DPP v Rivette
[2017] VSCA 150
•22 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0147
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| CLINT RIVETTE | Respondent |
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| JUDGES: | ASHLEY and PRIEST JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 May 2017 |
| DATE OF JUDGMENT: | 22 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 150 |
| JUDGMENT APPEALED FROM: | DPP v Rivette (Unreported, County Court of Victoria, Judge Parsons, 6 July 2016) |
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CRIMINAL LAW – Sentence – Crown appeal – One charge of burglary, two charges of theft and one charge of reckless conduct endangering life and two related summary offences – Offending included, inter alia, driving stolen vehicle at speed with victim on bonnet – Aggregate sentence imposed of 715 days’ imprisonment and 2-year community correction order – 581 days of pre-sentence detention not declared – Whether sentence manifestly inadequate – Whether sentencing judge erred in failing to impose a head sentence with a non-parole period and in failing to declare pre-sentence detention – Whether sentencing judge erred in imposing an aggregate sentence – Appeal allowed – Respondent re-sentenced to total effective sentence of five years and nine months’ imprisonment with non-parole period of four years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Ms A J Beech | Stary Norton Halphen |
ASHLEY JA:
PRIEST JA:
The respondent, Clint Rivette, pleaded guilty in the County Court on 15 April 2016 to four indictable offences, being one charge of burglary, two charges of theft, and one charge of reckless conduct endangering life. Two related summary offences — one charge of unlicensed driving and one charge of possessing a controlled weapon — were also determined in the same proceeding.
Following a plea hearing, the respondent was sentenced on 6 July 2016 as follows:[1]
[1]The Record of Orders for the County Court proceeding does not record the sentences imposed for the summary charges, although they were referred to by the sentencing judge in his sentencing remarks. Neither party contends that the aggregate sentence imposed did not include the summary offences.
Charge on Indictment Offence Maximum Sentence Cumulation 1 Burglary
[Crimes act 1958 s 76]10 y Aggregate sentence of 715 days’ imprisonment and 2-year community correction order (‘CCO’)
N/A 2 Theft
[Crimes Act 1958 s 74]10 y N/A 3 Theft (as above) 10 y N/A 4 Reckless conduct endangering life
[Crimes Act 1958 s 22]10 y N/A Summary charge 6 Unlicensed driving
[Road Safety Act 1986 s 18]25 pu / 3 m N/A Summary charge 8 Possess controlled weapon [Control of Weapons Act 1990 s 6] 120 pu / 1 y N/A Total Effective Sentence: 715 days’ imprisonment and 2-year CCO Non-Parole Period: N/A Pre-sentence Detention Declared:
Nil. Order that 581 days spent in custody not to be reckoned as a period of pre-sentence detention under this sentence. 6AAA Statement: 7 y imprisonment with non-parole period of 4 y 6 m Other orders:
● CCO to include supervision, and treat and rehabilitation conditions.
● Licence cancelled and offender disqualified from obtaining licence and permit for 2
years.
● Disposal order.
Grounds of appeal
The Director of Public Prosecutions appeals against the sentence on the following grounds:
1.The aggregate sentence imposed upon the respondent is manifestly inadequate. In particular, the learned sentencing judge gave insufficient weight to community protection, denunciation, general and specific deterrence, and the respondent’s total criminality, and excessive weight to the respondent’s deprived background and remorse.
2.The learned sentencing judge erred in failing to impose a head sentence with a non-parole period and in failing to declare pre-sentence detention contrary to ss 11(1)(b) and 18(1) of the Sentencing Act 1991 and DPP v Grech [2016] VSCA 98.
3.The learned sentencing judge erred in imposing an aggregate sentence in circumstances where the offences were not founded on the same facts and did not form a series of offences of the same or a similar character, and where there were a small number of charges that varied significantly in their seriousness.
Circumstances of offending
The charges against the respondent arose from events that occurred on 26 November 2014, whilst the respondent was in the company of his cousin, Emily Rivette (‘the co-offender’). The circumstances of the offending are set out in the sentencing judge’s remarks as follows:
On 26 November 2014, police attended in the Mill Park area and had occasion to search you when you were outside your address, at which time they found a knife in your left-hand pocket. That gives rise to the summary charge of possessing a controlled weapon.
Later that day, you and your co-offender entered a residential property in Mill Park by way of an unlocked door. That matter gives rise to Charge 1 of burglary. You and your co-offender then stole various items from the premises, which are detailed in paragraph six of the opening. That matter gives rise to Charge 2 of theft. You and your co-accused then returned to your address.
Later that afternoon the victim, Mr Joseph Borg, was preparing to leave his brother-in-law’s home at 1 Norwood Road, Mill Park, close to where you reside at 23 Norwood Road. Mr Borg started his vehicle and then went back into the house to talk with his brother-in-law. You and your co-offender saw the unoccupied vehicle with the engine turned on, and decided to make off with it, with your co-offender carrying the stolen television.
Mr Borg made observation of you doing this and rushed towards his vehicle. He then mounted the bonnet in an attempt to prevent his vehicle being stolen. You stalled the vehicle but soon started it again and sped out of the driveway with Mr Borg on the bonnet. That matters give rise to Charge 3, theft of a motor vehicle.
Mr Borg remained on the bonnet whilst you drove erratically, at speed, swerving from left to right and locking up the brakes. Members of the public were alarmed when they observed this and called 000. Your driving is particularised in some detail in the opening, and of course I had the added benefit of being able to actually observe it for a brief period, with the DVD that was tendered.
Your driving continued for approximately 20 to 30 minutes, with Mr Borg remaining in that dangerous position on the bonnet, holding on to literally preserve his life and his wellbeing, whilst trying to get you to stop on various occasions in return for various things he was able to offer you. That matter gives rise to Charge 4, reckless conduct endangering life, encompassing the danger to the public.
Mr Borg suffered soreness and redness to his body, and minor cuts to his hands and knees from the windscreen, which was broken during the course of the incident. You did not hold a driver’s license or permit, and those matters give rise to the relevant summary charge. In the circumstances which is described in paragraph 15, Mr Borg was able to reach into the car and grab the keys after you had turned the engine off, and as you were leaving, you threatened to stab Mr Borg if he made any movement towards you.
You and your co-offender then ran away from the scene towards the Ruthven police station. You were observed by the police and arrested. Police recovered some of the property from the burglary at 4 Bellevue Court, Mill Park, as well as property from Mr Borg’s vehicle.[2]
[2]DPP v Rivette (Unreported, County Court of Victoria, Judge Parsons, 6 July 2016) [4]-[11] (‘Sentencing Remarks’).
Committal and plea
In his record of interview following arrest, the respondent initially denied the offending. However, he pleaded guilty at the committal hearing on 13 July 2015 and the matter proceeded by straight hand-up brief to the County Court. An indictment and notice of related summary offences were filed by the prosecution. At the commencement of the plea hearing in the County Court on 15 April 2016, the respondent was arraigned on the indictment and entered guilty pleas. A victim impact statement prepared by Mr Borg was tendered by the prosecution. The hearing was adjourned for the purpose of the preparation of further reports — a neuropsychological report from ARBIAS and a psychiatric report from Forensicare. At the resumption of the plea on 27 June 2016, a CCO assessment report was ordered. The plea resumed on 6 July 2016 and, as stated above, the respondent was sentenced the same day.
The co-offender, who was 20 years of age at the time of the offending, was sentenced on 6 January 2015 in the Heidelberg Magistrates’ Court for burglary, theft and theft of a motor vehicle, intentionally damaging property and committing an indictable offence while on bail, as well as unrelated offending as part of a consolidated plea. She received a total effective sentence of eight months’ detention in a Youth Training Centre.
Sentencing remarks
Having set out the circumstances of the present offending — see [4] above — the sentencing judge dealt with matters personal to the applicant. Some of them went in mitigation of sentence, others tended in the opposite direction.
His Honour concluded that the respondent’s plea of guilty at an early stage was indicative of true remorse, notwithstanding that the respondent had made denials of involvement when first interviewed by police.
His Honour accepted that the respondent had been brought up in a dysfunctional family. He had been sexually assaulted by at least two of his mother’s partners or their friends. He had witnessed repeated domestic violence inflicted upon his mother.
As to schooling and employment, the judge accepted that the respondent had attended a school for children with learning difficulties. He had been expelled from secondary schools on at least two occasions for fighting. He had apparently completed Year 9, but had acquired no formal employment skills, and had worked in manual jobs over the years. He had last been employed in 2010.
Respecting the respondent’s family life as an adult, the judge recorded that the respondent had fathered three children, by two different mothers. He had no present connection with either the former partners or the children.
His Honour found that the respondent’s life had been dominated by a cycle of drug abuse and ‘compensatory acquisitive offending’. Certainly, we interpolate, the respondent had a long history of drugs offences and offences of dishonesty. It dated back to 1997, when the respondent was aged 17.
Having referred to the respondent’s social and personal history, most particularly his being brought up in a dysfunctional home, having no formal qualifications, and having fallen into a cycle of drug abuse and related offending, his Honour concluded that these matters provided ‘the basis in part for the application of the principles set out in the case of Bugmy[3] to your situation’.[4]
[3]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[4]Sentencing Remarks, above n 2, [26].
The judge was evidently concerned about the applicant’s psychiatric state, and whether there was evidence of psychological upset — as to the latter, whether by reason of acquired brain injury or for some other reason. For that reason, his Honour took the initiative. He ensured that the respondent was examined by a Forensicare psychiatrist, and that a neuropsychological assessment was made by ARBIAS. Reports having been provided, his Honour took them into account when sentencing the respondent.
His Honour noted in his sentencing remarks that psychiatric registrar Dr James Belshaw of Forensicare, in a report prepared 22 June 2016, had concluded, on balance, that the respondent
likely does not suffer from an enduring mental illness such as schizophrenia or bipolar affective disorder. The prevailing diagnosis is more likely to be a combination of an anxiety disorder and mild depression, with a prominence of symptoms of poor stress tolerance and periods of low mood and hopelessness when exposed to stressors.[5]
[5]Ibid [29].
Dr Belshaw had further concluded that the respondent’s history was consistent with opiate dependence, amphetamine dependence, cannabis dependence and benzodiazepine dependence. But the criteria for a diagnosis of mental illnesses such as depression, severe anxiety and post-traumatic stress disorder were not established.
Finally, relevant to the sentencing disposition, Dr Belshaw had opined, as recorded by the judge, that the respondent would find imprisonment more burdensome than other individuals.
His Honour also referred in his sentencing remarks to the neuropsychological report of Dr Lauren Fitzpatrick of ARBIAS dated 21 June 2016. The gist of the report was, according to his Honour, that the respondent was in the low-average range for general intellectual ability, but had extremely low range overall verbal abilities. He had, however, ‘intact functioning across many cognitive domains and the absence of a disorder of impulse control [meant] that he [was] able to understand the wrongfulness of his actions, and to learn and remember rules and regulations.’[6]
[6]Ibid [35].
In further consideration of the respondent’s psychiatric and psychological state, his Honour referred to, but did not state the content of, the reports of the psychologist, Jeffrey Cummins, dated 28 October 2015 and the psychiatrist, Dr Kevin Ong, dated 11 April 2016.
The judge also accepted that the respondent would find imprisonment more burdensome than other individuals, that being a view expressed by the author of the Forensicare report.
Finally, in his analysis of circumstances running in the respondent’s favour, the judge said this:
I will in the circumstances moderate the application of both general and specific deterrence. Given the circumstances identified in the neuropsychological report to which I have referred, and as I have already noted, the High Court decision in the case of Bugmy. I also accept that you will find gaol more difficult than for the ordinary person.[7]
That was a summary of his Honour’s conclusions with respect to the place of general and specific deterrence and the burden of imprisonment upon the respondent in the sentencing synthesis.
[7]Ibid [38].
The judge referred also to matters which tended towards the imposition of a heavier sentence. There was the respondent’s prior criminal history, an extensive one, dating from 1997. Of particular relevance was a conviction recorded in the County Court on 8 September 2010. On that occasion, the respondent was sentenced for multiple offences to a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and six months. It was a sentence which the respondent ended up serving in full.
About the offending on that occasion, the judge said this:
[W]hat is of great concern are the facts which surround your commission of those offences. On 12 January 2010, you and a co-offender decided to steal a car at the Northland Shopping Centre. The victim, who was shopping there with her three young children went to the car, turned on the ignition to allow the air condition to commence working, and opened the doors to allow the children to get in. You and your co-offender then entered her vehicle and drove away with her children in the car. The victim attempted to hold onto her car whilst the driver accelerated away. She fell to the ground and injured herself.
You and your co-offender drove the car with the children still in it for a short period before you let them out. You apparently drove through the carpark, reaching speeds of up to 75 kilometres per hour. Needless to say, the children and their mother were absolutely hysterical and she was terribly concerned, as any mother would be, about what may happen to her children.[8]
[8]Ibid [41]-[42].
As to prospect of rehabilitation, the judge said this:
I am on balance satisfied that whilst one should never give up hope of your eventual rehabilitation, there is little before me currently to suggest that there is any great likelihood of that.[9]
[9]Ibid [44].
Respecting the protection of the community, the judge stated:
I must also of course, however, consider the question of the protection of members of the community from you, and bear in mind the likelihood of your reoffending, which I sadly find to be almost inevitable, given your background and the various matters which are set out in the very detailed reports…[10]
[10]Ibid [46].
Despite his Honour’s conclusion that there was little before him to suggest any great likelihood of rehabilitation, his Honour stated:
Nevertheless, in fixing an appropriate sentence, I have sought to maximise such chances of your rehabilitation as there may be, and in particular I propose to order a lengthy community corrections [sic] order, and notwithstanding you have breached all such orders before I trust in the circumstances that after this period of imprisonment, you will be sufficiently motivated to attend the various counselling sessions that will be made available to you.[11]
And:
This morning [the prosecutor] made further submissions with respect to the case of Grech and the provisions relating to pre-sentence detention and, in the circumstances I am grateful she has brought that to my attention and reminded me of the provisions. I find in the circumstances there are compelling reasons which will be clear to those who read these sentencing remarks. That is, in short, that the period of imprisonment that I propose to order in this case is a total of almost three years and seven months, which seems to me an appropriate term of imprisonment, in addition to which there will be a two year community corrections [sic] order.[12]
[11]Ibid [44].
[12]Ibid [48].
Having indicated his intention with respect to sentence, the judge asked counsel whether there was ‘a capacity’ to order an aggregate sentence. Counsel for the accused informed the judge that there was nothing to prevent it. The prosecutor made no submission. The judge then sentenced the respondent to the aggregate sentence noted at [2] above.
Ground 1
Although not pressed in oral argument, it was submitted in writing by the Director that the proper construction of s 289(1) of the Criminal Procedure Act 2009 (‘the CPA’) is that the Director is not obliged to establish that a sentence is manifestly inadequate in order to trigger the s 289(2) enquiry as to whether a different sentence should be imposed. The Director cited observations by this Court in Director of Public Prosecutions v Ghazi,[13] and relied also upon observations in Hudson v The Queen,[14] Director of Public Prosecutions v Oksuz[15] and Director of Public Prosecutions v Hudgson.[16] His submission contrasted certain remarks in Director of Public Prosecutions v Chatterton.[17]
[13](2015) 45 VR 852, 858-859 [30]-[33] (Redlich, Santamaria and Beach JJA).
[14](2010) 30 VR 610, 627-628 [66]-[68] (Ashley, Redlich and Harper JJA).
[15] (2015) 47 VR 731, 791 [257] n 163 (Croucher AJA).
[16][2016] VSCA 254 [118] (Weinberg, Whelan and Priest JJA) (‘Hudgson’).
[17][2014] VSCA 1 [80]-[82] (Weinberg, Whelan and Priest JJA).
In Hudgson,[18] the Court referred to there being
even now, some uncertainty as to whether a Director’s appeal, based solely upon specific error (and not manifest inadequacy), should ever result in an increase in a sentence imposed below.[19]
[18][2016] VSCA 254.
[19]Hudgson [2016] VSCA 254 [118].
In that case, as in other cases there cited, the issue did not require resolution. That is likewise the situation in this case if ground 1 is made out. Subject to consideration of the residual discretion, a different sentence should then be imposed.
Submissions for the Director
It was submitted for the Director in writing that —
(1) the circumstances giving rise to charge 4 (conduct endangering life) were very serious indeed. By his guilty plea, the respondent had accepted that significant risk of death was foreseen, and yet his offending had continued for a considerable period of time, the vehicle being driven in an erratic fashion in a manner aimed at dislodging the victim;
(2) at time of offending, the respondent had only been out of custody for about two months. His earlier imprisonment had involved another incident of motor vehicle theft where the victim had attempted to keep hold of the stolen vehicle and had fallen, and where her children were in the car at the time of theft. The respondent was not to be sentenced for that earlier offending, but it was very relevant to considerations of specific and general deterrence and community protection;
(3) the judge had found that there was little hope that the respondent would be rehabilitated. He had failed to comply with community based dispositions and had continued to re-offend;
(4) in the circumstances, the respondent’s deprived upbringing could only be given limited weight. The judge’s finding that general and specific deterrence should be moderated was generous. Any realistic connection between the respondent’s impaired mental functioning and the offending was tenuous at best. The finding of remorse was also a generous finding;
(5) it was difficult to find properly comparable sentencing dispositions with respect to the charge of conduct endangering life. Most of them had involved use of a firearm. But some indication of ‘range’ could be obtained from the decisions in Lima da Costa Jr v The Queen,[20] Zogheib v The Queen,[21] and Aggelidis v The Queen.[22]
[20](2016) 74 MVR 489.
[21][2015] VSCA 334.
[22][2014] VSCA 6.
Orally —
(1) counsel accepted that even if specific error as alleged by either or both of grounds 2 and 3 was sustained, it was still necessary to show that a different sentence should be passed. That directed attention to ground 1;
(2) counsel submitted that the circumstances of the case were objectively very serious. A combination sentence was simply unavailable. The respondent had been given many chances to rehabilitate, and had comprehensively failed to benefit from them. The case was not one in which the respondent’s psychiatric symptoms or psychological deficits had precluded his ability to make rational decisions;
(3) counsel spent some considerable time making submissions upon this question: if the Court concluded that there was an error in the sentence first imposed,[23] was the current form of s 44 of the Sentencing Act1991 (‘the Act’), or rather the form of that section at the time when the respondent was sentenced in the County Court, to be considered when deciding whether the Director had satisfied this Court that a different sentence should be imposed. The Director’s position was that the state of the legislation at time of this Court’s consideration was what was relevant.[24] Senior Counsel for the respondent joined issue on this matter. He submitted that this Court must consider whether a different sentence should be imposed, having regard to the state of the legislation at the time when the respondent was sentenced in the County Court. As will become apparent, interesting and all as the debate was, we do not consider it necessary to resolve the issue in order to determine the present appeal.
Submissions for the respondent
[23]See Criminal Procedure Act 2009 s 289(1)(a).
[24]The Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (operative from 20 March 2017) amended s 44 of the Act in a number of respects. In particular, it amended sub-s (1) by reducing the maximum period of imprisonment to which a CCO could be attached from two years or less to one year or less; and it amended sub-s (3) by deleting a reference to release on parole. The latter amendment was complemented by the insertion of s 11(2A) into the Act, which on one view does not make the reference to parole in s 44(1) any easier to understand. The relevant transitional provision, s 160(1) of the Act, states, in substance, that s 44 as amended applies to the sentencing of an offender on or after the commencement of the amendment, irrespective of when the offence was committed or the finding of guilt was made.
It was submitted for the respondent in writing, that —
(1) a stringent test is to be applied where the Director complains of manifest inadequacy of sentence. Such a ground is difficult to make good;
(2) the significant matters raised in mitigation had to be balanced against the respondent’s poor criminal history and poor compliance with rehabilitative orders in the past. So viewed, the sentence imposed was within range;
(3) the sentencing judge was at pains to point out that the sentence imposed was designed to target the causes of the respondent’s offending and to provide treatment and support, whilst also punishing the offender for what the judge clearly regarded as serious offending;
(4) the prosecutor had not taken up the judge’s invitation, in any meaningful way, to address submissions to the applicability of Bugmy;[25]
(5) complaints by the Director that several findings favourable to the respondent had been generous had misunderstood and misapplied his Honour’s sentencing remarks.
[25](2013) 249 CLR 571.
Analysis
In terms, and unequivocally, the judge stated that the period of imprisonment which he proposed to order was a total of almost three years and seven months. He stated that such period ‘seems to me an appropriate term of imprisonment, in addition to which there will be a two year [CCO]’.[26]
[26]Sentencing Remarks, above n 2, [48].
This disposition followed immediately upon completion of the resumed plea hearing. There, at the outset, his Honour stated that what he was contemplating was ‘a significant sentence with [a CCO] but … no order as to pre-sentence detention…’[27]
[27]Transcript of Proceedings, DPP v Rivette (County Court, CR 15-01205, Judge Parsons, 6 July 2016) 32, 32 (‘Plea Transcript’).
Then, having been told that there were 580 days of pre-sentence detention, his Honour said that he proposed to order 1 year and 350 days of imprisonment and added, ‘So that’ll be a total of almost three and a half years in custody, and that seems to me to be sufficient in the circumstances, in combination with the [CCO]’.[28]
[28]Ibid 32-3.
Now, this Court has said that a CCO has a punitive as well as a rehabilitative aspect.[29] But such an order is not an order of imprisonment. Indeed, the language of s 44 of the Act itself makes the distinction. See also the distinction drawn between imprisonment and a CCO by s 5(4) and s 5(4C) of the Act. As this Court said in Boulton v The Queen,[30] ‘imprisonment is uniquely punitive’. When a sentence of imprisonment is passed, the conventional position is that the prisoner may be required to spend every day of that sentence in imprisonment. The fixing of a non-parole period does not deny the truth of that position.
[29]Boulton v The Queen (2014) 46 VR 308 (‘Boulton’). See, inter alia, 331 [90]-[94] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[30]Ibid 333 [104].
We are well-cognisant of the humane objective which the judge sought to achieve when sentencing the respondent. His Honour was obviously motivated by a deep desire to ensure that the respondent had the best chance, albeit slim, for rehabilitation. But the length of the sentence of imprisonment which his Honour considered to be appropriate for the offending in which the respondent engaged, about three years and six months, was, in our opinion, grossly inadequate. That is so despite all the mitigating circumstances which the judge found to be established. It is no less so because his Honour also imposed a two-year CCO. For, see [37] above, such a disposition and imprisonment are different in kind.
Whilst the circumstances attending charges 1 and 2 were not exceptional, and the same might be said with respect to the circumstances attending charge 3, the offending the subject of charge 4 was, in our view, very serious indeed. It involved prolonged conduct with an evident risk to the victim. In the entire circumstances of this matter, a sentence on that charge alone which far exceeded three years and six months’ imprisonment was, in our opinion, necessary.
Further, the offending the subject of charges 1 and 2 was distinct from the offending the subject of charges 3 and 4; and it was offending by a man whose prior criminal history was replete with thefts. Born in 1980, he was 34 at time of offending and 36 at time of sentence, and he had an extensive criminal history from age 17.[31] Again, the offence the subject of charge 3 was not necessarily coterminous with the offending the subject of charge 4. The latter unquestionably lasted for the period during which the victim was driven about whilst clinging to the exterior of his vehicle. The theft was complete when the vehicle was first stolen.
[31]It included many theft offences (dealt with in 1998, 1988, 2000, 2001, 2003, 2008 and 2010), burglary (dealt with in 1998, 1999, 2000 and 2005), possession of a controlled weapon ( dealt with twice in 2005), drive whilst disqualified or whilst not the holder of a licence (dealt with twice in 2005 and again in 2008), failure to answer bail (on many occasions - 1998, 2000, 2001, 2004, 2005 and 2008), and non-compliance with non-imprisonment dispositions (dealt with in 1999 and 2005). The theft convictions included theft of motor vehicles dealt with in 2004, 2005 and 2008. There were also numerous drugs offences. The relative absence of convictions after 2010 reflected the fact that the respondent was imprisoned for more than four years in September 2010.
It follows from what we have said that, in our opinion, notwithstanding the matters called in aid by the respondent, notwithstanding the findings made by the judge in the respondent’s favour with respect to considerations of general deterrence, specific deterrence and burden of imprisonment, and notwithstanding the laudable objective of the judge in framing the sentence which he did, a sentence must have been framed which imposed a substantial period of imprisonment on charge 4, and which cumulated some parts of lesser sentences imposed on the other charges. The sentence ought also to have discretely dealt with the summary charges.
The judge was correct to conclude that, in this case, a sentence of imprisonment was necessary. On the view we take, however, the period of imprisonment which his Honour sought to achieve[32] by the sentence which he imposed was greatly inadequate. We consider that ground 1 has been made out. In so concluding, we have paid close regard to the warnings that a complaint of manifest inadequacy of sentence is very difficult to establish: Director of Public Prosecutions vKarazisis,[33] and, more generally, Director of Public Prosecutions v Zhuang.[34]
[32]We say ‘sought to achieve’ having regard to ground 2, which must next be considered.
[33](2010) 31 VR 634, 662-663 [127]-[128] (Ashley, Redlich and Weinberg JJA).
[34][2015] VSCA 96 [39]-[49] (Redlich, Priest and Beach JJA).
Ground 1 having been, in our opinion, made out, the remaining question is whether the Court should exercise its residual discretion not to interfere with the sentence. It was submitted for the respondent in writing that the discretion should be exercised favourably to the respondent because, it was said, the prosecutor had not given ‘meaningful assistance’ to the judge when his Honour made reference to the potential application of Bugmy.[35] In our opinion, that submission is unpersuasive. The matter was late-raised by the judge, and the furthest that his Honour went was to say that it seemed to him that the circumstances called for ‘moderation of the applicability of specific and general deterrence to a modest degree’.[36] Assuming for argument’s sake that the prosecutor’s response was deficient, it could not explain how the judge arrived at the manifestly inadequate sentence. In the entirety of the circumstances of the matter, we consider that the Court must intervene in order to correct this seriously inadequate sentence.
[35](2013) 249 CLR 571.
[36]Plea Transcript, above n 27, 40.
It follows from the conclusion just expressed that the potential issue discussed at [28]-[29] above does not arise. Nonetheless, we will give some consideration to grounds 2 and 3.
Ground 2
Submissions for the Director
The essence of the complaint raised by ground 2 is that the judge adopted a ploy, device or contrivance so as to enable the imposition of a sentence which guaranteed that the respondent would serve an (inadequate) period of three years and six months imprisonment, in addition to which a CCO could be, and was, attached.
In written submissions, the Director relied upon the decision of this Court in Director of Public Prosecutions v Grech.[37] Reliance was also placed upon observations by this Court in Director of Public Prosecutions v Basic,[38] (a decision delivered on the same day as Grech), Dordevic v The Queen,[39] and Hudgson.[40] We will refer to these authorities later.
[37][2016] VSCA 98 [55]-[56], [72] (Weinberg AP, Redlich and Ferguson JJA) (‘Grech’).
[38][2016] VSCA 99 [31]-[35] (Weinberg AP, Redlich and Ferguson JJA) (‘Basic’).
[39][2016] VSCA 166 [33] (Weinberg and Priest JJA) (‘Dordevic’).
[40][2016] VSCA 254.
The Director further submitted in writing that, even though it was said in Boulton[41] to be theoretically possible to impose a CCO where the head term of imprisonment was less than the maximum period specified in s 44(1) of the Act after declaration of pre-sentence detention, making a disposition in that form should ordinarily be avoided. But, in any event, this was not what the judge did.
[41](2014) 46 VR 308.
The Director acknowledged that the prosecutor should have gone further than she did when referring to Grech.[42] As the transcript shows, when his Honour said that he did not need to see this Court’s judgment in that case, which counsel had proffered, and asked why it was being cited, counsel said no more than that there needed to be compelling reasons before a court should decline to make a declaration of pre-sentence detention. It was submitted by the Director, nonetheless, that the entire circumstances were not such as to require the ground to fail in the exercise of the residual discretion.
[42][2016] VSCA 98.
The oral submissions for the Director did not travel beyond the matters which had been raised in writing.
Submissions for the respondent
It was submitted in writing for the respondent that the judge had not indulged in any ploy or contrivance. He had regarded three years and six months’ imprisonment together with a CCO as an appropriate overall disposition, for reasons which were valid and compelling. They justified his Honour’s decision not to make a declaration of pre-sentence detention.
It was further submitted that the Director had conceded that the prosecutor should have gone further in pressing Grech[43] upon the judge.
[43][2016] VSCA 98.
Again, it was submitted that the prosecutor did not squarely advance the proposition that there were no compelling reasons why a s 18(1) declaration should not have been made. The submissions referred to R v MacNeil-Brown,[44] touching upon a prosecutor’s duty to assist the court.
[44](2008) 20 VR 677, 683-4 (Maxwell P, Vincent and Redlich JJA).
Finally, in written submissions, it was contended for the respondent that there was no discernible ploy or contrivance by the judge in imposing the sentence which he did.
Orally, counsel submitted that the source of any error by the judge lay in the prosecutor’s submission, which was reflected by what his Honour said at [48] in his sentencing remarks, set out at [26] above.
Further, counsel submitted, if error was demonstrated then the residual discretion should be exercised against the Crown because of the prosecutor’s failure to discharge the Crown’s responsibility to adequately assist the court.
Counsel finally submitted that the matters which the judge had relied upon as ‘compelling reasons’ had not been said in any case dealing with ‘ploy’, ‘device’ or ‘contrivance’ to be precluded as legitimate considerations in the context of s 18(1) of the Act.
Analysis
As ss 11, 18 and 44(1) and (3) of the Act stood at the time when the judge imposed sentence, the legislation and the relevant authorities were to this effect:
(1)A sentence of imprisonment not exceeding two years could be combined with a CCO.
(2)A head sentence of two years’ imprisonment or more, but which reduced to less than two years to serve after deduction of pre-sentence detention, could be linked with a CCO.[45]
[45]Boulton (2014) 46 VR 308, 360-1 [233]-[238]. The statutory maximum which applied in that case was less than three months. But the principle was transposable when the statutory maximum was enlarged to not more than two years.
(3)Imposition of a sentence of two years’ imprisonment or more, even where time to be served was reduced below two years by reason of a declaration of pre-sentence detention, nonetheless required the fixing of a non-parole period.[46]
[46]Deng-Mabior v The Queen [2015] VSCA 179 [33]-[37] (Maxwell P, Weinberg and Kyrou JJA); Abdou v The Queen [2015] VSCA 359 [29]-[30] (Redlich and Beach JJA and Beale AJA).
(4)Imposition of a sentence of two years’ imprisonment or more, reduced by a declaration of pre-sentence detention to less than two years, accompanied by the fixing of a non-parole period and supplemented by the making of a CCO, was a course best avoided.[47]
[47]Difficulties were highlighted in Boulton (2014) 46 VR 308, 361 [238]. And see Hudgson [2016] VSCA 254 [32].
(5)Ploys and contrivances designed to bring a matter within s 44(1) had been identified by this Court. They included (a) imposing an inadequate sentence of imprisonment, just below the maximum period set by s 44(1), and attaching a CCO; (b) imposing a sentence of imprisonment of just less than the maximum period in order to avoid the requirement of fixing a non-parole period, and then attaching a CCO; and (c) imposing a sentence of imprisonment of just less than the maximum period, ordering that pre-sentence detention not be declared as a period of imprisonment already served, and attaching a CCO. By not declaring pre-sentence detention in such a case, the offender would in fact spent more time imprisoned than the statutory maximum set by s 44(1) and yet be apparently amenable to the making of a CCO.
(6)Ploys and contrivances of these kinds had been deprecated by this Court. So, in Grech,[48] Ferguson JA said this:
[48][2016] VSCA 98.
The discretion to ‘otherwise order’ under s 18(1) in relation to pre-sentence detention is not unfettered. If there is a ‘compelling’ reason to do so, then it may be appropriate not to give credit for the period of detention served before sentence. An example may be where additional pre-sentence detention has been served than would otherwise have been the case because of the offender’s own conduct.
The question is whether it is permissible to exercise the discretion under s 18(1) solely in order to overcome the perceived difficulties which would arise from a sentence which combines a prison term, parole and a CCO.[49]
[49][2016] VSCA 98 [55]-[56] (Ashley and Weinberg JJA agreeing) (citations omitted).
And:
In my opinion, it is not a proper exercise of the discretion under s 18(1) to achieve a result that circumvents the requirement to fix a non-parole period under s 11(1). I have reached this conclusion even though there may be good reasons why it would be preferable not to set a non-parole period when a CCO is ordered together with a term of imprisonment.[50]
[50]Ibid [72].
Again, in Basic,[51] the Court made these observations:
[51][2016] VSCA 99 [31]-[35] (Weinberg AP, Redlich and Ferguson JJA) (citations omitted).
This Court has, in recent times, seen a number of examples of trial judges having imposed sentences of two years, or just below, as a ‘ploy’ to enable a combination sentence of a term of imprisonment and a CCO to be ordered.
This approach is inconsistent with the correct application of sentencing principle. It can result in sentences, including orders for cumulation, which do not adequately reflect the gravity of the offending or the offender’s total criminality.
This Court has also seen other contrivances used in an apparent attempt to circumvent the limitation created by s 44(1) of the Sentencing Act 1991 (‘the Act’), and the difficulty of reconciling that provision with s 11 of the Act. Thus, trial judges have, on occasion, refused to declare pre-sentence detention (‘PSD’), or full PSD, in accordance with s 18 of the Act so that the end result will be a sentence involving more than two years’ actual incarceration, coupled with a CCO of some years’ duration.
This circumvention, through the use of s 18 of the Act, of the requirement that any sentence of two years or more be accompanied by the fixing of a non-parole period (save in the limited circumstances set out in s 11 of the Act) has been criticised by this Court in Director of Public Prosecutions v Grech. We endorse those criticisms.
Plainly, the CCO provisions are not working as intended. Putting to one side the question of policy addressed in Boulton v The Queen, these provisions are distorting the sentencing process and producing artificial results. We would urge that the legislature give serious consideration to amending the relevant sections so as to avoid this consequence.[52]
In Dordevic,[53] Weinberg and Priest JJA referred to there being a ‘spate’ of 23-month sentences, many of which were ‘problematic’.
Then, in Hudgson,[54] the Court (Weinberg, Whelan and Priest JJA) said this:
This Court has previously deprecated the practice of not declaring PSD in order to avoid the requirement, established by s 44(1), that a CCO not be combined with a sentence in excess of two years’ imprisonment.
In addition to sidestepping that requirement, the net effect of not declaring PSD was to make it appear that a sentence of less than two years’ imprisonment had been imposed, when in truth, that was not so. That enabled her Honour to avoid fixing a non-parole period, which, pursuant to s 11(1) of the Sentencing Act, she would otherwise have had to do. It would have made little sense to order a CCO, and at the same time fix a non-parole period, and there is authority which suggests that such a course should not be adopted.
The Director submitted that the failure to declare PSD amounted to a clear violation of proper sentencing practice. He submitted that, once specific error in that respect had been shown, it would follow that the entire sentencing exercise had miscarried. That in turn would require the respondent to be resentenced by this Court. In the course of that resentencing, the requirements of s 10(1) would have to be met.
The respondent acknowledged that the sentencing judge’s failure to declare PSD constituted specific error as the sentencing judge had contravened what this Court had said in Grech. He noted, however, by way of explanation, that this sentence had been imposed before Grech had been decided.
[52][2016] VSCA 99 [31]-[35].
[53][2016] VSCA 166 [33].
[54][2016] VSCA 254 [31]-[34] (citations omitted).
Against that background of authority, this may be said.
First, the judge imposed an aggregate sentence of 1 year and 350 days’ imprisonment — that is, about 2 weeks less than the then statutory maximum which permitted the making of a CCO. The sentence fitted neatly into the ‘spate’ of 23-month sentences to which this Court referred in Dordevic.[55]
[55][2016] VSCA 166 [33].
Second, by not declaring pre-sentence detention, the judge effectively ensured that the applicant would be confined for a period of about three and a half years, which his Honour regarded as the appropriate period of imprisonment. At the same time, by not squarely imposing a sentence of three and a half years’ imprisonment, his Honour avoided the obligation of fixing a non-parole period.
Third, had his Honour fixed a three and a half year period of imprisonment, fixed a non-parole period and made a declaration in respect of pre-sentence detention, time yet to be served when sentence was passed would have been less than two years. The making of a CCO would then have been permissible. Further, depending upon the length of the non-parole period, and whether the respondent was released at the earliest possible time, the respondent might actually have served less time in prison than was the consequence of the judge’s sentence. This possibility suggests that the judge was determined to ensure that the respondent did serve every day of the three and a half years’ imprisonment for which his sentence provided.
Fourth, if a declaration of pre-sentence detention is not to be made, it must be because there are compelling reasons.[56] In circumstances where his Honour considered that the necessary period of imprisonment was three and a half years, achievement of that outcome by (a) not fixing a non-parole period, and (b) not declaring pre-sentence detention, was an apparent contrivance. Further, on its face, sentencing the respondent to 1 year and 350 days’ imprisonment, and not declaring pre-sentence detention, ensured that the respondent served about 3 and a half years’ imprisonment without the ability to make a CCO being lost.
[56]See R v Fordham (Unreported, Court of Criminal Appeal, 1 March 1988) and R v Foster [2000] VSCA 187 [38] (Batt JA), [39] (Chernov JA).
Fifth, had an adequate sentence of imprisonment been imposed, an appropriate non-parole period been fixed, and a declaration of pre-sentence detention made, there is, in our opinion, no doubt that the statutory maximum set by s 44(1) of the Act would have been exceeded.
The argument that, for laudable reasons, the judge considered that a CCO would be in the interests of the respondent and the community — by facilitating such hope of the respondent’s rehabilitation as existed — could not justify the manufacture of a sentence which, in more than one way, offended relevant legislation.
In the event, if it was necessary to decide the matter, we would hold that the Director made out ground 2.
If that was the only ground upon which the Director succeeded, a question would have arisen (assuming that specific error makes relevant s 289(1)(b) of the CPA) whether the residual discretion ought to have been exercised against the Director by reason of the prosecutor’s failure to explain the true relevance of Grech[57] to the judge.
[57][2016] VSCA 98.
The general principle was stated by Brennan, Gallop and Deane JJ in R v Tait and Bartley,[58] where their Honours said:
The Crown has a duty to the Court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it.[59]
[58](1979) 24 ALR 473.
[59]Ibid 477 (emphasis added).
Relevant authorities respecting the duty of a prosecutor were considered by Phillips JA in Director of Public Prosecutions v Waack.[60] That case concerned an alleged concession by the trial prosecutor in respect of the appropriate sentence. It did not concern a failure to refer to ‘special principles of sentencing which might reasonably be thought to be relevant to the case in hand’.
[60](2001) 3 VR 194, 199-207 [13]-[31].
In more recent times, the High Court has restated a prosecutor’s duty, and the possible consequences of non-adherence. In Director of Public Prosecutions v Frewstal Pty Ltd,[61] Maxwell P adverted to that authority, in the context of consideration of the residual discretion in a Director’s appeal this way:
[61](2015) 47 VR 660, 675 [71]-[72] (‘Frewstal’).
It has long been accepted that, on a Crown appeal, an appellate court may decline to intervene to correct an error if the prosecutor on the plea failed to do what was reasonably required to assist the sentencing judge to avoid the error.[62] Recently, in CMB v Attorney General New South Wales,[63] the High Court reinforced this proposition in strong terms.
French CJ and Gageler J said:
The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an ‘appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error.’[64]
Kiefel, Bell and Keane JJ said:
The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion.[65]
[62]R v MacNeil-Brown (2008) 20 VR 677, 684 [20]; see DPP v Holder (2014) 41 VR 467, 474-5.
[63](2015) 256 CLR 346.
[64]Ibid 360 [38].
[65]Ibid 369 [64]. The original citation at n 16 is in error as to the page number (it should be 369), but not as to paragraph number.
Those observations are no less true because the High Court has also held that a prosecutor’s duty does not extend to ‘quoting’ a sentence range.[66]
[66]Barbaro v The Queen (2014) 253 CLR 58.
In the present instance, it may be said that the prosecutor’s failure to direct the judge to the true import of Grech,[67] and in doing so to advert to the need, if Grech[68] was given full application, to fix a non-parole period, fell considerably short of what was reasonably required. On the other hand, this Court had stated relevant principles in decisions both in 2015 and 2016. Further, problems respecting the interaction of ss 11, 18 and 44 of the Act had been a matter of concern for sentencing judges and this Court for years.
[67][2016] VSCA 98.
[68]Ibid.
If it was critical to determination of this appeal, we incline to the opinion that the prosecutor’s breach was not such, having regard to the entire circumstances of the matter, as would require the residual discretion to be exercised against the Director. But we refrain from so concluding.
Ground 3
For the reasons referred to at [28]-[29] above, consideration of this ground is also strictly unnecessary. But, similarly as in the case of ground 2, we should address it.
Submissions for the Director
It was submitted in writing for the Director that —
(1)the judge erred in imposing an aggregate sentence in this matter. There were a small number of charges, and the offending did not meet the language of s 9(1) of the Act;
(2)given the relatively few charges, the seriousness of the offence the subject of charge 4, the distinct and separate burglary and theft charges and the summary offences (including a weapon possession charge which had no connection with the other charges), the respondent should have been sentenced in the orthodox way. This would have ensured that orders for cumulation were made that properly reflected the total criminality and the impact of the respondent’s offending on separate victims;
(3)although the prosecutor had not taken issue with the imposition of an aggregate sentence, that course was only foreshadowed by the sentencing judge towards the end of his reasons for sentence, and the prosecutor’s acquiescence at that late stage ought not prevent the Director from submitting that the sentence ultimately imposed was not in conformity with the provisions of the Act, or with the judgment of this Court in Fitzpatrick v The Queen.[69]
[69][2016] VSCA 63.
Orally, counsel developed, but did not travel beyond, the written submissions which we have just noted.
Submissions for the respondent
The respondent submitted in writing that —
(1) the charges fell within s 9(1) of the CPA. They were temporally linked. Each event the subject of a charge was a necessary part of the prosecution narrative; and the offences were of a similar character in that they involved dishonesty or offending connected with and in furtherance of that dishonesty. They amounted to a continuing course of conduct;
(2)in those circumstances, it was open to the judge to impose an aggregate sentence;
(3)the prosecutor had remained silent when the judge asked both counsel whether this was an appropriate case for an aggregate sentence;
(4)the prosecutor’s failure to demur should, in any event mean, if ground 3 was made out, that the Court should refuse to intervene in the exercise of its residual discretion.
Orally, counsel drew attention to the identical language of s 9(1) of the Act and the language of provisions relating to joinder contained in the CPA — vide s 159(3)(c), sch 1 cl 5(1) and the definition of ‘related offences’ in s 3.
Counsel further submitted that the supposed error by the judge had no material effect upon sentence.
Again, counsel submitted, referring to Saxon v The Queen,[70] that the effect of s 9(4) of the Act is that a judge is no longer required to identify, at least in general terms, the constituent notional sentences and notional orders for concurrency and cumulation that went to make up the aggregate sentence as a whole.[71]
[70][2014] VSCA 296 (‘Saxon’).
[71]DPP v Felton (2007) 16 VR 214, 215 [2] (Buchanan JA), 229 [46] (Kellam AJA); R v Grossi (2008) 23 VR 500, 510 [38] (Redlich JA).
Analysis
First, it is correct to say that the language of s 9(1) of the Act, referring to ‘two or more offences which are founded on the same facts, or form, or are part of a series of offences of the same or a similar character’, is the language of the definition of ‘related offences’ in s 3 of the CPA, which, by reference to s 159(3)(c) and sch 1 cl 5(1) of that Act, raises the identical concept in the context of joinder of charges on an indictment.
Redlich JA made that point in R v Grossi[72] when he observed that:
The criteria for offences which may be included in an aggregate sentence, namely offences ‘which are founded on the same facts, or form, or are part of, a series of offences of a same or a similar character’[73] is identical to the criteria relevant to a determination of when charges for any offence may be joined in the same presentment[74] and those offences exempted under s 9(1A) of the Act. Thus multiple offences on the same presentment will, by definition, be offences for which the Court may impose an aggregate sentence. But an aggregate sentence will not necessarily be appropriate where the presentment contains only a small number of counts,[75] or counts which vary significantly in their seriousness or the manner in which the offences were committed.[76]
[72](2008) 23 VR 500.
[73]Section (9)(1) of the Act.
[74]Rule 2 of the Presentment Rules, Crimes Act 1958 — Sch 6.
[75]DPP v Felton (2007) 16 VR 214, 215 [2] (Buchanan JA), 220 [19] (Kellam AJA).
[76]R vGrossi (2008) 23 VR 500, 510 [39].
Second, we agree with the submission of respondent’s counsel that the charges on the indictment were properly joined.[77] For that reason, they fell within the description of offences which, by s 9(1) of the Act, could be the subject of exercise of a discretion to impose an aggregate sentence. Further, the summary charge of unlicensed driving equally fell within the description of an offence which, together with the offences charged on the indictment, fell within the definition in s 9(1). The summary charge relating to possession of a weapon is another matter. Priest JA pointed out in argument that the judge below was able to deal with that matter by reason of s 243 of the CPA. It does not follow, however, that the offence was able to be dealt with by way of aggregate sentence under s 9(1) of the Act. That question was not the subject of specific submissions.
[77]The phrase ‘offences which are founded on the same facts’ was explained by the English Court of Appeal in R vBarrell and Wilson (1979) 69 Cr App R 250 where Shaw LJ, in the context of what was permissible joinder, stated that:
Third, the respondent’s submission with respect to the operation of s 9(4) of the Act was also correct. That was the burden of the passages in Saxon[78] to which counsel referred.
[78][2014] VSCA 296.
Fourth, s 9(1) is permissive in character. A judge may impose an aggregate sentence if the pre-conditions for imposing such a sentence are present. In the ordinary course, an exercise of judicial discretion can only be impugned successfully in reliance upon principles stated in House v The King.[79]
[79](1936) 55 CLR 499, 504-5 (Dixon, Evert and McTiernan JJ) (‘House’).
Fifth, to say that a statutory discretion is unfettered does not, however, mean that it is in substance unreviewable. In Frewstal,[80] Maxwell P said this:
As Legoe J in R v Nixon[81] explained in respect of the South Australian equivalent, the power to order an aggregate sentence must be exercised consistently with existing sentencing law and principles:
The section creates a statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package. It is a discretion which is unfettered. At the same time, it is not a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence. In my opinion it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice. It seems to me that the section is one that can be used by a Court of Criminal Appeal where the multiple sentences are properly concurrent in accordance with the above principles.[82]
[80](2015) 47 VR 660. The case concerned s 51 of the Act, not s 9. Nothing turns on it. His Honour dissented in part from the reasoning of Priest and Kaye JJA, but, as a statement of principle, what his Honour said was unexceptional.
[81](1993) 66 A Crim R 83, 85–6.
[82](2015) 47 VR 660, 670-1 [45].
Those observations by Legoe J had earlier been the subject of approval in Director of Public Prosecutions v Felton.[83] The later amendment of s 9 of the Act did not impugn his Honour’s opinion. Maxwell P made this clear, by necessary implication, in Frewstal.[84]
[83](2007) 16 VR 214, 229 [44].
[84](2015) 47 VR 660.
Sixth, this Court has repeatedly stated that imposition of an aggregate sentence is inappropriate where a presentment contains only a small number of counts, or counts which vary significantly in their seriousness, or the manner in which the offences were committed.[85] So, in Frewstal,[86] Maxwell P said this:
The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a “more flexible and pragmatic“ way of “reflecting all of the offender’s conduct“.[87]
[85]Paraphrasing R v Grossi (2008) 23 VR 500, 510 [39] (Redlich JA).
[86](2015) 47 VR 660.
[87]Ibid 670 [44].
The same point was made by Weinberg AP, Priest and Beach JJA in Fitzpatrick v The Queen,[88] and by Redlich and Santamaria JJA in Kerapa v The Queen.[89]
[88][2016] VSCA 63 [48].
[89][2017] VSCA 56 [12].
Seventh, the circumstances which are inappropriate for the imposition of an aggregate sentence have been sufficiently delineated to permit their application by trial judges and magistrates They should be understood as a principled exposition of circumstances in which an exercise of discretion under s 9(1) to impose an aggregate sentence would fall into error. That point, in our opinion, was engaged in this case. There were relatively few charges, they were distinct in character, and one of them involved much more serious offending than the others. If it was necessary to express a conclusion about ground 3, we would hold that the imposition of an aggregate sentence infringed House[90] because the judge acted upon a wrong principle.
[90](1936) 55 CLR 499, 504-5 (Dixon, Evert and McTiernan JJ).
Eighth, assume that it was necessary to make a finding, in order to dispose of this appeal, as to whether the imposition of an aggregate sentence constituted specific error. Then assume a finding of specific error. Next assume that such error alone would enable the Court to consider whether a different sentence should be imposed. A question would arise, in the context of s 289(1)(b) of the CPA, whether in the exercise of its residual discretion the Court should nonetheless refuse to impose a different sentence by reason of the prosecutor’s assent to the course which the judge adopted.
The way in which the matter arose was far from satisfactory. Having announced that he intended to impose a period of imprisonment of almost three years and seven months, to make no order with respect to pre-sentence detention, and in addition to impose a two-year CCO, the judge asked:
Just one thing, with respect to the particular sentences, is there a capacity to order an aggregate sentence, or do some of the sentences require individual treatment?[91]
[91]Sentencing Remarks, above n 2, [49].
Counsel for the respondent stated that he ‘wouldn’t see that your Honour would be prevented from imposing an aggregate sentence’. The prosecutor said nothing. Immediately, his Honour said:
All right. So I think in the circumstances, what I propose is an aggregate sentence with respect to all matters, and that will be for a period of one year and 350 days’ imprisonment. There will also be an order for a two year community corrections [sic] order, with all the conditions as recommended by the author of Exhibit 8 and that, and that will of course be with conviction’.[92]
[92]Ibid [53].
Obviously, by reference to authority, the prosecutor could, and should, have submitted that it would be an error to impose an aggregate sentence. A wise course might have been for the prosecutor to seek time to consider the matter. On the other hand, things moved very quickly indeed. We are inclined to the view, nonetheless, that the prosecutor’s silence — even to seek time to consider the matter — may have led the judge into error. On the other hand, the sentence which the judge in fact imposed was so erroneous, even having regard to the form in which it was expressed, that we would have been hesitant to conclude that the residual discretion should have been exercised in favour of the respondent.
Re-sentence
The Director having succeeded, in our opinion, on ground 1, we propose that the appeal be allowed, the sentence below be set aside, and the applicant be re-sentenced as follows: on charge 1, to one year’s imprisonment; on charge 2, to one year’s imprisonment; on charge 3, to one year and six months’ imprisonment; on charge 4, to four years and nine months’ imprisonment; on the summary charge of unlicensed driving, to two months’ imprisonment; and on the summary charge relating to possession of a prohibited weapon, three months’ imprisonment.
Taking the sentence on charge 4 as the base sentence, we would cumulate six months of the sentence on charge 1 and six months of the sentence on charge 3 on each other and on the base sentence. The total effective sentence would be five years and nine months’ imprisonment. We would fix a non-parole period of four years’ imprisonment. We would confirm the ancillary orders made below. We would make an appropriate declaration with respect to pre-sentence detention and, for the purposes of s 6AAA of the Act, we would indicate that, if the respondent had not pleaded guilty, we would have imposed a total effective sentence of eight years’ imprisonment and fixed a five years and nine months non-parole period.
CROUCHER AJA:
I have had the advantage of reading in draft the joint reasons for judgment of Ashley and Priest JJA.
As their Honours have said, the judge, for laudable reasons, considered that a prison sentence combined with a CCO would be in the interests of the respondent and the community. This was because a sentence of this type and order might facilitate such hope of the respondent’s rehabilitation as existed. Sadly, it seems often to be forgotten or ignored by some that, in the vast majority of cases that come before the courts, it is only through such rehabilitation that the community might be protected in the longer run.
My initial thoughts were that this sentence should stand. After all, the orders made by the judge meant that the respondent would spend three-and-a-half years in prison — a not insignificant period — before being released on a CCO for two years. That seemed, at first blush, to be a humane and wise way in which to balance all competing considerations.
After further consideration, however, I have been persuaded to a different view. Allowing fully for all matters in mitigation, the respondent’s offending — especially his offence of reckless conduct endangering life — was just too serious to warrant an aggregate prison sentence of the order imposed, even when combined with a two-year CCO.
Thus, for the reasons given by Ashley and Priest JJA in respect of Ground 1, I agree that the sentence imposed in this case is manifestly inadequate. I also agree that there is no occasion to exercise the residual discretion to decline to interfere with the sentence and that the respondent should be resentenced in the manner proposed by their Honours.
In view of those conclusions, I consider it unnecessary to express any views on the matters raised by Grounds 2 and 3 or to determine those grounds.
The test is whether the charges have a common factual origin. If the charge described by counsel as a subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say that for the purposes of [the joinder rule] that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.
There, to give his Lordship’s dictum meaning, the applicants were charged with offences arising out of assaults at a discotheque. Months later, one of the applicants visited the manager of the discotheque and offered the latter money to modify his evidence about what had earlier occurred. A charge of attempting to pervert the course of justice was joined on an indictment which alleged the assaults. Thus was reference made to a ‘subsidiary’ charge and the ‘primary’ charge.
Barrell and Wilson is still cited by the Crown Prosecution Service of England and Wales under the heading ‘Drafting the indictment’.
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