DPP v Salih
[2016] VSCA 107
•13 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0003
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DEREN SALIH | Respondent |
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| JUDGES: | ASHLEY, COGHLAN and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 April 2016 |
| DATE OF JUDGMENT: | 13 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 107 |
| JUDGMENT APPEALED FROM: | DPP v Salih [2015] VCC 1932 (Judge Gaynor) |
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CRIMINAL LAW – Sentence – Aggravated burglary – False imprisonment – Appeal by Director of Public Prosecutions – Sentence of Community Correction Order for five years – Conditions imposed – Sentence manifestly inadequate – Residual discretion not exercised – Appeal allowed – Respondent re-sentenced to total effective sentence of four year’s imprisonment – Non-parole period two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr M G O’Connell SC with Mr S Norton | Stary Norton Halphen |
ASHLEY JA:
I agree in the reasons of Coghlan JA and with the orders which his Honour proposed.
COGHLAN JA:
On 23 October 2015, Deren Salih, the respondent, was convicted in the County Court of one charge of aggravated burglary and four charges of false imprisonment. He was sentenced on 16 December 2015 as follows:
Charge on Indictment Offence Maximum Sentence 1 Aggravated Burglary [Crimes Act1958 s 77(1)] 25 years [Crimes Act1958 s 77(2)] Community Correction Order for 5 years with conditions to complete 500 hours unpaid community work in addition to supervision, assessment and treatment for drug abuse, mental health assessment and treatment and judicial monitoring 2, 3, 4 & 5 False Imprisonment [Common Law] 10 years [Crimes Act 1958s 320] Total Effective Sentence: Community Correction Order for 5 years Non-Parole Period: N/A Pre-sentence Detention Declared: Nil
The Director of Public Prosecutions (‘the Director’) now appeals against the sentence imposed upon the respondent. By notice dated 13 January 2016, he relies upon the following ground:
1. Ground 1 — The sentence imposed is manifestly inadequate.
Particulars:
In sentencing the respondent, the learned sentencing Judge —
(a)Failed to have sufficient regard to the maximum penalty prescribed for the offence;
(b)Failed to give sufficient weight to the nature and objective gravity of the offending;
(c)Failed to give sufficient weight to the impact of the offending upon the victims;
(d)Failed to give sufficient weight to the aggravating features of the offending, namely:
a.the use of a weapon, a firearm
b.the victims being children
c.offending in company
(e)Failed to have regard to current sentencing practices for the offence of aggravated burglary contrary to s 77 of the Crimes Act 1958;
(f)Gave too much weight to factors in mitigation, namely delay and prospects of rehabilitation; and
(g)Failed to give sufficient weight to the sentencing purposes of protection of the community, general and specific deterrence and punishment and failed to manifest denunciation of the offending.
The ground of appeal is particularised in some detail but, as the matter was argued for the Director, it really comes down to these two considerations. First, notwithstanding the matters in mitigation, the case was simply too serious to warrant the sentence imposed. An immediate custodial sentence was required. Second, the sentencing judge failed to give proper regard to current sentencing practices.
The offending was particularly serious, as can be seen from what is set out in the Registrar’s Neutral Summary:
On 15 April 2009 the respondent and an unknown co-offender attended a house at 5 Ferguson Street in Maribyrnong. Living at the house at that time was Chung Kim Vu, her husband, Tuan Van Le, and their three sons Richard, Simon and Ryan. At 6am on that day, Mr Le left for work. As he was leaving he observed a yellow, black and white motorbike in the rear laneway behind the house.
At approximately 7.10am, the respondent and his co-offender, both having covered their faces and wearing gloves, smashed a side window of the house, climbed in and stepped down onto a barbeque beneath the window. At the time of entry the respondent was carrying a firearm (Charge 1 – Aggravated Burglary).
The pair then kicked in a locked connecting internal door, which caused the door lock to break and considerable damage to the door panels. Once inside the house, the respondent and his co-offender went upstairs to where Mrs Vu and her three sons were sleeping in their respective bedrooms. Richard had been awoken by the banging and hid himself behind a door, arming himself with a metal pole he had in his room. The respondent and his co-offender entered another bedroom, where Ryan and Simon were sleeping, and made the two of them lie down and face the wall (Charges 4 & 5 – False Imprisonment).
The respondent and his co-offender then stood at Richard’s bedroom door, where one of them pointed a firearm at him. Richard was made to go into the room where his brothers were. Once inside Richard was also made to lie on his back, facing the wall, along with his brothers (Charge 3 – False Imprisonment).
The respondent and his co-offender then went to Mrs Vu’s bedroom. She woke and began screaming. She was told to ‘shut up and sit down’. She knelt then sat down, and one of the pair took her Blackberry phone from her, grabbed her by the arm and dragged her into the same room as her sons (Charge 2 – False Imprisonment).
Mrs Vu laid down next to her children. The respondent and his co-offender shut the door. Soon after, the pair returned to the room where the family members were present and screamed at Mrs Vu ‘where’s the money?’ multiple times. Richard told his mother to hand over the money, as they had a gun. Mrs Vu got up, walked the respondent and his co-offender into her bedroom and pointed to a dresser door where she had money. She knelt and cried, telling them that she had no more money. The respondent and his co-offender stole approximately $6000 cash from a black purse Mrs Vu kept in the dresser door. The respondent and his co-offender then walked Mrs Vu back to the bedroom where her sons were and closed the door. The family waited in the room for approximately five minutes until they could hear nothing from the bottom floor. However, upon Richard opening the door he could still hear the respondent and his co-offender in the house, so he stepped back into the room. The family then stayed in the room for three more minutes, until they heard the sound of a vehicle screeching and taking off at the back of their house.
Mrs Vu went downstairs, where she saw the damage to the internal door, and in the garage saw the broken window. She called 000 and police arrived. Stolen from the house was $6000 cash, a Blackberry mobile handset, a Nintendo DS, a Game Boy and two men’s gold rings.
Ultimately when police attended and processed the scene they discovered blood on the broken glass window at the entry point to the garage door, on the dresser, and in the bedside tables in Mrs Vu’s bedroom. They took samples from these sites which were later analysed and compared with a DNA sample provided by the respondent when he was picked up for offending at a later date. Analysis concluded that there was extremely strong support for the proposition that the respondent provided the DNA discovered at the scene.
The respondent was arrested for this offending in March 2013.
The respondent pleaded not guilty. The trial was conducted upon a limited issue — that is, whether certain DNA evidence implicated the respondent in the offending.
The respondent having been found guilty and convicted, it was submitted on his behalf on the plea that the offending occurred when he was heavily addicted to the drug ‘ice’. His addiction, said to be a form of self-medication, was such that he had no recollection of the offending. That was the reason why the trial was conducted on a restricted basis – in order that the DNA evidence could be properly tested.
It was further submitted for the respondent below that there had been delay in bringing the instant offending before the courts. In the period of delay, the respondent had turned his life around. He was dealing effectively with his drug addiction.
In order to put the submissions for the respondent on the plea into perspective (I have thus far only described them in general terms), it is necessary to consider the nature and timing of other offences which he committed. On 23 April 2009 — that is, only eight days after the instant offending — the respondent was arrested in connection with a reasonably elaborate drug operation. A cannabis crop and a methylamphetamine laboratory set up in an underground bunker were discovered by the police at sites alleged to have been exclusively used by the respondent at his parents’ farm. On 19 June 2012, on charges of trafficking in a drug of dependence, cultivating a narcotic plant (cannabis) and theft, the respondent was sentenced to a total of two years and nine months’ imprisonment, 24 months of which was suspended for two years. It was said for the respondent on the plea that ‘[i]t was accepted that the entire setup was about [the respondent] attempting to fuel his own habit’. But the sentencing judge did not accept that this was so.
There was other offending too. On 13 September 2011, the respondent was convicted of burglary, theft and going equipped to steal. The matter was dealt with at the Sunshine Magistrates’ Court. The respondent was released on a Community Based Order for three months, and ordered to perform 50 hours unpaid community work. It was said on the respondent’s behalf on the plea in the present case that this offending was ‘the classic hotel room scenario where items were taken for the purposes of fuelling drug addiction’. The respondent’s counsel stated that his client ‘struggles to remember the full details of it’. What is clear is that the respondent breached the Community Based Order, and was dealt with for the breach on 26 October 2012 — that is, whilst he was undergoing the sentence imposed in June that year.[1]
[1]It appears, however, that the breach proceedings were commenced before imposition of the June 2012 sentence.
A third matter should be mentioned. In June 2013, the respondent was dealt with on a charge of intentionally causing injury at the Sunshine Magistrates’ Court. Without conviction, the matter was adjourned for a 12 month period.
For completeness, I should mention that the respondent faces a number of dishonesty charges, and what are said to be minor drugs charges, allegedly involving conduct in May 2014. They are to be contested. If the respondent was to be convicted of any of those charges, he would be in breach of the suspended sentence. But that is a matter for another court on another day.
None of the first three matters which I have just noted were prior convictions. The fourth is not a conviction at all, and may be put completely to one side. But the first three matters were relevant to the exercise of the sentencing discretion in the present case because they bore upon the submission for the respondent that he had turned his life around in the period between the instant offending, in April 2009, and his trial in October 2015.
Pausing there, there appears to be no explanation as to why the 2009 drug offences were not dealt with until June 2012. But what is clear is that the delay in dealing with those offences explains why the respondent was not charged with the instant offences until March 2013. The most important, if not the sole evidence, against the respondent was that his DNA had been found in blood left at three different places at the crime scene. Until the respondent was convicted in June 2012 and an order was made for the provision of a sample for the purpose of his DNA being placed on a data bank, the authorities did not have the evidence which proved crucial to his conviction on the instant charges. Armed with that evidence, the respondent was in fact charged soon after his release from custody in respect of the sentence imposed in June 2012, that is, during the period of the two years suspended sentence.
I have already briefly sketched the submissions advanced for the respondent on the plea. I need to expand upon what was submitted. Counsel informed the judge that the respondent, a man born on 29 May 1980, and so aged 35 at time of sentence, came from a stable family background. He had attended school to Year 11, had done 12 months of an electrical apprenticeship, and had then been employed laying cables for a telecommunications company for five years. But that was the end of his employment history up to the time of sentence. Thus, he had ceased work at age 23 or 24, and had not been in paid employment for ten years or so as at December 2015. On the other hand, there was evidence that in recent times he had provided significant assistance on the family farm.
Further, according to his counsel, the respondent had fallen into drug use. It had begun as recreational use, but then became a form of self-medication for attention deficit hyperactivity disorder (ADHD), which had first been diagnosed in 2010. The respondent’s drug addiction continued over a period of five to ten years. Nonetheless, the respondent had established a relationship and fathered two children. The second child was about three months old when the respondent and his long-time partner separated. That was before he was sentenced to imprisonment in June 2012. His partner could not live with his use of ‘ice’.
After his release from prison, his counsel submitted, the respondent’s road had been ‘a little bit rocky’. But whilst he had relapsed into drug use for a period — it was connected with him associating with persons he had met in prison — he had begun attending Professor Currie at the Victoria Rehabilitation Centre in February 2015, at first weekly and then fortnightly. He had been put on appropriate medication. In the last ten to 12 months before the plea hearing, according to evidence given by his brother, the respondent had been ‘very good’, his brother was ‘very impressed with him’. He had re-engaged with his family and his children.
The high point of the submissions on the plea was that, since February 2015, the respondent had really turned his life around. He had done so with the assistance of Professor Currie. The professor provided a very favourable letter about the respondent, in which he said:
After detailed medical and psychological assessment, it would appear that Mr Salih’s methamphetamine dependence has arisen in large part due to Mr Salih’s ‘self-medication’ with this drug to reduce the symptoms of long standing Attention Deficit Disorder which he has had, untreated, since childhood. This has led to significant impairment of education, and of vocational, social and interpersonal skills.
With an intensive medical treatment program, Mr Salih has made quite dramatic progress in reducing and ceasing methamphetamine use and in improving his mental health status which was previously significantly impaired. This has included regular outpatient clinic visits for medical assessment, psychological counselling and specific medications aimed at reducing methamphetamine craving and withdrawal (baclofen, lyrica) depression (agomelatine) and improving cognitive function impaired by attention deficit disorder (strattera, vyvanse).
Mr Salih has continued to attend diligently for treatment and he has been fully compliant with all the requirements of our programme. We have been impressed with the great effort that he has made towards his own rehabilitation. To function and perform to his full capacity Mr Salih will require long term ongoing medical treatment, with access to the medications currently prescribed or variations thereof. We would be pleased to contribute to this if the opportunity arises.
Counsel also relied upon the report of Carla Lechner, psychologist, dated 24 November 2015. Miss Lechner said, under the heading ‘Summary and Opinion’:
1.Mr Salih, aged 35 years, is before the Court awaiting sentence after being found guilty at trial of aggravated burglary and false imprisonment, offences that occurred in April 2009 in the company of an unidentified co-offender. The facts of this case are known to the Court, with this report focussing on Mr Salih from a clinical perspective. I note that at the time of these offences he had not previously been in trouble but that he has a subsequent history. Mr Salih presents with symptoms of ADHD, Major Depression and Stimulant Use Disorder (all DSM 5 diagnoses), the latter in remission. He was not diagnosed with ADHD until about four years ago although his history indicates that he has suffered severe attentional problems since childhood, this undermining his academic progress, vocational and social development and behavioural regulation. He used drugs, primarily Ice, to ‘self-medicate’ against low mood and high levels of anxiety associated with his strong sense of ‘being different’. Mr Salih commenced appropriate pharmacotherapy about 3–4 years ago with an attendant decline in his illicit drug use. He reports that he has no memory of the above offences, cannot recall being at the premises and does not know how his DNA was found there. He admits that he was using drugs heavily at the time but finds this type of behaviour out–of–character with his usual functioning. He finds the offending disgusting and has empathy for the victims. Mr Salih was already on the path of rehabilitation before being incarcerated. He needs ongoing medical and psychological support in custody and upon his release back into the community.
2.The second of three sons, Mr Salih was raised by European parents in an intact but strict family environment. He struggled with school from the outset in terms of his learning (he repeated grade one), social interactions and behavioural regulation. He was bullied on account of his appearance and always felt ‘different’ from other students. He left school in Year 11, commenced but was not able to complete an apprenticeship and worked in a factory for two years. He found that his anxiety level was increasing, that he felt ‘unsafe’ outside of the home and commenced abusing drugs. This was initially on a ‘social’ basis but gradually increased to a daily habit of 1.7 grams once a day. This had a further adverse impact on his ability to work, his mood state and his family relationships. After the breakdown of his long-term relationship he sought professional assistance in the setting of depressed mood. He has remained involved with treatment services since that time.
3.At interview Mr Salih was noticeably anxious. He spoke rapidly and often started but did not complete sentences. He stated that he has immense trouble with filtering information. As a consequence his mind is always busy, he is forgetful and feels overwhelmed much of the time. Due to his attentional problems, he has difficulty with processing, encoding and retaining information. He becomes frustrated, anxious and angry. Mr Salih is able to identify some triggers to his negative feelings but often feels depressed or anxious for ‘no reason’. He has been especially low in mood since the break-up of his long-term relationship. He is currently evidencing symptoms of Major Depression (DSM 5) with a score in the ‘extreme’ range on the Beck Depression Inventory. His history suggests that he has suffered a mood disorder for much of his life. He also scored in the ‘severe’ range on the Beck Anxiety Inventory; his anxiety has escalated in prison on account of the tense environment and his lack of access to medication.
4.As previously mentioned, Mr Salih has no recollection of attending the premises involved in the above offence or of the offence itself. He is not able to explain the presence of his DNA at the property. He views the offences as abhorrent and expressed empathy for the victims.
I pause to note that Ms Lechner’s observation that the respondent has ‘remained involved with treatment services’ since the breakdown of his relationship was at odds with evidence adduced on the plea.
Each of Professor Currie and Ms Lechner related the respondent’s drug use to self-medication for ADHD. That fitted in with remarks made by a County Court judge when sentencing the respondent in June 2012. Her Honour said:
In February 2010 your GP referred you to Dr Grech, psychologist, for an opinion on your mental state and in his report of 16 January 2010 Dr Grech assessed you as presenting with a history of obvious and persuasive signs of adult attention deficit hyperactive disorder, ADHD.
Dr Grech referred you to a psychiatrist, Dr Farnbach, who in his report dated 26 February 2012 was of the opinion that he had enough information to make a diagnosis of severe attention hyperactivity deficit disorder. However in his evidence at your plea hearing Dr Farnbach diagnosed you in essence as “probably, but not definitely suffering from ADHD and depression”. In his experience some people with this disorder found that speed relieved their symptoms and he accepted your claim that you had been self-medicating by using the MDMA that you had manufactured.[2]
[2]DPP v Salih [2012] VCC 1128 [16]–[17].
Although, on the plea, respondent’s counsel did not rely upon Verdins,[3] he did place emphasis on the self-medication explanation for the respondent’s drug addiction.
[3]R v Verdins (2007) 16 VR 269.
As I have said earlier, counsel relied upon delay and upon rehabilitation in the period of delay. In the course of the plea, the following exchange occurred between the sentencing judge and counsel for the respondent:
COUNSEL:It’s really a case where the reports indicate he had ADHD. He sought to treat that and that’s what led him into — well in using drugs he’s found a treatment for it and that’s what led him into the current predicament.
HER HONOUR: It’s a bit like the old — what’s the name of that wretched case?
COUNSEL:Lacen?
HER HONOUR: No, no, no, it was an old suspended sentence case. It was about someone like your client. I mean you’ve very much got delay on your side as well. It’s just about the interest of the community being bound up with the rehabilitation of the offender.
COUNSEL:That’s where I’m going with this. It’d be great if I had a case.
HER HONOUR: Of course. How surprising.
COUNSEL:Yes.
HER HONOUR: It’s an old case — I wish I could remember it — I must have a look at it. But it talks about that point in time and specifically recognises it. In that case it allowed for the imposition of a suspended sentence. I will know it as soon as I hear it but I can’t remember it now. So you’re saying to me essentially, I’m assuming, that your client — this matter is now seven years old, your client at the time was in the grip of a very severe and long–standing ice addiction, ultimately it came to a head when he was gaoled, he’s come out, there was a bit of fall–off but in fact he’s now full steam ahead and please don’t interrupt it.
COUNSEL:Precisely, Your Honour.
HER HONOUR: Very well.
COUNSEL:Much is said in the written submissions about the drug use. I think Your Honour’s right, it’s a periphery issue. Where my submissions are directed to is that rehab, which is — it appears from the material that we can provide the court and the evidence given, we can attribute his offending to something. He’s seeking to change that and he’s taken active steps to - - -
HER HONOUR: Can I say this to you: you wouldn’t have a prayer with this unless this offence occurred in 2009. It’s a pretty serious example - - -
COUNSEL:Unquestionably. And I haven’t spoken of the offending, all I can say is it’s serious. I couldn’t demur from it. The only positive - - -
HER HONOUR: It’s very serious.
COUNSEL:Yes. The only positive I can draw from it is that the trial was run in a manner - - -
HER HONOUR: No, no, I agree with that, it was a one-issue trial. I’ve got no problem with that.
COUNSEL:And we spared everybody at the committal stage as well.
HER HONOUR: Yes, all right. Would you mind if I just chop you off at this point, [COUNSEL] …[4]
[4]Plea Transcript, DPP v Salih, (Unreported, County Court of Victoria, Judge Gaynor, 16 December 2015), 37–8 (‘Plea Transcript’).
The prosecutor submitted below that delay did not run in the respondent’s favour in the period between April 2009 and his being charged in early 2013. Simply, he had not been apprehended. Moreover, although he could call in aid the delay between being charged in 2013 and trial in 2015, the evidence only supported rehabilitation in the period beginning in February 2015.
When the prosecutor submitted that the respondent’s offending warranted ‘an immediate term of imprisonment and not insignificant’, the judge replied:
I can absolutely understand why the Crown is doing that, and I have some sympathy for it, but in terms of what I think is going to be best community-wise I don’t know that – and that’s only on that basis only – I don’t know that I agree. I’m thinking more in terms of the flexibility the sentencing judge now has in relation to a community corrections order that can perhaps take into account the particular issues of a particular case.
The judge told the respondent that she proposed, subject to assessment of his suitability, to impose a five year community correction order. She added that, ‘Normally someone who’s done what you did comes to this court and they’re looking at five with a three’, to which the respondent replied, ‘I understand’.
In the event, armed with the assessment, the judge sentenced the respondent to the five year community correction order which she had foreshadowed. She imposed the conditions to which I have referred at [1] above.
In her sentencing remarks, the sentencing judge said:
Had this offending not occurred in 2009 I would not hesitate to have immediately jailed you. I am, as I hope I have made perfectly clear, incredibly unimpressed; both with your offending, your behaviour on your release, and the fact that even though it is to be expected that a long term ice addict is going to fall off the wagon, you did it in such a juvenile fashion; that is, by forming friendships in gaol which were entirely unhelpful to you on your release. It is not very nice, I would have thought, for your parents with whom you live to have these people hanging around their property either, but that is by the by.
In any event, when it comes to sentencing a court must take into account the ultimate well-being of the community. My concern is that you are now on quite a sophisticated program involving a wide variety of medication. You are responding properly and it is my concern that if I gaol you this will be fatally undermined, and if I was to proceed to jailing you it is my view I would have to do it in terms which would mean I would have to sentence you to a term of imprisonment that would involve a period of parole, and it just seems to me to be entirely unhelpful.[5]
[5]DPP v Salih [2015] VCC 1932) [23]–[24].
In this Court, it was argued on behalf of the Director that, given the nature and gravity of the offending, a non-custodial sentence was not within the range of sentence open to her Honour. The offending was aggravated because it involved an attack using a firearm on a mother and her three children in their own home.
It was submitted that the sentence imposed was out of line with the current sentencing practice as revealed by Hogarth v The Queen,[6] DPP v Meyers[7] and Ross v The Queen.[8]
[6](2012) 37 VR 658.
[7](2014) 44 VR 486.
[8][2015] VSCA 302.
It was submitted also that her Honour gave too much weight to delay and rehabilitation. It was submitted that the real period of delay was between March 2013, when the respondent was charged with these offences, and October 2015, when he was tried. The evidence of rehabilitation was confined to the period between February and October 2015. There was very little in the period between April 2009 and February 2015 which could be said to show rehabilitation.
It was submitted for the respondent that delay and rehabilitation, taken together with evidence of family support, useful work on the family farm and the respondent’s relationship with his young children, meant that the sentence imposed was fairly within the range available to the sentencing judge. But if the Court was not so persuaded, then it should exercise its residual discretion to dismiss the appeal. It should do so on the basis that the respondent had been at large and satisfactorily undergoing his community correction order, and because of the time since offending. A report dealing with the applicant’s performance under the community correction order was filed, and also a further letter from Professor Currie indicating that the respondent was continuing to attend his program.
Conclusions
The main significance of delay, favourable to an accused person, is the opportunity afforded, and taken, of rehabilitation. There is also the relevance of a sword of Damocles hanging over the head of a person who has offended, but who has yet to be dealt with.
As I have already observed, there appears to be no explanation why the April 2009 drugs offences were not dealt with until June 2012. As I have explained, it was only after a DNA sample was obtained in consequence of sentence on that occasion that the respondent’s involvement in the instant offending was discovered.
But with respect to the period between April 2009 and his being charged in early 2013, so far as it could be relevant, two matters are clear. First, there is really no evidence that the respondent underwent rehabilitation in that period. To the contrary, the evidence showed that his drug use continued, and that he offended again. Second, the respondent stated that, by reason of his drug use, he had no recollection of having committed the instant offences. Indeed, he could not remember having any detail of the offences committed in 2011. It seems very unlikely, in those circumstances, that he had any apprehension in the period between April 2009 and March 2013 of a sword of Damocles being suspended over him.
Next, there was delay between early 2013, when the respondent was charged, and his trial in October 2015. But such delay did not run in the respondent’s favour as greatly as the judge appeared to consider was the case. Not only was evidence of the respondent’s rehabilitation before February 2015 lacking, the respondent professed to have no memory of the instant offending, and so at least some of the delay now under consideration was probably explicable on the basis that, because he had no memory of offending by reason of drug use, he decided to go to trial.
It is now accepted that the test to be applied to appeals by the Director, as in DPP v Karazisis,[9] is whether or not the sentence imposed was outside the range of sentences reasonably open to the sentencing judge in the circumstances.
[9](2010) 31 VR 634, 662 [127].
It follows from s 289(1)(a) of the Criminal Procedure Act 2009 that the Court must also be of the view that a different sentence should have been imposed.
I am satisfied that the sentence imposed was not reasonably open to her Honour. This was a particularly callous and serious example of the offences. The offending must have been planned. It involved preying on a woman and her young children after the woman’s husband had left the house. The judge acknowledged that, were it not for the delay, she would have regarded a custodial sentence as inevitable. With respect, her Honour gave too much weight to delay and rehabilitation, and insufficient weight to the gravity of the offending. For reasons which I have attempted to explain, the judge’s assessment of the significance of delay was not sound; whilst the period of rehabilitation upon which the respondent relied was on true analysis relatively short. Moreover, absent reliance upon Verdins, general deterrence was an important sentencing consideration, as were just punishment and denunciation.
I am not persuaded that the Court should exercise its residual discretion to dismiss the appeal. I understand the force of the submission that, the respondent having been at large, it is a significant step that an order be made that he now be imprisoned. I understand also the force of the submission that imprisonment would interfere with the respondent’s ongoing treatment. But having regard to all the matters upon which the respondent could rely, the circumstances in their entirety demanded imposition of an immediate custodial sentence. The appeal should be allowed. I would sentence the respondent to be imprisoned for a total effective
sentence of four years with a non-parole period of two years. That proposed head sentence is the less having regard to the fact that the respondent has now served more than four months of the community correction order which was imposed upon him. The non-parole period which I propose is proportionately low, so as to best facilitate the respondent’s rehabilitation in the event that he is granted parole.
I would sentence the respondent as follows:
Charge on Indictment Offence Maximum Sentence 1 Aggravated Burglary [Crimes Act s 77(1)] 25 years [Crimes Act s 77(2)] 3 years 2, 3, 4 & 5 False Imprisonment [Common Law] 10 years [Crimes Act s 320] 9 months for each of Charges 2, 3, 4 and 5.
3 months of the sentences on charges 2, 3, 4 and 5 to be cumulative with each other and with Charge 1.Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years’ imprisonment
FERGUSON JA:
I agree with Coghlan JA.
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