Elsayed v The Queen
[2019] VSCA 113
•3 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0261
| OSAMA ELSAYED | Applicant |
| v | |
| Respondent | |
| THE QUEEN |
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| JUDGES: | KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2019 |
| DATE OF JUDGMENT: | 3 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 113 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1813 (Judge Lyon) |
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CRIMINAL LAW — Sentencing — Robbery — Recklessly causing injury — Committing an indictable offence while on bail — Threats to kill made but not charged in indictment — Plea of guilty — Applicant sentenced to two years and six months’ imprisonment with a non-parole period of 19 months — Whether sentencing judge erred by making findings in circumstances where prosecution had not invited him to do so — Whether applicant denied procedural fairness — Whether sentencing judge erred by taking uncharged offending into account as an aggravating circumstance — Newman v Turnbull [1997] 1 VR 146 considered — Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr T Kassimatis QC | Fayman Lawyers |
| For the Respondent: | Mr P L Bourke | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
WEINBERG JA
The applicant pleaded guilty, in the County Court, to one charge of robbery, one charge of recklessly causing injury, and a summary charge of committing an indictable offence while on bail. Following the plea made on his behalf, the judge sentenced the applicant to be imprisoned for a total term of two years and six months, with a non-parole period of 19 months.[1] That sentence is constituted as follows:
[1]DPP v Elsayed [2018] VCC 1813 (‘Reasons’).
Charge Offence Max Penalty Sentence Cumulation 1 Robbery
Crimes Act 1958 (Vic) s 7515 years 26 months
Base 2 Causing Injury Recklessly
Crimes Act 1958 (Vic) s 185 years 12 months
3 months Related Summary
OffenceCommit indictable offence whilst on bail Bail Act 1977 (Vic) s 30B 3 months 2 months
1 month Total Effective Sentence: 2 years and 6 months’ imprisonment Non-Parole Period: 19 months’ imprisonment Pre-sentence detention declared: 322 days 6AAA Statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months’ imprisonment.
The applicant seeks leave to appeal the sentence on three grounds, namely:
1.The sentencing judge erred by finding that the person who had accompanied the Applicant to the victim’s home (‘Mus’) could ‘only’ have been there ‘for the sole purpose of assaulting’ him. In particular, the judge erred by:
(a)making the impugned finding in circumstances where the prosecution had not invited him to do so; and
(b)depriving the Applicant procedural fairness.
2.The sentencing discretion miscarried as a result of the judge’s having sentenced the Applicant under the misapprehension that he committed the instant offending whilst on bail for offences that ‘had been committed the previous year’.
3.The sentencing judge erred by imposing sentence on Charge 1 and Charge 2 in circumstances that punished the Applicant for offending with which he had not charged.
Circumstance of offending
On 2 May 2016, the applicant was charged with a number of indictable offences, including trafficking a drug of dependence in a commercial quantity. Two weeks later, on 17 May, he was released on bail on condition that he attend the drug rehabilitation centre Recovery Oz. While the applicant was at that centre, he met the victim of the offences, Aaron Hanns, and he commenced to supply illicit drugs to Hanns.
In July 2016, Hanns was arrested for possession of drugs. At the time of his arrest he owed the applicant money for the drugs that the applicant had supplied to him. When Hanns was released from custody in October 2016, he resided in a converted garage at his mother’s home in Melton West.
On 9 February 2017, at about 2.00 pm, the applicant, accompanied by an unidentified man who was referred to as ‘Mus’, attended at Hanns’ home. After they were admitted into the garage, the applicant and Mus sat on a couch. The applicant told Hanns that he owed the applicant $20,000. Hanns acknowledged that he owed the applicant thousands of dollars for drugs that had been supplied to him by the applicant, but he disputed that he owed as much as $20,000. Without any warning, Mus got up from the couch, and struck Hanns a number of heavy blows to Hanns’ face. As a consequence of that assault, Hanns suffered a broken nose, and also a broken front tooth, which he involuntarily swallowed, together with swelling and bruising to the face, bleeding from the lips and nose, and black eyes. Hanns then told the applicant that he was unable to pay him any money at that time. The applicant directed Mus to search the garage and take anything that was worth money. Hanns was asked the combination of the safe that was in the garage, and he gave it. When the safe was opened, it was empty.
At about that point Hanns left the garage to go into the house at the premises, in order to get a drink for the applicant and Mus. When he entered the house he told his mother that the applicant was there. Hanns then returned to the garage with the drinks.
Shortly after that, Hanns’ mother also went to the garage. The rear roller door was partially open. When she looked inside, she saw an unknown male (Mus) holding Hanns in a headlock, with the applicant standing opposite Hanns. She heard a conversation take place in the garage in which Hanns was told that he owed the applicant $20,000, and Hanns responded that he did not owe that much, as he had already repaid a lot of the debt. The applicant said that he was willing to settle the matter if Hanns paid him $10,000 by 6.00 pm. Hanns was told that if he did not repay that sum, he was ‘fucked’, and that if he went to the police, his mother was ‘to go first and then his kids’. Hanns, unsurprisingly, agreed that he would not contact the police. As the applicant and Mus left the premises, they took items of value belonging to Hanns, including about $900 to $1000 in cash, an iPhone, some perfumes and illegal drugs.
Over the following week there were some email exchanges between the applicant and Hanns. At a meeting between them it was agreed that the applicant would be repaid the debt from the proceeds of the sale of a vehicle. At one of those meetings the applicant repaid Hanns $500 in cash.
In the meantime, Hanns’ mother reported the matter to the police on 14 February 2017. As a consequence, the applicant was arrested at the Highpoint Shopping Centre on 16 February. When interviewed by the police, he declined to comment on any of the questions asked of him. The applicant was then charged with a number of offences including blackmail, intentionally causing injury and possessing a prescription drug. In October 2017, he was committed to stand trial in the County Court. On 24 January 2018, his application for bail was granted. The matter was listed for trial on 2 July 2018. On that date, the proceeding was resolved. The charge of blackmail against the applicant was withdrawn, and the applicant pleaded guilty to the three charges to which we have referred.
The plea
The applicant was born in January 1990. He is the youngest of five children, his parents having migrated from Lebanon some years before he was born.
The applicant had an unremarkable upbringing. He attended St Albans Primary School and then Keilor Downs College, where he completed Year 12. After he finished his secondary education, the applicant completed four years of an electrician’s apprenticeship. However, he did not qualify, because he had difficulty with the mathematics and theory component of the apprenticeship.
The applicant commenced using illicit drugs when he was introduced to cocaine at the age of 18 years. He then began using cocaine on a weekly basis until the age of 23 years. Until then, he nevertheless managed to remain in employment. In 2014, his best friend died in an accident. At that time, the applicant was introduced to methylamphetamine, to which he became addicted. It was in the context of that addiction, that in September 2015 he was convicted by the Sunshine Magistrates’ Court of a number of offences, including dealing with property that was suspected to be the proceeds of crime, possession of a prohibited weapon, and possession of cannabis, cocaine and methylamphetamine. He was placed on a community correction order for twelve months, and ordered to undergo assessment and treatment. The applicant failed to take advantage of the opportunity provided by that order, and continued to use illicit drugs. As a consequence, in 2017, he was sentenced to 2 months’ imprisonment in respect of those matters.
As already mentioned, in the meantime, the applicant was charged with offences in 2016, in respect of which he was bailed to attend at the rehabilitation facility Recovery Oz. Although he completed the four month residential rehabilitation period at that facility, he nevertheless continued to use and traffick illicit drugs during that time. As stated, it was in that context that he committed the offences for which he was sentenced in the present case.
Following his arrest, the applicant took the first genuine steps to address his serious drug problem while he was remanded in custody in respect of the present offending. It was in that context that he has received counselling and assistance from Ms Amanda Brown, a senior clinician, of Lambert Associates Rehabilitation Consultants. Ms Brown first met the applicant at the Metropolitan Remand Centre on 20 March 2017. She then had six further sessions with him via video link while he was on remand. After his release on bail on 24 January 2018, he regularly attended weekly and fortnightly appointments with Ms Brown.
In her report, Ms Brown noted that the applicant had more insight into his condition than most clients that she had treated. He had remained drug free, and he had commenced employment, first, for a period of three months with an electrical firm on a casual basis, and, subsequently, with a labour hire company. The applicant had moved back to his parents’ home in order to disassociate himself from persons with whom he previously had contact in the context of using and trafficking drugs. He had also reconnected with his religious faith. In addition, he had attended weekly meetings of Narcotics Anonymous. Ms Brown reported that the applicant was positive and focused on his future, and that he was committed to rehabilitation. She considered that the applicant had significantly improved, and that he had begun the process of reclaiming his life.
On behalf of the applicant, counsel, who appeared on his behalf at the plea, relied on the applicant’s plea of guilty, and its utilitarian effect. Counsel noted that the applicant’s previous criminal history was ‘modest’, and that he had already spent a substantial amount of time (some ten months) on remand. It was submitted that the applicant had committed to, and commenced on, a path to rehabilitation, and that it would be detrimental to the continued success of his endeavours in that regard if he were sentenced to a further period of imprisonment. Counsel for the applicant further submitted that there was a considerable overlap between the offence of robbery and the charge of recklessly causing injury. He also contended that the judge was not entitled to take into account, as an aggravating factor, the threats uttered by the applicant to Hanns in respect of his mother and his children, as the applicant had not been charged with any offence in respect of the making of such threats.
Reasons for sentence
In his reasons for sentence, the judge accepted that while the plea of guilty was not made early, it was made to matters that were different to those with which the applicant had originally been charged, and thus it must be taken to be of utilitarian benefit.
The judge considered that the applicant’s moral culpability for the offending was very high. The applicant had ‘targeted’ Hanns because he was a drug user to whom the applicant had been selling drugs and who owed him a considerable amount of money. His Honour noted that an integral part of the robbery was that it was carried out in the company of another, who, the judge concluded, ‘… was there for the sole purpose of assaulting Mr Hanns’. His Honour further stated that the crime was ‘planned, calmly executed, designed to intimidate and to enforce an illegal drug debt’.[2]
[2]Reasons [20]–[21].
The judge further concluded that the assault on Hanns was premeditated. It had not been proceeded by any conduct of Hanns that warranted the attack, and as such it was one sided, and a ‘deliberately brutal and vicious assault which was designed to cause physical injury, real pain and true intimidation’.[3]
[3]Reasons [22].
The judge referred to the victim impact statements of Hanns and his mother, each of which spoke of the profound fear and psychological damage caused to them as a result of the conduct of the applicant. His Honour stated:
I make it clear … that you are not to be punished for conduct with which you were not charged. Rather, it is necessary to set out the full context in which your offending occurred to make it clear that your offending is very serious indeed.[4]
[4]Reasons [25].
The judge then turned to the applicant’s personal circumstances, to which we have referred, including the steps that he had taken to address his drug problem. He considered that the applicant had ‘very reasonable prospects for rehabilitation’.[5] His Honour then stated:
Ultimately, however, I take the view that your offending was very serious and warrants a further period of imprisonment. Society will not tolerate gangster like behaviour. You endeavoured to enforce a drug debt by going into the victim’s family home, beating him up and intimidating him and stealing property. This type of behaviour can only be met by imprisonment.[6]
[5]Reasons [41].
[6]Reasons [42].
Ground 1
Ground 1, of the application for leave to appeal, is directed to the observation made by the sentencing judge that Mus could only have accompanied the applicant to the victim’s home for the sole purpose of assaulting him.
Counsel for the applicant noted that that finding by the judge constituted a significant aggravating feature of the applicant’s offending. Counsel contended that the prosecution did not allege, nor did the prosecutor invite the judge to find, that the assault upon Hanns was premeditated, or that the attendance by Mus at the home of Hanns, in company with the applicant, was for the purpose of assaulting him. In addition, counsel submitted, the judge failed to alert counsel for the applicant, at the plea, to the fact that he was contemplating, or intending, to make those findings. In those circumstances, it was submitted, the judge failed to accord procedural fairness to the applicant by taking the impugned finding into account in the determination of the sentences imposed on the applicant.
In response, counsel for the respondent contended that during the plea hearing the prosecution had submitted that the offending by the applicant involved planning. In addition, during the course of the plea, the sentencing judge had referred to the fact that the applicant had taken Mus to the premises for the purposes of both intimidating Hanns and inflicting violence on him. Accordingly, it was contended, the applicant was not denied procedural fairness in respect of the finding that is the subject of ground 1.
Fundamental principles of procedural fairness require that, in imposing sentence, a judge should not take into account a particular factor, attending the offending in question, as an aggravating circumstance, unless counsel for the offender has had an opportunity to address that matter in the course of sentencing submissions. The relevant principles were stated by this Court in Best v The Queen:[7]
Features of aggravation may, of course, lead to a more severe sentence. Axiomatically, therefore, features of aggravation must be established by the prosecution beyond reasonable doubt. Further, procedural fairness dictates that a judge generally should not act upon a putative aggravating circumstance of any significance unless it has first been raised with counsel.
Similarly, where the parties have, for the purposes of sentencing, agreed upon an agreed factual basis of an offence, although a judge is not necessarily bound by the agreed facts, such agreed facts should not be departed from without the matter being raised with counsel, and counsel given the opportunity to address argument. And, of the utmost importance, a person cannot (generally speaking) be sentenced for conduct which might constitute a separate offence of which he has neither been charged nor convicted.[8]
[7](2015) 46 VR 196.
[8]Ibid 208–9 [64]–[65] (citations omitted); see also SD v The Queen (2013) 39 VR 487, 496 [37]–[38].
A review of the transcript of the plea reveals that, contrary to the submissions of counsel for the applicant, the two factors, relied on by the applicant in support of ground 1, were sufficiently drawn to the attention of counsel, in the course of sentencing submissions, to comply with those principles.
In the course of sentencing submissions, counsel for the applicant addressed a number of sentencing decisions of the Court, and of the County Court, which, he contended, were comparable cases for the purposes of determining the appropriate range of the sentences that were available to the judge. In doing so, counsel submitted that the decision of the County Court in a case of Director of Public Prosecutions v Ferrari[9] involved ‘worse offending’ than the offending in the instant case. That submission provoked the following exchange between the judge and counsel:
His Honour: How do I put in context that he’s gone to the house with Muscle for the purposes of collecting an illegal debt, having his nose smashed and breaking his tooth. I see that as more serious than … Ferrari if I must say.
(Counsel for the applicant): Offender and co-offender went into victim’s house to collect on a drug debt.
His Honour: I read it. I heard what you said but I’m telling you my assessment is that the circumstances of this are more serious. The fact that he took Muscle for the purposes of inflicting violence and intimidation and it’s not as if that was the end of the matter.
(Counsel for the applicant): What, with respect, your Honour is putting to me a spin on the facts, that is …
His Honour: … It’s not a spin on the facts … it’s the facts as they are. He went there with the purposes — they went in company to demand money for a drug debt … and before the robbery took place, the intimidation and violence occurred.
[9][2017] VCC 531 (‘Ferrari’).
Pausing there, it is clear, from that exchange between the judge and counsel, that the judge articulated the inference, that he intended to draw from the facts that had been opened to him, that the applicant took Mus with him to the premises of Hanns for the purposes of intimidation and inflicting violence. While counsel for the applicant, in sentencing submissions, continued to argue that the case of Ferrari was more serious than the instant case, he did not seek to address, in any meaningful way, the inference stated by the judge concerning the reason why Mus accompanied the applicant to Hanns’ premises. However, it is clear from that passage, that, as we have stated, counsel for the applicant was sufficiently on notice that the judge had the particular view of the facts that is now the subject of ground 1 of the application for leave to appeal.
It should also be noted that, in submissions in reply, counsel for the prosecution contended to the judge that the offending involved planning. In other words, the prosecution case was that the offending, that was carried out at the premises of Hanns, was premeditated.
In those circumstances, it is clear that, in the course of sentencing submissions, counsel for the applicant was put on sufficient notice that the judge intended, or at least contemplated, proceeding on the view of the facts that Mus accompanied the applicant to Hanns’ premises for the sole purpose of intimidating Hanns, and, if necessary, inflicting violence on him. It was also clear, from the proposition enunciated by the prosecution, that counsel for the applicant was aware that the prosecution case was that the offending, that occurred at the premises, was premeditated.
We should add that, in any event, those two propositions constituted no more than clear inferences that flowed, almost inescapably, from the recitation of the facts contained in the prosecution opening that was before the sentencing judge. In particular, the opening stated that when Hanns accepted that he owed the applicant thousands of dollars for drugs but disputed how much he owed to him, Mus, without warning, struck Hanns heavy blows to the face. That conduct by Mus constituted the offence that was the subject of charge 2, causing injury recklessly. In other words, it was part of the joint criminal enterprise to which the applicant was a party with Mus.
It is quite clear that Mus was acting, throughout the whole of the incident, at the direction of the applicant. After the assault, the applicant directed Mus to search the garage, which he did. Subsequently, when Hanns’ mother came to the garage, she saw Mus holding Hanns in a headlock, with the applicant standing opposite him. During that time, Hanns was told that he owed $20,000 and that if he did not come up with the money he was ‘fucked’. The inevitable inference, from that concatenation of facts, is that, pursuant to the joint criminal enterprise, previously formed between Mus and the applicant, the role of Mus was to act as the applicant’s enforcer, to the extent that the assault which constituted the offence in charge 2 came within the ambit of that enterprise. In those circumstances, apart from the exchanges between the judge and counsel on the plea, counsel for the applicant was sufficiently on notice that it was open to the judge to find, first, that the offending had been pre-planned, and, secondly, that the role of Mus was to act as the applicant’s violent enforcer in the robbery.
For those reasons, ground 1 must fail.
Ground 2
In support of ground 2, counsel for the applicant pointed to two passages in the judge’s reasons for sentence, in which his Honour stated that at the time of the offending the applicant was on bail for offences that ‘had been committed’ the previous year. Counsel for the applicant pointed out that while the applicant had been charged, on 2 May 2016, with a number of offences, including drug offences, those charges had not been disposed of at the time of the offending in the present case, in February 2017. Accordingly, it was submitted, the judge proceeded on the erroneous basis that the applicant’s previous criminal history included offences, for which he had not in fact been convicted at the time of the offending.
In response, counsel for the respondent submitted that the judge’s reference, to the matters in respect of which the applicant was then on bail as offences that ‘had been committed’, was no more than a ‘slip’ in the manner in which the judge expressed the facts. Counsel contended that the inadvertent references, by the judge, were made by way of chronology only, and they did not play any material role in the exercise by his Honour of the sentencing discretion.
The submission made by counsel for the respondent is correct. In the first passage relied on by the applicant, the judge recited the chronology of events, in the context of which the offending occurred. His Honour noted that after the offending, the applicant was arrested on 16 February. The judge then stated ‘At the time of the offending you were still on bail for the offences that had been committed the previous year’.[10]
[10]Reasons [17].
When the judge outlined the applicant’s personal circumstances, his Honour noted that the applicant started offending when he commenced to use methylamphetamine, and that the offending came before the courts for the first time in September 2015. It was in that context that the judge then stated ‘As I have noted you committed further offences in 2016 and were bailed to Recovery Oz’.[11]
[11]Reasons [31].
It is clear from that context that the judge, by that form of expression, did not understand, or proceed on the incorrect basis, that the applicant had committed the particular offences to which he referred. It is fundamental that a person who is on bail has not been convicted for the offences for which bail has been granted. Strictly speaking, it would be more accurate to refer to those offences as ‘alleged offences’. However, the judge’s lapse into shorthand, by referring to the offences as being ‘committed’, could not in the context convey that the judge in some way sentenced the applicant on the basis that he had committed the offences in 2016. His Honour is an experienced criminal lawyer, and it is inconceivable that he could somehow have considered, or proceeded on the basis, that the applicant had been found guilty of the offences for which he was then on bail.
It follows that the applicant has failed to establish the error alleged in ground 2, and that ground must fail.
Further, if, contrary to that conclusion, the applicant had established any such error, it is clear from the judge’s reasons for sentence that such an error played no material role in the determination of the sentence imposed. The judge found that the applicant had ‘very reasonable prospects for rehabilitation’.[12] His Honour did not express any reservation or qualification to that finding arising from the applicant’s antecedents, including the matters for which he was then on bail. His Honour also recognised that part of the punishment would involve the fact that, after rebuilding his life while on bail, the applicant was now required to return to prison. The judge took that factor into account in moderating the sentences imposed on the applicant.[13] It is clear, from the judge’s reasons for sentence, that the principal factors, taken into account by the judge, in deciding to sentence the applicant to a term of imprisonment, and in fixing the length of that term, was his Honour’s assessment of the gravity of the offending, and of the applicant’s moral culpability.
[12]Reasons [41].
[13]Reasons [43].
We should also observe that, if error had been made out on behalf of the applicant, we would not have imposed any lesser sentence than that determined by the sentencing judge.
As his Honour correctly found, the offending in the present case was particularly serious. The two principal offences, that were the subject of charges 1 and 2, were premeditated. The predetermined purpose of the offending was to intimidate Hanns by threats and, if necessary, the use of violence. That intimidation was directed to securing the repayment to the applicant of a substantial drug debt. In carrying out the offence, the applicant, through his co-offender Mus, resorted to the use of threats and force. As a consequence, Hanns suffered quite serious injuries, including a broken nose. The attack on Hanns, in his own home, was vicious and cowardly, involving a wanton resort to violence.
The victim impact statements of Hanns and his mother reveal that each of them have been significantly traumatised by the criminal conduct of the applicant and his co-offender in their home. Hanns has been diagnosed, by two separate psychiatrists, to suffer post-traumatic stress disorder and depression as a consequence of the attack on him. His mother has likewise suffered similar symptoms of ongoing trauma.
The steps taken by the applicant to rehabilitate himself after his release on bail in early 2018 were commendable. They account for the particularly moderate sentences that were imposed on him in respect of both charges 1 and 2. However, as the judge made plain, the sentencing purposes of general deterrence, denunciation and specific deterrence are of significance in criminal offences of the kind committed by the applicant. Taking those matters into account, as we have stated, the sentences imposed by the applicant were moderate. If the occasion had arisen for this Court to re-sentence the applicant, we would not have imposed a different sentence.
For those reasons, ground 2 of the application for leave to appeal must be refused.
Ground 3
Ground 3 is directed to the use which, the applicant contends, the judge made of the threat, referred to in the prosecution opening, uttered by the applicant to Hanns that if he went to the police ‘his mother would go first and then his kids’, and also the threat that if Hanns did not repay the debt that he owed to the applicant ‘he was fucked’.
Counsel for the applicant submitted that the judge erroneously took those threats into account in determining the gravity of the offending and the degree of the applicant’s moral culpability. The applicant relied on two passages, in the judge’s reasons for sentence, in support of that proposition.
First, in outlining the facts of the offending at the commencement of the reasons, the judge stated:
In the opening, it was alleged that you stated that if the money was not paid, the victim’s mother would, ‘go first’ and, ‘then his kids’. The victim agreed that there would be, ‘no cops’. Mr Kassimatis QC who appeared with Mr Allen on your behalf submitted that I should not have regard to these utterances as, if the Crown wish to rely on them, they should have been the subject of a separate charge or charges of threat to kill. In this respect I was referred to Newman v Turnbull [1997] 1 VR 146 (sic). As noted however in other cases of the Court of Appeal, it is permissible for a judge on sentence to have regard to all of the circumstances that flow directly from the criminal conduct constituting the offence charged. What I will not do is punish you for an offence with which you have not been charged.[14]
[14]Reasons [11].
Secondly, the applicant relied on the passage from the reasons, to which we have earlier referred, in which the judge stated that while the applicant was not to be punished for conduct with which he was not charged, it was ‘necessary to set out the full context in which your offending occurred to make it clear that your offending is very serious indeed’.[15]
[15]Reasons [25].
Counsel for the applicant noted that the threats by the applicant to Hanns each constituted a separate offence under s 20 of the Crimes Act. The applicant had not been charged with those offences. Counsel submitted that by taking those ‘circumstances’ into account in determining the gravity of the offending, the judge offended the principles stated in cases such as R v De Simoni[16] and R v Newman & Turnbull.[17] In particular, it was submitted that the judge erred by taking the threats into account as circumstances that aggravated the gravity of the offending for which the applicant was to be sentenced.
[16](1981) 147 CLR 383 (‘De Simoni’).
[17][1997] 1 VR 146 (‘Newman’).
In response, counsel for the respondent contended, first, that the judge was entitled to take into account the threats made to Hanns, because they were part of the conduct that constituted the charge of robbery. Counsel for the respondent noted that the threats were uttered to Hanns before the applicant and his co-offender took possession of the items of value that belonged to Hanns which they found when searching the garage, namely, the quantity of cash, the iPhone, the perfumes and the illegal drugs. Accordingly, it was submitted that the judge, in referring to those matters, did not offend the principle stated by the High Court in De Simoni or by this Court in Newman.
Counsel for the respondent further submitted that, insofar as the judge took into account the making of the threats by the applicant as factors that aggravated the gravity of the offending, his Honour was entitled to do so, because the making of such threats was a less serious form of offence than that for which the applicant was charged, namely robbery and recklessly causing serious injury. Counsel contended that the principle stated by the High Court and by this Court, in the cases referred to, did not preclude a judge taking into account circumstances, which might constitute a separate charge, and did not reveal the separate commission by the offender of a more serious offence.
In addressing those submissions, it is important, first, to determine precisely what the sentencing judge meant, in his observation that it was permissible to have regard to ‘all the circumstances that flow directly from the criminal conduct constituting the offence charged’.
In the circumstances of the case, there are a number of different respects in which the threats, made to Hanns, might have been relevant to the sentencing exercise, without involving a consideration of the principles discussed in cases such as De Simoni and Newman. First, as counsel for the respondent has noted, according to the prosecution opening, the threats were uttered to Hanns before the applicant and his co-offender removed the items that were stolen from the garage. In that way, the threats might be characterised as part of one element of the offence of robbery that was charged. Further, as we have noted, as a consequence of the overall conduct of the applicant and his co-offender, including the threats, both Hanns and his mother suffered significant ongoing psychological injury, which the judge was required to take into account pursuant to s 5(2)(daa) of the Sentencing Act 1991.[18]
[18]R v Sessions [1998] 2 VR 304, 313 (Hayne JA).
However, it is not clear that the judge, in fact, took the threats into account in either such manner. Rather, his Honour regarded them as part of the overall ‘context’ or ‘circumstances’ of the offending.[19] If, and to the extent that, the judge, in that way, considered that those threats aggravated the gravity of the offending, and compounded the applicant’s moral culpability, we consider that such an approach was (or would have been) in accordance with the principles stated in the authorities to which we were referred.
[19]Cf R v Sotto [2009] VSCA 70 [8].
In De Simoni, the offender pleaded guilty to a charge of robbery. The Criminal Code (WA) provided two penalties for the crime of robbery, with a more substantial penalty being prescribed for robbery accompanied by circumstances of aggravation. Wounding was defined as one of such circumstance. In sentencing the offender, the trial judge took into account, not only that violence was used in the course of the robbery, but that the victim was wounded as a consequence of that act of violence. The High Court (by a majority) held that although the trial judge was entitled to take into account the use of violence by the offender in commission of the offence, he was not entitled to take into account, as an aggravating factor, the wounding that was a consequence of it.
The relevant principle was stated by Gibbs CJ (with whom Mason and Murphy JJ agreed) as follows:
… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[20]
[20]De Simoni (1981) 147 CLR 383, 389.
The qualification stated by the Chief Justice, in the last sentence of that passage, was repeated by his Honour later in his judgment where it was stated:
It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury’s verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury’s verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.[21]
[21]Ibid 392.
In R v Teremoana,[22] Cox J (with whom Jacobs J agreed) summarised the relevant principles as follows:
Applying these principles to the facts of a particular case has sometimes caused difficulty. … However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged.[23]
[22](1990) 54 SASR 30 (‘Teremoana’).
[23]Ibid 37–38.
That passage, from the judgment of Cox J in Teremoana, was endorsed by the Court of Criminal Appeal in R vMedcraft[24] and by this Court in Newman.[25]
[24](1992) 60 A Crim R 181, 187–8.
[25][1997] 1 VR 146, 152 (Winneke P).
In Newman, the applicants pleaded guilty to one charge of aggravated burglary, and one charge of intentional and unlawful damage to property. In the course of the burglary, Newman struck the householder with an axe handle, and Turnbull joined in the attack. As a consequence, the victim suffered a broken nose and bruising. In his sentencing remarks, the judge took into account that the two applicants had ‘launched quite a fearsome attack’ on the members of the household which was the subject of the aggravated burglary. The Court of Appeal held that by doing so, the judge had gone beyond permissible limits in taking into account the serious assault in which each applicant had participated.[26] Winneke P stated the relevant principles as follows:
The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted:
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
See R v De Simoni(1981) 147 CLR 383 at 389, per Gibbs CJ.[27]
[26]Ibid.
[27]Newman [1997] 1 VR 146, 150.
It is significant that, in that passage, Winneke P included the qualification stated by Gibbs CJ in De Simoni, namely, that the circumstances of aggravation, which may not be taken into account, are those which would warrant a conviction for ‘a more serious offence’. Clearly, in Newman, the uncharged assault on the victim (which was described by the sentencing judge as ‘ thuggery’) constituted separate offending that was just as serious as the aggravated burglary, if not more so.
The foregoing review of the authorities indicates that the principle, that a sentencing judge should take into account all the relevant circumstances concerning the commission of the offence for which the offender has been charged, does not permit the judge to take into account, by way of aggravation, circumstances which would have warranted the conviction of the offender for a more serious offence. As Winneke P observed in Newman, it is not, generally, easy to delineate where the permissible consideration of circumstances surrounding the commission of an offence ends, and punishment for an uncharged offence commences.[28] Ultimately, the question is one of fact, degree, and fairness.[29] However, it is clear that the principle does not proscribe a judge taking into account, as an aggravating circumstance, conduct which may constitute some uncharged offence, but which, properly considered, formed part of or was connected with the offending, and which constituted offending that was of lesser seriousness than the offence that has been charged.[30]
[28]Newman [1997] 1 VR 146, 152.
[29]Ibid; see also Semaan v The Queen [2017] VSCA 261 [91].
[30]See also Rodriguez v DPP (2013) 40 VR 436, 444 [27]–[29]; R v Heblos (2000) 117 A Crim R 49, 55 [33] (Eames AJA); DPP v McMaster (2008) 19 VR 191, 200 [41] (Ashley JA); Pollard v The Queen [2010] VSCA 156 [23].
A clear illustration, of the application of those principles, is the decision of this Court in R v Birnie.[31] In that case, the applicant embarked on a spree of criminal conduct, in the course of which he snatched from and stole a bag belonging to an elderly female pensioner. When the applicant returned to his vehicle, he was pursued by the pensioner who approached the vehicle, and banged on its window. The applicant backed his vehicle out at a fast speed in order to make good his escape, and in doing so, knocked the old lady to the ground, and ran over her. As a consequence of the injuries sustained by the pensioner, she subsequently died in hospital. The applicant then drove off at a high speed in order to evade detection and arrest.
[31](2002) 5 VR 426.
In respect of that offending, the applicant was charged with theft and culpable driving causing death. As a result of an error in the sentencing judge’s reasons, which is not relevant for the purposes of this application, it fell to the Court to re-sentence the applicant. In determining that question, Ormiston JA (with whom Charles JA and O’Bryan AJA agreed) gave consideration to the question whether, in determining the gravity of the offence of culpable driving, it was permissible to take into account the applicant’s failure to stop after the accident, and render assistance. His Honour concluded that question in the affirmative, stating:
… it seems a very fine line in this case between what was involved in the actual driving by the applicant and what might properly be characterised as post-offence conduct which was capable of being separately charged. Cases such as R v De Simoni and R v Newman & Turnbull, cited on behalf of the applicant as relevant to this issue, do not deny, indeed clearly accept, that a sentencing judge is bound to take into account all the circumstances relevant to the commission of the offence, but, where there are circumstances of aggravation which might have led to a more serious count or to a separate count, then it is not proper or fair to sentence on the basis of an offence for which the accused has not been charged. The suggested additional offences in the present case cannot be said to be charges involving any significant element of aggravation, indeed they are comparatively minor charges ordinarily heard in magistrates courts. If they had been charged in the present case, it is highly unlikely that any sentence imposed would be treated as other than concurrent, unless it can be said that the subsequent events can never be looked at to explain, qualify or characterise the nature of the offending on the principal count... In this case, … [t]he later events … relevantly demonstrated the intention of the applicant at the time of his culpability in committing the charged offence of death by culpable driving. What he did as he drove out of the car park merely served to emphasise that from the outset he would brook no interference and would drive off regardless of the consequences … I would therefore propose to take note in resentencing the applicant of the events which took place after the actual running over of the elderly victim to the extent that they throw light on his intention at the time and the criminality involved in committing the offence of causing death by culpable driving.[32]
[32]Ibid 432–3 [15]–[17].
Applying those principles to the present case, if the judge did in fact take into account the threats made to Hanns, as an aggravating circumstance, we do not consider that his Honour thereby fell into error. For the reasons already discussed, the two principal offences, to which the applicant pleaded guilty, namely the robbery and causing injury recklessly, were serious. As the judge correctly concluded, the applicant committed the robbery in the company of the co-offender whose role was to provide ‘muscle’ to intimidate Hanns. The level of intimidation and force that was ultimately employed (including placing Hanns in a headlock) were serious aspects of the offence of robbery. The degree of violence inflicted on Hanns, and the injuries sustained by him, were important features of gravity attaching to the charge of causing injury recklessly.
It must be accepted that the threats by the applicant to Hanns were reprehensible, particularly the threat that was directed to causing harm to Hanns’ children and mother. However, considered in context, those threats were of less gravity than the circumstances in which the two offences were otherwise committed. Further, the threats accompanied the offending, particularly the robbery, and were, substantially, if not inextricably, connected with the offending. They illustrated the degree and nature of the intimidation that was a central factor in the offence of robbery for which the applicant was sentenced. For those reasons, if the judge did take into account the making of those threats to Hanns, he did not thereby offend the principles to which we have referred, as stated by the High Court in De Simoni and this Court in Newman.
For those reasons, ground 3 is not made out.
Summary of conclusions
For the foregoing reasons, the applicant has failed to establish any of the proposed grounds of appeal relied on. The application for leave to appeal against sentence must, accordingly, be refused.
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