, and got so heavily into drugs, and then joined an outlaw motorcycle gang and become involved in such serious crime’ — to have such strong support from family, friends and employers, and to have such a strong work ethic. His Honour also made it clear that, at least to some extent, he was moved by considerations of mercy.
[16]See [39] above.
Mercy may justify the imposition of a sentence which may bear less heavily upon an offender than if he or she were to receive his or her just deserts.[17] Mercy thus permits considerations such as extreme disadvantage and hardship to be recognised as a factor mitigating sentence. Mercy may also come into play where a judge forms the view that leniency at that particular stage of the offender’s life might lead to reform.[18] Mercy must, however, be exercised ‘upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment’.[19]
[17]See Sentencing Act 1991, s 5(1)(a).
[18]See Sentencing Act 1991, s 5(1)(c).
[19]See [53] below.
In a passage which is often cited in the authorities,[20] the New Zealand Court of Appeal observed in Radich:[21]
We should say at once that this last argument omits one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.
[20]See, e.g., R v Williscroft [1975] VR 292, 298 (Adam and Crockett JJ).
[21]R v Radich [1954] NZLR 86, 87.
And in Kane, the Court commented:[22]
In saying what we have said, we are not to be taken as asserting that mercy can play no part in determining the course that a court should adopt. As the passage above cited from R v Radich recognizes, justice and humanity walk together. Cases frequently occur when a court is justified in adopting a course which may bear less heavily upon an accused than if he were to receive what is rather harshly expressed as being his just deserts. But mercy must be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment. If a court permits sympathy to preclude it from attaching due weight to the other recognized elements of punishment, it has failed to discharge its duty.
[22]R v Kane [1974] VR 759, 766 (Gowans, Nelson and Anderson JJ) (‘Kane’).
As we have mentioned, the sentencing judge adverted to the (also oft-cited)[23] observations of King CJ in Osenkowski:[24]
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[23]See, e.g., R v Clarke [1996] 2 VR 520, 523.
[24]Osenkowski, 212–3.
Referring to the passage set out immediately above, Tadgell JA said in Miceli[25] that ‘it cannot be doubted that an element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion’;[26] and making reference to Kane, Charles JA expressed the view that the sentencing judge had
to consider whether, on the evidence before him, a reasonable basis existed in well-balanced judgment for adopting a course which might bear less heavily on the applicant than if he were to receive his just deserts. It would be quite wrong for anyone to have thought that our system of justice did not entitle the prisoner standing for sentence to receive proper consideration of any claim he may legitimately have had to the exercise of clemency.[27]
[25]R v Miceli [1998] 4 VR 588.
[26]Ibid 592.
[27]Ibid 594. See also Richard G Fox, ‘When Justice Sheds a Tear: The Place of Mercy in Sentencing’, (1999) 25 Monash University Law Review 1. And see Adams v The Queen [2011] VSCA 77, [70] (Nettle and Redlich JJA, and Kyrou AJA) and Akoka v The Queen [2017] VSCA 214, [75] (Warren CJ, Kyrou and Redlich JJA), where it was held that although considerations of mercy may inform the appropriate range, they cannot justify a manifestly inadequate sentence.
In the present case, it cannot be doubted that the respondent had endured a difficult upbringing, culminating in him leaving school in Year 11. Moreover, he had suffered severe and debilitating injuries in a motorcycle accident when in his early 20s, which prevented him from completing his boilermaker apprenticeship. He also has a child with deficits associated with mild brain damage (although it is not contended that his child’s condition constitutes the kind of exceptional hardship contemplated by Markovic). Despite these manifold problems, however, the respondent has a good work record, and is regarded as a valuable employee. Furthermore, he has attracted the admiration of a number of decent individuals with whom he is personally associated.
It cannot be forgotten, however, that the respondent was aged 28 when he offended. Hence, it might be said that the hardship he endured in his upbringing as a child and adolescent was well behind him, as was the motorcycle accident and its consequences. The judge found, however, that the ‘unresolved trauma’ the respondent ‘experienced as a child and teenager … probably resulted in [his] addiction to multiple drugs’. Although that did not excuse the respondent’s conduct, to some extent it explained and put in context his membership of the Comancheros, which in turn explained and put in context his offending.
To our minds, a far more significant feature mitigating the respondent’s sentence is the undeniable fact that the respondent’s custody had been more burdensome for him than for other prisoners. He was stabbed in the neck (and underwent necessary surgical intervention); had spent a year or so in solitary confinement, being permitted to leave his cell for only an hour a day; and had other restrictions imposed upon him. Thus, unlike those cases where, for example, a sentencing judge is required to make a prediction of whether an offender’s custody may be more burdensome because of impaired mental functioning,[28] the burdensome nature of the respondent’s confinement has empirically been shown. It is not a matter of prediction or mere speculation.
[28]R v Verdins (2007) 16 VR 269.
Perhaps ironically, the respondent’s time on remand had also gone some way towards demonstrating his good prospects for rehabilitation. In very unusual circumstances, through his direct intervention with prison authorities, he had himself moved into the mainstream prison population, where he has undertaken educational programs and shown himself to be a ‘model’ prisoner.
The principles that govern Crown appeals are well-known. They have been set out in a large number of cases, including Zhuang.[29] The Court summarised some of the more significant principles in McInnes.[30] They include:
· first, that the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice;
· secondly, that the members of this Court may not substitute our own opinion for that of the sentencing judge merely because we would have exercised our discretion in a manner different from the manner in which the sentencing judge exercised her discretion;
· thirdly, that manifest inadequacy of sentence is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge;
· fourthly, that a sentence may be inadequate either because the wrong type of sentence has been imposed — for example, non-custodial rather than custodial — or because the sentence imposed is manifestly too short; and
· fifthly, that manifest inadequacy will not be established unless the sentence is wholly outside the range of sentencing options available to the sentencing judge, in the sense that it was not reasonably open to the sentencing judge to arrive at the sentence which [he] did had proper weight been given to all the relevant circumstances of the offending and of the respondent.
[29]DPP v Zhuang (2015) 250 A Crim R 282, 292–5 [29]–[37] (Redlich, Priest and Beach JJA) (‘Zhuang’).
[30]DPP v McInnes [2017] VSCA 374, [75] (Priest and Beach JJA).
Notwithstanding the powerful mitigating factors called in aid by the respondent, as we have indicated we are of the view that the individual sentences imposed on charges 2 and 4; the total effective sentence arrived at through the orders for cumulation; and the non-parole period; reveal such manifest inadequacy as to constitute error in principle.[31] We do not hold the same view of the sentence on the first charge.
[31]Everett v The Queen (1994) 181 CLR 295, 300; R v Clarke [1996] 2 VR 520, 522; Wong v The Queen (2001) 207 CLR 584, 605 [58]; Barbaro v The Queen (2014) 253 CLR 58, 79 [61]; R v Pham (2015) 256 CLR 550, 559 [28]. See also Zhuang, 298 [44].
Turning first to the sentence on charge 1, it must be acknowledged that the attack on Daniel Olah was not spontaneous. Rather, it was planned and premeditated, and involved luring the victim to a location where he could be set upon by a number of men in company. Further, it must also be acknowledged that although the attack may not have resulted in serious injury (as now defined),[32] the seriousness of the offence provided for in s 18 of the Crimes Act 1958 is to be gauged not only by the injury caused, but by the circumstances of its infliction. Hence, in the present case, in what was described by the judge as a ‘vicious attack’, the victim was punched and kicked by four men for about two minutes.
[32]See Crimes Act 1958, s 15. See also Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313, [3] (Weinberg JA), [53] (Osborn and Priest JJA).
Moreover, although the respondent’s prior criminal history is ‘limited’, this is not the first time he has been dealt with for a crime of violence. Thus, in the Magistrates’ Court on 21 May 2008 he was released on a bond without conviction — which he later breached — for unlawful assault (and behaving in an offensive manner in a public place); and on 26 May 2015 he was fined $2000 without conviction for affray.
Given these circumstances, we regard the sentence of 18 months’ imprisonment imposed by the sentencing judge on charge 1 to be relatively lenient.[33] We are not persuaded, however, that it is wholly outside the range of sentences open to the judge in the proper exercise of the sentencing discretion.
[33]On 19 October 2018, Stojanovic pleaded guilty in the Magistrates’ Court to a charge of intentionally causing injury and was fined $3000. We were informed that a charge of robbery was withdrawn.
The same cannot be said of the sentence imposed on charge 2, robbery, which we regard as being at odds with proper sentencing standards and wholly outside the range of sentences open to the judge in the proper exercise of the sentencing discretion. The circumstances of the robbery, which the judge accurately described as ‘outrageous behaviour’, were grave, but the sentence of a year’s imprisonment on that charge does not come close to reflecting the objective gravity of the offence.
With respect to charge 4, intentionally causing serious injury, the respondent deliberately shot the victim in cold blood, for the purposes of enforcing a drug debt. His was not an act borne of provocation[34] or a temporary loss of self-control. It was a calculated, callous and cruel crime, committed by an individual who at the time was on bail — an aggravating feature[35] — and subject to a community correction order — a further aggravating feature.[36] Not only does the use of a firearm increase the gravity of the offence, but the fact that the respondent was a prohibited person at the time of the shooting is a serious aggravating feature of the crime.[37] Furthermore, the victim suffered ongoing loss of function of his foot as a result of the nerve damage caused by the gunshot. When proper weight is given to mitigating factors, the sentence imposed on charge 4 simply does not reflect the objectively serious features of the offence balanced against those factors. It is manifestly inadequate.
[34]For example, see R v Okutgen (1982) 8 A Crim R 262.
[35]R v Gray [1977] VR 225, 229–230; R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J); R v Basso & Frazetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA), 404–5 [57]–[63] (Charles JA); DPP v Galea and Mosut (2000) 112 A Crim R 507; R v Pop (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA); Samuels-Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
[36]Bieljok v The Queen [2018] VSCA 99, [68] (Weinberg, Beach and Hargrave JJA); DPP v Basic [2017] VSCA 376, [70] (Weinberg, Osborn and Priest JJA).
[37]Curiously, counsel for the appellant who prepared the written case submitted in writing that the fact that the respondent was a ‘prohibited person’ was not relied upon by the prosecution as an aggravating feature, but ‘rather places the offence in a realistic context – namely, that previous court orders did not deter the respondent from possession (indeed use) of a firearm’. Counsel for the appellant who appeared on the hearing of the appeal did not endorse or adopt that submission.
Furthermore, the assessment that the sentences on charge 2 and on charge 4 (the base sentence) are manifestly inadequate, leads almost inexorably to the conclusion that the total effective sentence and non-parole period are also manifestly inadequate.
In the circumstances of this case, however, we do not regard those conclusions as determinative of the appeal.
As we have said, counsel relied on the respondent’s demonstrated commitment to rehabilitation when invoking the exercise of the Court’s residual discretion.[38] As was made clear by French CJ and Gageler J in CMB,[39] the residual discretion only arises if the Director has demonstrated ‘that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust’.[40] The discretion does not fall to be considered unless that threshold is met. Once the discretion is enlivened, however, the Director must negate any reason why the residual discretion not to interfere should be exercised.[41] So much was not disputed by counsel for the Director in this Court.
[38]Karazisis, 658 [104] and 659–60 [111]–[114].
[39]CMB v Attorney-General (NSW) (2015) 256 CLR 346.
[40]Ibid 358 [33].
[41]Ibid 358–60 [33]–[36].
Without recapitulating all of the factors going in mitigation, his Honour took into account: the respondent’s pleas of guilty, not only as facilitating the course of justice, but also as a reflection of his ‘genuine remorse’; his ‘remarkably strong employment history’; the ‘glowing employment references’ and the support that he had from his employers; the testimonials from his mother, former and current partners, and others; the added burden of imprisonment flowing from the respondent’s separation from his family (and in particular, from his mildly disabled daughter, Havana); the respondent’s ‘unusually burdensome’ custody as a result of having been stabbed and later kept in solitary confinement; and the fact that he is a ‘model prisoner’. The principal factor animating the exercise of his Honour’s sentencing discretion, however, appears to have been the respondent’s prospects of rehabilitation. Thus, his Honour remarked that it was ‘very unusual’ for someone in the respondent’s position ‘to have such strong support from such decent people’, and ‘extremely unusual’ to find someone in the respondent’s position with such a strong work ethic.
In a climate when sentences for many (if not most) crimes are increasing, it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of an offender.[42] If an offender, whether young or recidivist, can be steered away from a life of crime, the public interest is best served. That notion, it seems to us, informed what Young CJ said about the sentencing of youthful offenders in Chmil,[43] and also underpinned the observations that King CJ made in Osenkowski[44] with respect to the sentencing of seasoned offenders. Indeed, although it is often taken for granted that leniency extended by a judge for the purposes of rehabilitation bestows a benefit on the prisoner alone, commentary in social and news media frequently ignores the fact that the community’s interest is best served if well-placed leniency in sentencing may (and often does) lead to reformation.[45]
[42]See Sentencing Act 1991, ss 5(1)(c) and (e).
[43]In AG v Chmil, Zanoni & Ross (Unreported, 1 August 1977, Vic, CCA), a Crown appeal against sentence, Young CJ observed:
I think it should be remembered that in the long run the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal.
[44]At [54] above.
[45]R v Williscroft [1975] VR 292, 303 (Starke J).
Material placed before the Court by the respondent’s counsel in support of the exercise of the residual discretion indicated that whilst imprisoned the respondent has taken part in a number of programs designed to improve his skills, and that he has continued to be a model prisoner. Moreover, in a letter dated 14 February 2019, admitted without objection, Ms Ferro stated that when she looks at the respondent she sees a ‘different man’ staring back, in the sense that the respondent has developed the ability to talk openly about his ‘struggles and anxiety while in solitary confinement’. More importantly, she reported that the respondent ‘shows clear goals in rehabilitating to the best of his ability including progressing his education while given the opportunity in prison to use his time efficiently’.
As we have mentioned, the sentencing judge appears to have been optimistic about the respondent’s prospects of rehabilitating himself (subject to making correct
choices about future associations).[46] Significantly, in the time since he was sentenced, the available evidence suggests that the respondent has maintained a commitment to rehabilitation. In our view, that demonstrated commitment justifies this Court’s exercise of the residual discretion.
[46]See [36] and [39] above.
For these reasons, we would dismiss the appeal.
McLEISH JA:
I agree with Priest and Weinberg JJA that this appeal should be dismissed. However, my reasons for that conclusion are different. Since mine is a minority view, I will express my reasons briefly. I gratefully adopt the description of the offending and the sentencing in their Honours’ reasons.
The sentencing judge observed several times that this was an ‘extremely unusual’ or ‘strange’ case. It was not the offending that was unusual or strange. After describing the offending, the judge stated that it called for severe punishment, for reasons of general and specific deterrence, denunciation and protection of the community. The assault and robbery were described as the actions of a thug. The later offending plainly merited the same description. Especially given the aggravating features that the later offending took place while the respondent was a prohibited person, on bail and serving a community correction order, the judge rightly observed that a ‘very significant sentence’ was dictated.
What the judge regarded as unusual or strange was the strength of the factors in mitigation, and the different picture they suggested of the perpetrator of the calculated and callous violent offending for which he was being sentenced. The judge emphasised the respondent’s ‘[s]trong family support and strong support from friends and employers’, as well as his ‘remarkably strong employment history’. His employer was willing to reemploy him upon his release. The respondent was a
‘kind considerate friend and father’ despite also being a ‘violent, angry, drug selling bikie’.[47] The judge noted the respondent’s genuine remorse, the impact of his difficult upbringing, his limited prior criminal history and the fact that he had not previously been in custody.
[47]It was not suggested that any of the offending was connected with the respondent’s involvement with the Comancheros motorcycle gang.
As Priest and Weinberg JJA note, the difficulties experienced by the respondent in custody had already been significant as a result of having been held in solitary confinement for over a year. He had the additional and ongoing burden of knowing that he was unable to support his family as he had previously, especially his daughter in respect of whom he had sole custody. The respondent had nonetheless made the most of the chance he was given by the Deputy Director General of Corrections, Mr Money, to move into the mainstream prison population and had become a ‘model prisoner’.
All these matters gave the judge cause for optimism as to the respondent’s prospects of rehabilitation and led him to accept that the respondent was serious in his resolve not to reoffend. The judge’s conclusions influenced the individual sentences, the total effective sentence and the non-parole period. He regarded the combination of mitigating circumstances as ‘significantly compelling’. The Director did not seek to disturb any of the judge’s very favourable findings in this regard.
The significant mitigating features to which the judge referred led him to craft a sentence calculated to maximise the chances that the respondent would continue on the path he had already begun while on remand and be successfully rehabilitated (relying on the observations of King CJ in Osenkowski[48]). Reflecting the strength of the judge’s findings, the resultant sentences are certainly low for this offending. However, in the circumstances of this case, I do not think it can be said that, taken individually or together, the sentences are so clearly unjust that it may be inferred that the sentencing discretion has miscarried.[49]
[48](1982) 30 SASR 212, 212–13.
[49]DPP v Dalgliesh (2017) 91 ALJR 1063, 1067 [7] (Kiefel CJ, Bell and Keane JJ); R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).
The comparable cases to which the sentencing judge was referred by defence counsel in respect of the intentionally causing serious injury charge provide some support for that conclusion. While not amounting to a current sentencing practice, they suggest that the sentence of 5 years for that offence was not manifestly inadequate in the circumstances of this case. In Warwick v The Queen,[50] the offender was sentenced to 5 years and 9 months’ imprisonment after a trial in the Trial Division. The offender had fired three shots at the victim, one of which hit him in the upper left thigh and severed his femoral artery.[51] The offender had a long criminal history and was on parole at the time.[52] This Court refused an application to extend the time for seeking leave to appeal against sentence.[53]
[50][2014] VSCA 114 (Priest and Beach JJA).
[51]Ibid [12]–[13].
[52]Ibid [14].
[53]Ibid [15].
In R v Malkic,[54] the offender shot the victim in the arm with a revolver, and shot him again, in the abdomen, after he fell to the ground. Both shots were fired from about one metre. The offending took place in the foyer of an apartment building in Parkville.[55] The offender and the victim were involved to some degree in the world of methylamphetamine dealing and motorcycle gangs.[56] The offender had run a reasonably successful small business.[57] The sentencing judge in the Trial Division assessed his prospects as extremely good,[58] albeit that he had little or no remorse.[59] The offender had no prior convictions. On a plea of guilty, a sentence of 6 years’ imprisonment was imposed on the charge of intentionally causing serious injury.
[54][2015] VSC 154 (T Forrest J).
[55]Ibid [1].
[56]Ibid [2]–[3].
[57]Ibid [12].
[58]Ibid [16].
[59]Ibid [18].
Reference should also be made to Nicholls v The Queen,[60] although the prosecutor eschewed any reliance on it. This case involved two shootings in the context of disputes over drug-related debts.[61] In the first, the offender shot the victim with a shotgun at close range in the leg, removing a portion of his calf.[62] On the second occasion, the offender shot the victim with a pistol at close range in the thigh.[63] After a trial in the County Court, the offender was sentenced to 8 years’ imprisonment on each charge of intentionally causing serious injury.[64] The sentencing judge found that the offender had good prospects of rehabilitation,[65] albeit that there was no evidence of remorse.[66] This Court dismissed an appeal against sentence on the ground of manifest excess.[67]
[60][2016] VSCA 250 (Maxwell P, Osborn and Santamaria JJA).
[61]Ibid [23].
[62]Ibid [38].
[63]Ibid [44].
[64]Ibid [34].
[65]Ibid [132].
[66]Ibid [135].
[67]Ibid [142].
Each of these cases suggests (without of course compelling the conclusion) that the present sentence for intentionally causing serious injury was not outside the sentencing range open to the judge.
For these reasons, in my view the sentences in the present case, while undoubtedly low, have not been shown to be manifestly inadequate. It is unnecessary in the circumstances to say anything about the residual discretion.
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