Ellis v The Queen
[2021] VSCA 229
•23 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0143
| AARON JOSEPH ELLIS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 August 2021 |
| DATE OF JUDGMENT: | 23 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 229 |
| JUDGMENT APPEALED FROM: | DPP v Ellis [2020] VCC 956 (Judge Parrish) |
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CRIMINAL LAW – Appeal – Sentence – Burglary and associated offences – Experience of profound childhood deprivation – Diagnosis of Post-Traumatic Stress Disorder – Where sentencing judge considered the impact of mental impairment pursuant to R v Verdins (2007) 16 VR 269 – Where sentencing judge did not apply Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed – Appellant resentenced to four years and six months’ imprisonment with non-parole period of two years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms G Connelly | Hilton-Wood Solicitors |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Kennedy JA, whose reasons I have had the benefit of reading in draft.
KENNEDY JA:
On 3 June 2020 the appellant pleaded guilty in the County Court to three charges of burglary[1] (charges 1, 4 and 6); three charges of theft[2] (charges 2, 5 and 7); one charge of threat to inflict serious injury[3] (charge 3); and two related summary offences of possessing cartridge ammunition without a license or permit[4] (summary charge 8) and possessing a prohibited weapon (taser) without exemption[5] (summary charge 10). On 29 June 2020, following reasons for sentence,[6] he was sentenced as set out in the table below:
[1]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 21. The maximum penalty is five years’ imprisonment.
[4]Firearms Act 1996, s 124. The maximum penalty is 40 penalty units.
[5]Control of Weapons Act 1990, s 5AA. The maximum penalty it two years’ imprisonment or 240 penalty units.
[6]DPP v Ellis [2020] VCC 956 (‘Sentencing Remarks’).
Charge Offence Sentence Cumulation 1 Burglary on 13 October 2019 3 years Base 2 Theft (of jewellery) on 13 October 2019 3 years 3 Threat to inflict serious injury 8 months 5 months 4 Burglary between 23 and 24 August 2019 2 years 1 year 5 Theft (of a motorcycle) between 23 and 24 August 2019 2 years 6 Burglary between 24 and 25 August 2019 2 years 1 year 7 Theft (of a chainsaw) between 24 and 25 August 2019 2 years 8 Possess ammunition without licence or permit $200 10 Possess weapon (Taser) without exemption 6 months 3 months Total Effective Sentence 5 years and 8 months’ imprisonment Non-Parole Period 3 years and 6 months Pre-Sentence detention 228 days Section 6AAA Statement 7 years and 6 months’ imprisonment with a non-parole period of 5 years Other orders Forfeiture orders
On 24 July 2020, the appellant filed an application for leave to appeal. On 4 December 2020, the appellant was granted leave to appeal on two grounds as follows:[7]
Ground 2 : The learned sentencing judge made an error in the application of principle in his approach to the assessment of the relevance of the [appellant’s] history of profound childhood deprivation.
Ground 3: The sentences imposed on charges 4 – 7 and related summary offence 10, the orders for cumulation, the total effective sentence and non-parole period are manifestly excessive in all the circumstances.
[7]Leave to appeal was refused on ground 1, formulated as follows:
1. The learned sentencing judge made a material error of fact in concluding that Mr Mackinnon considered the [appellant] committed the offences for financial gain.
For the reasons expressed below I have determined that ground 2 is established, and that the appellant will be resentenced as indicated at the end of these reasons.
Circumstances of the offending[8]
[8]This summary is taken from the Summary of the Prosecution Opening, which was treated as an agreed statement of the facts.
499 Morpung Avenue offences
Between 23 and 24 August 2019, the appellant entered the property located at 499 Morpung Avenue, Irymple (charge 4: burglary). The appellant went into the shed located at the property and stole a 2016 KTM 450 SX-F motorcycle (charge 5: theft). On 24 August 2019 the owner of the property reported the incident to police, noting that his rear fence had been cut open.
555 Morpung Avenue offences
Between 24 and 25 August 2019 the appellant entered the property located at 555 Morpung Avenue, Irymple (Charge 6: burglary). The appellant stole a Stihl MS-211 chainsaw from the property (Charge 7: theft). The owner of the property noticed that the chainsaw went missing (from his shed) during the month of August, but did not report the theft to police.
The Woodsies Gem Shop offences
In the early hours of Sunday 13 October 2019 the appellant left his address in a dark blue Hyundai sedan. The appellant parked his vehicle on Morpung Avenue, Nichols Point, adjacent to the property located at 21 Morpung Avenue. The car was partially hidden by the bushes on that property. The appellant was wearing a dark grey hooded jumper, a black and white covering over his mouth and dark coloured gloves. He was carrying a metal bar and a garbage bag.
The appellant first attempted to enter the Woodsies Gem Shop (‘the Shop’) by smashing the front door, which faces onto Cureton Avenue, Nichols Point. The appellant smashed the bottom glass panel of the door, and dented the roller door behind it, but did not manage to gain entry. The appellant then walked back onto Morpung Avenue. From there, he accessed the fence that forms the edge of the maze located on the Shop’s property and runs parallel to Morpung Avenue. The appellant cut a hole in this fence.
The appellant entered the property through the hole in the fence and proceeded through the maze to the Shop’s rear door. The appellant smashed open this rear door to gain entry to the Shop (charge 1: burglary). When the appellant got inside the Shop, he smashed open the glass display cabinets to the sapphires, rubies, amethysts, and garnet stones with the metal bar. He removed approximately 300 to 400 items of stones, gold and silver (valued at $134,284.21) from these display cabinets and placed them into the garbage bag. The appellant cut his right hand on one of the glass cabinets as he did this (charge 2: theft). The appellant left the Shop through the same door from which he entered.
At about 1:23 am on 13 October 2019, Cheryl Taylor, a co-owner of the Shop, received a phone call from the Shop’s security alarm company, notifying her that an alarm sensor in the Shop had been tripped. Ms Taylor started walking along Morpung Avenue towards the Shop. As she neared the Shop gate, she heard the thumping noise of the appellant jumping over the fence that borders the maze. Ms Taylor saw the appellant emerge from behind a tree and bush covering the fence, as he was leaving the maze. Ms Taylor was at this point standing in the middle of Morpung Avenue.
The appellant was holding the metal bar in his right hand, over his head motioning as if to strike, and the garbage bag in his left hand. He took five or six steps towards Ms Taylor, which made her feel threatened, and he shouted at her ‘I’ve got gun, don’t ring the cops or I’ll shoot you’. Ms Taylor started to back away from the appellant. The appellant repeated the words ‘I’ll shoot you’ twice more to her. His voice was aggressive and threatening (charge 3: threat to inflict serious injury). The whole confrontation lasted only a few seconds.
Ms Taylor used her mobile to call 000 and told the phone operator that ‘a guy just threatened me with a – a gun’. While she was on the phone to 000, the appellant ran back to his parked car, and drove off in a westerly direction along Morpung Avenue towards Eleventh Street. The appellant left the face covering that he had been wearing behind at the location where he had parked his vehicle.
When the appellant arrived home, he put the stolen jewellery into two jars and placed the jars inside a toiletry bag. The appellant then buried the toiletry bag underneath his house, between the fourth and fifth poles.
When police attended and conducted a search of the area, they located some of the stolen jewellery items along Morpung Avenue on the ground, near the hole that had been cut in the fence and the Shop’s driveway.
Execution of search warrant – possession offences
At approximately 9:42 am on 14 November 2019, Senior Constable Jeremy Weinert and Sergeant Paul Hollingworth executed a search warrant at the appellant’s address. The appellant was present. Detective Senior Constable Daniel Hayes also attended the address.
The appellant told Senior Constable Hayes that he had a Conducted Energy Device (taser) at the property and advised the location of it. Police found and recovered the device from the appellant’s bedroom (charge 10: possessing a prohibited weapon without an exemption or approval).
While searching the rear shed of the property, Senior Constable Weinert found the stolen chainsaw and parts of the stolen motorcycle at about 11:01 am.
Then at about 11:07 am, Senior Constable Weinert found assorted cartridge ammunition for a .22 calibre firearm behind a drawer in the shed (charge 8: possessing cartridge ammunition without a licence or permit).
Police interviews
Police arrested the appellant and transported him to Mildura Police Station.
During the appellant’s first interview with police on 14 November 2019, the appellant denied the indictable offences, but admitted the summary offences. However, on 15 November 2019 the appellant told Detective Senior Constable Daniel Hayes that he wanted to show police where he had hidden the jewellery stolen from the Shop. At approximately 11:05 am that day, Detective Senior Constable Hayes, Detective Senior Constable Zachary Oates and First Constable Michael Fraser then took the appellant back to his address to conduct a further search.
The appellant gave Senior Constable Oates instructions as to the location of the stolen jewellery underneath the house, which he and First Constable Shane Weeks located and recovered about 8 minutes later.
The appellant then participated in a second voluntary interview with police in which he admitted the conduct the subject of charges 1 to 3.
The appellant was remanded in custody on 14 November 2019, and as at the date of the sentence, he had served 228 days of pre-sentence detention. He had pleaded guilty to the charges at the first committal mention on 18 February 2020, which the prosecution accepted was the earliest opportunity in these proceedings.
Appellant’s criminal history
As was recorded by the sentencing judge, the appellant’s criminal record included the following:[9]
[9]Sentencing Remarks [14]-[15].
(a) On 26 March 2015 at the Warrnambool County Court, the appellant pleaded guilty to one charge each of burglary, theft, arson and armed robbery and two charges of reckless conduct endangering serious injury. He also pleaded guilty to a summary charge of unlicensed driving. On this date, the appellant was sentenced to a total effective term of imprisonment of four years with a non-parole period of three years. An appeal against this sentence, on the basis of manifest excess, was dismissed.[10] The appellant was paroled in May 2017.
(b) On 23 September 2014 at the Warrnambool Magistrates’ Court, the appellant was convicted and sentenced to a number of offences including dangerous driving while pursued by police; possessing a prohibited weapon without exemption/approval; possessing suspected stolen goods; dishonestly receiving stolen goods; burglary; theft from shop; dealing with property suspected of being the proceeds of crime; intentionally damaging property; unlawful assault; and committing an indictable offence whilst on bail. He was sentenced to an effective term of one year two months’ imprisonment, with a non-parole period of eight months.
(c) The appellant’s record indicated that over the period from 14 December 2005 through to 21 February 2012 he was convicted of a number of offences in South Australia, including procuring the use of a vehicle by dishonest misrepresentation; being unlawfully on premises; dishonestly taking property without consent; possessing a firearm without a license; discharging a firearm to cause injury or damage to property; and failure to store ammunition in a locked container.
[10][2015] VSCA 320.
Reasons for sentence
After recording the circumstances of the offending, and the appellant’s criminal history as above, his Honour cited the victim impact statement of Ms Taylor. He referred to her shock and fear when she was confronted by the appellant, and that the last thought that crossed her mind was that the appellant was going to shoot her. She was also concerned about her parents’ safety, given that they lived next door.[11]
[11]Sentencing Remarks [17]-[19].
The sentencing judge then turned to the personal circumstances of the appellant, and matters in mitigation.[12] In doing so, his Honour referred to a report tendered by the appellant from consultant psychologist Mr Ian H Mackinnon, dated 24 May 2020.
[12]Ibid [21].
The appellant was aged 32 at the time of the sentence. His mother had died from natural causes when he was four years old, after which he was made a ward of the State and placed in ‘at least fifteen different foster homes all over Victoria, South Australia, New South Wales’. At age twelve he was formally placed with his biological father, but this arrangement quickly ‘went downhill’ due to his father’s drug addiction. He then went into foster care in South Australia. In particular, he informed Mr MacKinnon that:
I didn’t know what was going on as a kid. I was dealt with harshly a lot of the time… Quite a few foster situations were abusive, only two were safe. All under one year with each foster family. So school was disrupted over and over, I had no friends… I’ve been back in contact with my half-sister over the last three years. She lives in Mildura.
...
I spent a lot of my childhood growing up on the streets. Teenage years, I started running away onto the streets. Got locked up in Juvee in South Australia, in secure welfare.
The appellant attended multiple schools in Victoria, South Australia and New South Wales, leaving school at age fifteen, having never completed any one year. He informed Mr MacKinnon that he could read and write, taught largely by a lot of reading.
Upon leaving school, he did casual work with Jim’s Mowing, and has since done concreting, labouring and fishing work. Prior to being remanded in custody he was working in a winery under a government incentive apprenticeship, and did this for about twelve weeks, which was the most stable work he had ever done.
The appellant described an attachment to his then partner Jasmine,[13] and her three kids, describing it as the first real closeness he has had. He also detailed a number of substance abuse issues, having commenced smoking cannabis at twelve years old − his father having supplied him with it. He reported regularly smoking cannabis and drinking alcohol (and sometimes using amphetamine) over the next few years. From his later teens to mid-20s he was also an injecting speed user, and regularly injected ice for a few months before going to prison. He has since been prescribed Suboxone for about five years for treatment of his drug addiction, and this had helped him get off drugs.
[13]Counsel for the appellant advised the Court that the relationship has since ended.
Mr MacKinnon diagnosed the appellant to be suffering from symptoms that met the clinical criteria for Post-Traumatic Stress Disorder (‘PTSD’) of moderate intensity.[14] The primary antecedents to this appeared to have been the multiple developmental traumas he endured after losing his mother, and then suffering a childhood and adolescence marked by ever-changing foster placements, a lack of secure and enduring significant emotional bonds, and the entirely disappointing and damaging unification with his father.[15] Mr MacKinnon was also of the opinion that the appellant now presented with many of the symptoms associated with Borderline Personality Disorder.[16]
[14]Sentencing Remarks [22].
[15]Ibid [24].
[16]Ibid [25].
Mr MacKinnon was impressed by the appellant as an individual who has potential to ameliorate many of his problematic traits if his living circumstances could be stabilised in an appropriate context.[17] He recorded the appellant’s statements that:
If I could take it back, I would. Coming from such a small area, the harm I caused … But everything was returned so that’s one glimmer of hope. I still feel horrible about it but knowing they got their stuff back, I feel a bit better about it. After I did it, I couldn’t explain why I’d done it. I didn’t even know what I was going to do with everything. I held onto it all for weeks until they arrested me. I’ve self-sabotaged myself for years. My life in 2019 was the best I’d ever known. I don’t understand it myself. I let Jasmine and the kids down badly. Jasmine was shocked.
[17]Ibid [26].
Mr MacKinnon also expressed the opinion that the appellant’s PTSD made a ‘very significant contribution’ to the offending.[18]
[18]Ibid [28].
The sentencing judge noted that Mr MacKinnon considered that the appellant had committed the offences for financial gain, given his financial ‘dire straits’ at the time of the offending, and that he did not wish to risk losing the relationship with Jasmine.[19] This was said to be consistent with counsel for the appellant’s submission, on instructions, that the appellant committed the offence as a result of money worries.[20]
[19]Ibid [29].
[20]Ibid [30].
The sentencing judge accepted that the appellant pleaded guilty at the earliest possible time which had a ‘significant utilitarian effect’. His Honour also accepted that the early guilty plea demonstrated the appellant’s ‘willingness to facilitate the course of justice and the acceptance of responsibility’.[21] The appellant’s comments recorded above indicated an insight as to the harm he caused the subjects of the burglaries and thefts, but also Jasmine and his family.[22]
[21]Ibid [32(a)].
[22]Ibid [32(a)].
The sentencing judge then turned to the ‘Verdins issues’, referring to the decision in R v Verdins,[23] and outlined the six ways in which impaired mental functioning is relevant to sentencing. He noted that the appellant appeared to rely only on the first of those ways, being the contribution of the appellant’s PTSD to reduce the moral culpability of the offending conduct.
[23](2007) 16 VR 269 (‘Verdins’).
The sentencing judge then made the following remarks:
I accept that your childhood was tragic, involving your mother dying when you were a small child and then, as your counsel describes it, ‘a dreadful experience in State care mainly in Victoria and South Australia’, I have already referred to the history given by you to Mr MacKinnon.[24]
[24]Sentencing Remarks [32(b)].
The sentencing judge accepted that the appellant suffered from a ‘mental illness’ at the time of the offending, but considered the relationship between the ‘mental illness’ and the contribution to the offending to be ‘tenuous’ on the evidence. His Honour considered that the appellant’s moral culpability ought to be reduced to some extent as a result of his impaired mental functioning, but did not accept that the appellant’s condition had any further relevance.[25]
[25]Ibid [32(b)].
The sentencing judge then turned to the impact of hardship resulting from the COVID-19 pandemic, which his Honour considered to be a factor to be taken into account in mitigation.[26]
[26]Ibid [32(c)]-[32(d)].
The sentencing judge noted that the offences involved a degree of planning, although ‘not all that sophisticated’.[27] In relation to the Woodsies Gem Shop offences, the appellant disguised himself to avoid detection; was armed with a metal bar and garbage bag to carry stolen goods; and caused property damage to gain entry. His Honour accepted the prosecution’s submissions that the objective gravity of the offending in relation to the charges was ‘mid-range’.[28]
[27]Ibid [39].
[28]Ibid [40].
His Honour also noted the appellant’s previous offending, in particular the offending for which he was sentenced in 2014 and 2015, each of which included burglaries and thefts.[29]
[29]Ibid [41].
His Honour considered that the appellant’s prospects of rehabilitation were not hopeless, but were ‘guarded,’ particularly given his current offending had taken place within about 18 months of being paroled from imprisonment.[30]
[30]Ibid [44].
His Honour also considered the moral culpability to be high, although tempered to some extent by the appellant’s impaired mental functioning pursuant to Verdins.[31]
[31]Ibid [45].
The sentencing judge stated that his intention was to sentence the appellant to periods of imprisonment, and that he was conscious of the concept of double punishment and the principle of totality in the overall sentence, finding that there should be concurrency between each charge of burglary and the consequential theft.[32]
[32]Ibid [46].
The relevant sentencing factors were said to be general deterrence, denunciation, some degree of just punishment, as well as specific deterrence given his relatively recent past offending.[33]
[33]Ibid [47].
The summary charges were ‘nowhere as serious,’ but the sentencing judge intended to sentence the appellant to a ‘modest period of imprisonment’ in relation to summary charge 10.[34]
[34]Ibid [48].
His Honour also stated that he took into account the various mitigating matters to which he had referred, specifically noting the early plea of guilty, and the assistance to police in returning the various stolen goods – particularly the valuable jewellery.[35]
[35]Ibid [49].
Ground 2 – relevance of profound childhood deprivation
Appellant’s submissions
The appellant relied upon the sentencing judge’s finding that the appellant had a tragic childhood involving the early death of his mother, abandonment, and inadequate care. His Honour had also accepted Mr Mackinnon’s diagnosis of PTSD, and accepted that the appellant’s drug and alcohol use commenced at a very young age under the influence of his father.
However, in sentencing, his Honour did not address relevant principles from the case of Bugmy v The Queen,[36] although in oral exchange his Honour foreshadowed a ‘Bugmy light’ approach. Had Bugmy been correctly applied, a palpably reduced assessment of the appellant’s moral culpability would have resulted.
[36](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
In particular, it was an error of principle to confine consideration of the appellant’s experience of profound childhood deprivation to one of its impacts, namely PTSD, and then to consider only the extent to which the PTSD was the immediate cause of the offending. The fact of profound childhood deprivation was directly relevant in and of itself because the appellant’s subjective culpability could not be equated with that of a person who had not had that experience. Moreover, as the uncontested underlying cause of the appellant’s criminal history, it diminished the impact of that criminal history on the appellant’s moral culpability for the present offending.
Respondent’s submissions
The respondent highlighted that the sentencing judge had discussed the application of the Verdins and Bugmy principles during the plea. His Honour was alive to the mitigatory effects of the appellant’s background and mental health, and referred to both the Verdins and Bugmy approaches.
While the reasons did not specifically mention Bugmy, the sentencing judge did refer to the appellant’s deprived background and mental health.
In written submissions, the respondent contended that the sentencing judge implicitly formed a view that the appellant’s deprived background did not rise to the level of ‘profound deprivation’ and therefore did not apply Bugmy. However, in oral submissions counsel appeared to take a somewhat different approach by accepting that Bugmy should have been applied, and submitting that the judge did in fact apply it.
Even if an error occurred, the respondent also contended that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed, or that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Analysis
In the decision of Bugmy the High Court explained the relevance of childhood deprivation to a sentencing decision. As highlighted by counsel for the appellant, an offender’s background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[37] More specifically, such deprivation may also impact on the relevance of any antecedent criminal history.[38] In DPP v Green, this Court also stated that:
…while the respondent’s criminal history was relevant to an evaluation of his moral culpability for the offending for which he was to be sentenced, the underlying causes of that previous offending, to a measurable extent, diminished the relevance of his criminal history as an indication of his moral culpability for the offending.[39]
[37]Bugmy (2013) 249 CLR 571, 594 [40]; [2013] HCA 37.
[38]Bugmy (2013) 249 CLR 571, 594 [43]; [2013] HCA 37.
[39][2020] VSCA 23, [86].
In Bugmy, the High Court further said:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.[40]
[40]Bugmy (2013) 249 CLR 571, 595 [44]; [2013] HCA 37.
Two issues will thereby arise in considering the application of Bugmy: first, whether there is material tending to establish that background;[41] secondly, whether such background has been given ‘full weight’.
[41]Ibid 594 [41].
As already indicated, counsel for the respondent accepted that Bugmy should have been applied. This was an appropriate concession. The evidence, inter alia, of the appellant being placed into foster care at age four; having fifteen different placements (only two of which were ‘safe’); not completing a single year of school; being introduced to drugs at age twelve by his biological father; and experiencing homelessness as a teenager well meets the concept of deprivation, and even ‘profound’ deprivation. In fact the sentencing judge himself accepted that the appellant’s childhood was ‘tragic,’ and that he had a ‘dreadful’ experience in State care.
The sole issue raised was therefore whether the sentencing judge did apply Bugmy in imposing the sentence that he did.
Both counsel took the Court to various parts of the transcript of the plea hearing. More particularly, the respondent highlighted a passage where the sentencing judge suggested that he would take a ‘light Bugmy approach’. Counsel suggested that the sentencing judge’s intention was to apply Bugmy which interlinked with the Verdins principles.
However, the sentencing judge’s intentions are not material on this appeal. Rather, this Court must examine the reasons as given to discern whether relevant principles were applied. Although there was some interplay between the Verdins principles and the Bugmy principles (given the ’primary antecedents’ to the PTSD was the deprived childhood), the principles in Bugmy warranted separate consideration.
It is true that the judge cited the appellant’s background. However, he then focused solely on the appellant’s ‘mental illness’, prior to considering whether the necessary nexus for the application of Verdins was established. He found that the first of the Verdins propositions was engaged, so that the appellant’s moral culpability was correspondingly reduced to some extent as a result of his impaired ‘mental functioning’. His ultimate conclusion was also that the appellant’s moral culpability was tempered (only) by reference to the ‘Verdins first limb.’
There is hence no reference to Bugmy at all. Moreover, one cannot derive some implicit consideration by reason of the reference to the appellant’s mental impairment. Rather, the principles identified in Bugmy must be considered in their own right quite apart from the impact of any mental impairment pursuant to Verdins principles.
Having read the Sentencing Remarks in full (including the passages highlighted by the respondent) I therefore reject the suggestion that the sentencing judge gave any separate consideration to the Bugmy principles. Such failure constitutes an error which vitiates the sentence such that the appeal will be allowed and the appellant resentenced.
Given this conclusion it is not necessary to consider ground 3. However, where appropriate, it is useful to refer to the parties’ submissions on ground 3 as they relate to the appropriate sentence.
Resentence
In terms of the objective gravity of the offending, the conduct the subject of charges 1 to 3 was serious. There was a degree of planning involved, and the goods stolen were of a significant value. However, as the respondent also conceded, the criminal conduct the subject of charges 4 to 7 was ‘quite different’. Instead, these charges involved unsophisticated burglaries of non-residential buildings relating to goods of relatively low value.
An assessment of the appellant’s moral culpability for the offending must also take into account Verdins and Bugmy.
In terms of the appellant’s mental impairment, there is no reason to depart from the sentencing judge’s assessment that the appellant’s moral culpability is reduced to some extent by reason of his mental impairment. However, that moral culpability is also reduced by reason of his deprived background which has ongoing impact for reasons already described.
The previous criminal history, with sentences of imprisonment for similar offending, is also relevant, and suggests the need for specific deterrence. Nevertheless, the ongoing effects of childhood deprivation do diminish the relevance of that criminal history in this case.
I also give weight to the early plea of guilty. This provides some evidence of remorse. It also has a utilitarian value which is strengthened against a COVID-19 background where an early guilty plea is worthy of greater weight in mitigation than a similar plea entered at other times.[42]
[42]Worboyes v R [2021] VSCA 169, [35]-[39].
The respondent also acknowledged that there was evidence of genuine remorse. Such evidence included the relatively prompt admissions, the assistance to the police, and the appellant’s statements to Mr MacKinnon, cited above.
The prospects of rehabilitation may well be ‘guarded’ although not without hope (as the appellant’s counsel expressed it). Mr Mackinnon considered that the appellant has ‘significant potential to ameliorate many of his problematic traits,’ and that he ‘genuinely wants to rehabilitate himself’. At the hearing, counsel also advised that, since the plea, the appellant has been placed in a lower security prison, and has been approved for gardening work outside the prison. This suggests that there would be some merit in the imposition of a non-parole period that allows for a period of supervised rehabilitation in the community.
In accordance with the orthodox approach it is necessary to arrive at the appropriate sentence for each charge. The concept of cumulation is also important, having regard to the totality principles. As Ashley and Weinberg JJA said in Bogdanovich v The Queen:
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’. The totality principle is said to ‘defy precision either of description or implementation’. Sometimes it is described as a requirement of ‘just deserts’, and whether the total effective sentence offends that principle is often a ‘matter of impression’. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as ‘parts of a multi-faceted course of criminal conduct’, it will often be appropriate to order substantial concurrency.[43]
[43][2011] VSCA 388, [63]-[64] (citations omitted).
Notwithstanding a reduced moral culpability, the sentences imposed for charges 1 and 2 are proportionate, and give appropriate weight to considerations of general deterrence and denunciation. Although the respondent described the sentence for charge 3 as ‘merciful’, I also consider it to be appropriate. One can certainly appreciate that the appellant’s actions engendered fear, but a sentence of eight months’ imprisonment sufficiently addresses the need to protect the community and denounce his conduct.
However, the individual sentences imposed for charges 4 to 7 were not appropriate, and insufficiently distinguished the criminal conduct with that the subject of charges 1 to 3. Rather, a sentence of one year’s imprisonment is appropriate on each of charges 4 to 7. Having regard to the fact that the burglaries were committed within a day of each other, there will be cumulation of six months only in respect of each burglary. There will be no cumulation in respect of the two thefts to avoid double punishment, and to give effect to the principle of totality described already.
As to summary charge 10, the respondent conceded that six months’ imprisonment (with three months cumulation) was a ‘stern sentence,’ but did not concede that it was not reasonably open. The respondent also cited Quadara v R[44] where a similar penalty had been imposed (with leave to appeal refused).
[44][2017] VSCA 260.
However, previous cases are of limited utility. As highlighted by the appellant, the decision in Quadara also appears to incorrectly identify the maximum penalty for the offence at ten years’ imprisonment. In this case, the appellant admitted possession of the taser promptly upon service of the search warrant, and assisted police to seize it. There was also no connection between the taser and the appellant’s other offending. In such circumstances I consider that a sentence of three months’ imprisonment is appropriate with one month cumulation.
In the result, I will resentence the appellant in accordance with the following table:
Charge Offence Sentence Cumulation 1 Burglary on 13 October 2019 3 years Base 2 Theft (of jewellery) on 13 October 2019 3 years 3 Threat to inflict serious injury 8 months 5 months 4 Burglary between 23 and 24 August 2019 1 year 6 months 5 Theft (of a motorcycle) between 23 and 24 August 2019 1 year 6 Burglary between 24 and 25 August 2019 1 year 6 months 7 Theft (of a chainsaw) between 24 and 25 August 2019 1 year 8 Possess ammunition without licence or permit $200 10 Possess weapon (Taser) without exemption 3 months 1 month Total Effective Sentence 4 years and 6 months’ imprisonment Non-Parole Period 2 years and 6 months
I declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s pleas of guilty, I would have sentenced him to a total effective sentence of six years’ imprisonment with a non-parole period of three years and six months.
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