Frost v The Queen
[2020] VSCA 53
•20 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0221
| ALIX FROST | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2019 0014
| SHAFRIN DEEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 March 2020 |
| DATE OF JUDGMENT: | 20 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 53 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1558 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Sentence – Appellant and applicant co-offenders – Aggravated burglary – At applicant’s request, appellant entered complainant’s room without force with intent to assault complainant – Appellant armed with taser – Pleas of not guilty – Other charges – Appellant and applicant sentenced to 8 years’ imprisonment for aggravated burglary charge – Total concurrency for sentences for other charges – Non-parole period of 6 years – Gravity of offending.
CRIMINAL LAW – Appeal – Sentence – Whether appellant’s sentence of 8 years’ imprisonment for aggravated burglary manifestly excessive – Appellant’s appeal allowed – Appellant resentenced to 5 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months.
CRIMINAL LAW – Appeal – Sentence – Whether applicant’s sentence of 8 years’ imprisonment for aggravated burglary manifestly excessive – Whether judge failed to take into account applicant’s period of 8 months and 19 days in immigration detention following arrest – Whether principle of parity infringed – Appellant relevant prior convictions, applicant no criminal record – Appellant and applicant disadvantaged backgrounds – Appellant committed greater number of additional offences associated with aggravated burglary – Applicant’s appeal allowed – Applicant resentenced to 5 years’ imprisonment with non-parole period of 3 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Frost: | Mr D Sala | Valos, Black & Associates |
| For the Applicant Deen: | Ms M O’Brien | Stary Norton Halphen |
| For the Respondent: | Mr J Gullaci | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
NIALL JA:
Introduction and summary
On 28 May 2018, after a trial before a Country Court jury, the appellant Alix Frost was found guilty of charges 1 and 4 set out in the following table. She pleaded guilty to charges 2, 5 and 6 and summary charges 4 and 8. On 21 September 2018, she was sentenced in accordance with that table.[1]
[1]DPP v Deen and Frost [2018] VCC 1558 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77] 25 years 8 years Base 2 Theft (motor vehicle) [Crimes Act s 74(1)] 10 years 1 year Nil 4 Recklessly cause injury [Crimes Act s 18] 5 years 18 months Nil 5 Theft (two mobile phones, car keys and wallet) 10 years 6 months Nil 6 Theft (registration plates) 10 years 6 months Nil Related summary charges 4 Commit indictable offence on bail [Bail Act 1977 s 30B] 3 months 1 month Nil 8 Possess prohibited weapon [Control of Weapons Act 1990 s 5AA] 2 years 1 month Nil Total effective sentence: 8 years’ imprisonment Non parole period: 6 years Pre-Sentence detention declaration: 42 days
Also on 28 May 2018, after a trial before a Country Court jury, the applicant Sharfin Deen was found guilty of the charges set out in the following table. On 21 September 2018, he was sentenced by the same judge in accordance with that table.[2]
[2]The sentencing remarks deal with both Deen and Frost.
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years 8 years Base 2 Theft (motor vehicle) 10 years 1 year Nil 4 Recklessly cause injury 5 years 1 year Nil Total effective sentence: 8 years’ imprisonment Non parole period: 6 years Pre-Sentence detention declaration: 49 days
On 6 February 2019, Frost was granted leave to appeal by Kyrou JA on the sole ground that the sentence imposed on charge 1, the total effective sentence and the non-parole period are manifestly excessive.
Deen has sought leave to appeal against sentence on three proposed grounds. The first ground alleges that the judge erred in failing to take into consideration the time that Deen had spent in immigration detention. The second ground alleges that the total effective sentence offends against the principle of parity. The third ground alleges that the sentence imposed on charge 1 is manifestly excessive.
For the reasons that follow:
(a)In respect of Frost, the appeal will be allowed and the appellant will be resentenced as set out at [53] below.
(b)In respect of Deen, leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [73] below.
Circumstances of the offending
Deen and Frost were friends. Deen lived in a flat in Seddon with the complainant, Salim Jihar, and another male, Kishwar Ziard. In the early morning of 26 January 2017, Deen woke the complainant and Ziard complaining that someone had stolen his phone and used his credit card. He accused the complainant, but the complainant denied the accusation.
Later that day, Deen and Frost exchanged text messages and agreed that Frost would come to the flat with a female associate and ‘stand over’ the complainant with a taser and ‘smash him’. It was also agreed that Frost could steal the complainant’s motor vehicle.
Early that evening, while it was still daylight, Frost and the female associate attended the flat. They entered the complainant’s bedroom where Frost, armed with a taser that resembled a mobile phone, demanded that the complainant return Deen’s mobile phone. Deen was standing near the doorway to Ziard’s bedroom or was in his bedroom when the women entered the complainant’s bedroom. The complainant denied having the phone and Frost and the female associate started punching him. Frost punched the complainant in the face and used the taser on his hand. The complainant ran out of the flat and was chased by the two women.
Frost stole from the complainant’s bedroom the keys to his motor vehicle, two mobile phones and a wallet, and drove off in the vehicle. Later that night, Frost removed the number plates from a car belonging to another person and affixed them to the complainant’s vehicle.
On 27 January 2017, Frost was arrested and interviewed. She admitted to attending the flat to confront the complainant but stated that she had punched him and used the taser in self-defence. She admitted to taking the keys, the two mobile phones and wallet. She said that she took the vehicle in the hope that the complainant would return Deen’s mobile phone.
On 28 January 2017, Deen was arrested and interviewed. He said that he had communicated to Frost his belief that the complainant had stolen his phone and wallet and that she attended the flat to ask for the return of these items. Deen stated that he was in his bedroom at the time of the offending but that he had heard a fight between Frost, the female associate and the complainant.
Frost’s personal circumstances
Frost was aged 29 at the time of the offending and 30 at the time of sentence. She is the youngest of three siblings. Her father was an alcoholic, abused cannabis for many years and had a gambling addiction. Frost was sexually abused by her sister from age four to 11. When she was 18, she confronted her sister about the abuse and they repaired their relationship. Her parents separated when she was 12.
Frost began using cannabis and drinking alcohol at age 12. She began using other illicit substances including ecstasy, amphetamine, methylamphetamine and cocaine at 19.
Frost was bullied at school due to rumours about her promiscuity. She commenced a junior certificate at TAFE, however fell pregnant and discontinued her studies. She worked for a hairdresser for a short time and engaged in sex work for several years from age 19. She recommenced sex work for a period in 2015 and has been unemployed since that period.
Throughout her adolescence, Frost had multiple abusive partners. At the age of 13 or 14 she was raped and held hostage for three days by cousins of her then boyfriend. She fell pregnant three times during her teenage years and these pregnancies either miscarried due to domestic violence or were terminated.
When she was 20, Frost commenced a relationship with her first husband, who was physically and psychologically abusive. They divorced approximately six years later and have two children of that relationship who live with their father. Frost married her second husband in December 2016. This relationship was also characterised by physical, psychological and emotional abuse. Frost applied for an intervention order against her second husband in around August 2017 and was placed in crisis accommodation. Around this time she miscarried due to severe anxiety and trauma caused by his violent and terrorising behaviour.
Frost commenced offending at the age of 19. She has prior convictions including for drug offences, weapons offences, theft, burglary, driving offences, dishonesty offences and recklessly causing injury. At the time of the current offending she was on bail and subject to a community correction order (‘CCO’). At the time of sentence she was serving a sentence of 11 months for four burglary offences. That sentence was imposed on 13 March 2018 and she was due to be released on 13 February 2019.
Frost has experienced a number of medical issues including bladder and kidney infections and injuries to her legs as a result of being shot in July 2016. She has a history of suicide attempts and reported that she first attempted suicide when she was 17. In her report dated 28 July 2018, psychologist Carla Ferrari stated that Frost had a ‘host of acute and chronic mental health problems’ and at the time of the offending she reported to have been exhibiting symptoms of a recurrent untreated depressive disorder and post-traumatic stress in addition to severe anxiety.
Frost participated in an intensive residential drug rehabilitation program between 19 February 2018 and 19 July 2018 while on remand.
Deen’s personal circumstances
Deen was aged 32 at the time of the offending and 34 when he was sentenced. He was born in Sri Lanka and is the second eldest of four siblings. He had a normal childhood. He left his parents’ home when he was in his twenties and lived with his wife. They have two children who currently reside in Sri Lanka with his wife. Deen completed secondary school and a diploma in Information Technology. He went on to operate several of his own businesses.
In 2011, Deen was working for a non-government organisation in a war zone in Sri Lanka when he was kidnapped by the Sri Lankan military and tortured. In 2013, he arrived in Australia where he worked in the property industry before starting his own business. He planned to reunite with his wife and children in Australia once his residency was approved. However, on 10 November 2017 his bridging visa was cancelled after he was charged with the present offences and a number of sexual offences. The sexual offences were subsequently permanently stayed.
Deen was placed in immigration detention from around 15 November 2017 until the date of his plea hearing on 3 August 2018.
Deen has been diagnosed with Arteriovenous Malformation (‘AVM’) and is prescribed medication to manage his seizures. In his report dated 18 September 2018, psychologist Dr Aaron Cunningham said that Deen had previously attempted suicide but Deen stated that he was not experiencing significant symptoms of trauma and did not require psychological treatment. However, Dr Cunningham stated that Deen would benefit from a disposition that facilitated his rehabilitation.
Deen has no history of drug or alcohol abuse and has no prior convictions. Prior to his immigration detention, he had stable employment.
Plea hearing
At the plea hearing, in relation to the gravity of the aggravated burglary, Frost submitted that there are more serious and less serious examples of that offence and the present offending fits in the middle. Deen conceded that the offending was serious. The prosecutor submitted that the aggravated burglary was at ‘the high end of the mid-range of seriousness …[p]erhaps going into the high end range’.[3]
[3]Transcript of Proceedings (3 August 2018) 24.23–24.25.
Deen tendered an outline of submissions which became Exhibit D1. The outline relevantly stated the following in relation to immigration matters:
On the 27th of July 2017 [Deen] was taken into immigration following criminal charges of sexual penetration of a child under 16 years and other associated telecommunications offences. [Deen] vigorously maintained his innocence in relation to the charges which were permanently stayed in this Court by His Honour Judge Paul Lacava on the 1st of August 2018. In relation to these charges [Deen] was detained for a period just over 12 months. It is submitted that this period of detention should be taken into consideration by the Court as Renzella time.
…
[Deen] has been given political asylum here in Australia. During his later years in Sri Lanka he was the victim of a kidnapping, torture and ongoing threats from the Sri Lankan Army. Following his conviction in this matter [Deen] has faced great uncertainty and stress in relation to his immigration status.[4]
[4]Some of the temporal details in the submission are incorrect.
Deen also tendered a letter dated 4 September 2018 from Refugee Legal, which set out a chronology of Deen’s immigration history and the risk that he faced of deportation to Sri Lanka or indefinite detention in an immigration facility as a result of the charges.
In relation to Deen’s ‘immigration status’, his counsel stated that the ‘uncertainty regarding deportation’ was ‘weighing heavily on him’ and that this was a matter that the judge was able to take into account.[5] In response to counsel’s reference to Deen’s detention being treated as ‘Renzella time’, the judge responded ‘[y]es, it seems obvious’.[6] He also described the period of detention as time ‘already served’.[7]
[5]Transcript of Proceedings (3 August 2018) 29.10–29.14.
[6]Transcript of Proceedings (3 August 2018) 36.1.
[7]Transcript of Proceedings (3 August 2018) 40.26.
Sentencing remarks
The judge characterised the aggravated burglary as the ‘major charge’ and a ‘serious aggravated burglary’.[8]
[8]Sentencing remarks [9].
In determining the seriousness of the offending, the judge took into account the following features:
(a) the presence of the taser used by Frost;
(b)both offenders’ knowledge that the complainant was in the bedroom when Frost entered;
(c)both offenders’ intention to threaten or assault the complainant if necessary in an attempt to make him return the items that Deen alleged he had stolen;
(d)in return for Frost carrying out Deen’s request, it was arranged between them that Frost could take the complainant’s vehicle, which was essentially a reward for her role in the aggravated burglary; and
(e)Frost, with Deen’s knowledge, entered the complainant’s bedroom in company at approximately 7:00 pm when the complainant was alone.[9]
[9]Sentencing remarks [10].
The judge noted that, as the offenders chose to plead not guilty, they were unable to utilise remorse as a mitigating factor. However, he stated that this was not a negative factor that weighed against them.
The judge considered that, given the seriousness of the offending, denunciation, general deterrence and — in Frost’s case — specific deterrence were necessary factors to take into account. He also took into account the submission that the sentence should have regard to the principle of totality and not be crushing.
The judge stated that Frost’s background was ‘one of difficulty’ and that prior to becoming drug addicted, she had not offended.[10] The judge noted that, during her time in prison, Frost had returned a significant number of negative urine samples and appeared to have remained drug free. He regarded this as ‘a positive in regard to [Frost’s] future’.[11] The judge also gave consideration to Frost’s relatively young age as a factor relevant to her rehabilitation.
[10]Sentencing remarks [29].
[11]Sentencing remarks [29].
The judge accepted that Deen was the instigator of the offending but also found that Frost had ‘applied herself with some relish to participating in such crimes’.[12] He found that they were equally culpable for the aggravated burglary offence. He stated:
[B]oth parties are guilty of the same level of objective criminality. Clearly, the organiser of the aggravated burglary, was Mr Deen, however, Ms Frost, as I say, willingly participated in it and it seems to me that the appropriate way to see this crime of aggravated burglary, is as being a complicit crime.[13]
[12]Sentencing remarks [13].
[13]Sentencing remarks [24].
The judge acknowledged that Deen had no prior convictions. In relation to Deen’s submissions on the plea regarding immigration, the judge said the following:
Insofar as the plea conducted by [counsel for Deen], tendered was her written submissions which … were Exhibit D1, and today has been tendered the additional material from the psychologist and the material in regard to the status of Mr Deen from an immigration point of view, and I take all those matters into account. In particular, insofar as his immigration status, given the role of the current Government’s political determinations, it is clear that given the conviction that will be recorded, the deportation of Mr Deen seems assured, unless he has some success in the Refugee Tribunal.[14]
[14]Sentencing remarks [17].
The judge accepted that due to his medical condition, Deen will require particular medical attention and monitoring while he is in prison.
FROST’S APPEAL AGAINST SENTENCE
In support of the sole ground of appeal — manifest excess — Frost submitted that the sentence failed to give proper weight to the steps that she had taken towards rehabilitation since being remanded in custody. She argued that the judge appeared to be genuinely impressed with her attempts to reform, in particular her abstinence from illicit substances while in custody. Frost contended that this was highly relevant to considerations of rehabilitation and community protection and warranted an appropriate reduction in sentence, which was not afforded by the judge.
Frost acknowledged that the offending the subject of charge 1 was serious, however contended that it was not such an egregious example that warranted a sentence towards the upper end of the sentencing range.
The Crown submitted that whilst Frost’s sentence could be viewed as being towards the higher end, it was ultimately within the range of sentences reasonably open to the judge. The Crown contended that the judge correctly observed that the aggravated burglary featured a number of aggravating factors and that it was a serious example of that offence.
The Crown contended that, even if error were established in relation to the sentence imposed on charge 1, the ‘merciful’ orders for total concurrency in relation to the other charges resulted in a total effective sentence and non-parole period that were reasonably open. According to the Crown, the Court has power to dismiss Frost’s appeal even if it decides that the sentence for charge 1 is manifestly excessive provided that the Court finds that the total effective sentence is not manifestly excessive. The source of the power was said to be s 280(1)(b) of the Criminal Procedure Act 2009 (‘CPA’). Section 280 relevantly provides as follows:
280 Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
…
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court of Appeal considers ought to be made.
…
The Crown argued that the judge took into account Frost’s efforts to address her drug addiction as well as her relatively young age in assessing her prospects of rehabilitation. However, according to the Crown, given the seriousness of the offending and Frost’s relevant criminal history, the judge was entitled to find that rehabilitation was outweighed by the need for general deterrence, specific deterrence and denunciation.
The Crown highlighted the aggravating factors that were present in the offence of aggravated burglary and submitted that it was clearly a serious example of that offence. It was argued that the offending was also aggravated by the fact that it was committed while Frost was serving a CCO.
Decision in relation to Frost
In our opinion, the sentence of 8 years’ imprisonment for the aggravated burglary offence is manifestly excessive.
We will first consider the gravity of the offending. We readily accept that all aggravated burglaries are serious offences, as reflected in the maximum penalty of 25 years’ imprisonment. However, as with all offending, some instances of the offence of aggravated burglary are more serious than others. The offending in the present case does not fall at the ‘more serious’ end of the spectrum.
We also accept that the offending possessed the features identified by the judge, which are set out at [30] above. It also involved an element of vigilantism, which heightened the importance of general deterrence as a sentencing consideration,[15] and was committed while Frost was on bail and serving a CCO. However, there was an absence of some features which are often found in very serious instances of the offence of aggravated burglary. In particular:
[15]See Hamid v The Queen [2019] VSCA 5, [47]–[49].
(a)The offence occurred during daylight while the complainant was awake rather than during the middle of the night.
(b)Frost and her female associate entered the flat at the invitation of Deen, who was one of the occupants, rather than breaking into the property. They also entered the complainant’s room without the use of force.
(c) Frost and her female associate did not disguise themselves.
(d)The weapon carried by Frost was a taser that resembled a mobile phone. This weapon, if it was recognised by the complainant as such at the time Frost and her associate entered his room, would have been less frightening than other weapons such as a firearm or a knife. While a taser is a dangerous weapon, it is less dangerous than many other weapons.
(e)There was no history of threats or actual violence by Frost against the complainant such as to make him particularly frightened of her.
We will next consider Frost’s personal circumstances. Her relevant criminal history heightened the need for specific deterrence as a sentencing consideration, in addition to general deterrence, denunciation and protection of the community. Further, as she pleaded not guilty, she was not entitled to the moderation in her sentence that would have resulted from a guilty plea. On the other hand, she had a disadvantaged background and had made considerable progress in her rehabilitation while in custody.
When appropriate weight is given to all of the above considerations, as well as the maximum penalty of 25 years’ imprisonment, a sentence of 8 years is well outside the range of sentences reasonably open to the judge for the offence of aggravated burglary. Even with the increase in sentences for that offence in recent years following cases such as Hogarth v The Queen[16] and Director of Public Prosecutions v Meyers,[17] a sentence of that magnitude has usually been imposed for offending that involves some of the attributes set out at [45] above.
[16](2012) 37 VR 658, 673–4 [58]–[62]; [2012] VSCA 302.
[17](2014) 44 VR 486, 495 [36]–[37], 498 [47]–[49]; [2014] VSCA 314.
One possible reason why the judge erred in the sentence he imposed for charge 1 is the approach he adopted in arriving at the total effective sentence of 8 years’ imprisonment. Although he imposed separate sentences for each of the other charges — which are not subject to challenge — he ordered total concurrency for those sentences. The period of concurrency totalled 3 years and 8 months’ imprisonment. This approach is problematic because the punishment for the entire offending was attributed to charge 1, with no punishment for the separate offending constituted by the other charges. The result was a sentence that was disproportionate to the offending the subject of charge 1.
Whilst most of the offending occurred in the complainant’s room as part of a single incident, some of the offending — particularly the thefts of the motor vehicle and number plates — occurred after Frost departed the room. As the judge determined that 8 years’ imprisonment was an appropriate total effective sentence, if he had ordered some cumulation for each of the other offences — appropriately moderated to comply with the principle of totality — he could not have imposed a sentence of 8 years’ imprisonment for charge 1.
We reject the Crown’s submission that s 280(1)(b) of the CPA empowers this Court to dismiss Frost’s appeal even if the Court decides that the sentence for charge 1 is manifestly excessive provided that the Court finds that the total effective sentence is not manifestly excessive. That is because s 280 deals with refusal of an application for leave to appeal and has no application to a substantive appeal following the grant of leave to appeal. As we have stated, in the present case, Kyrou JA granted Frost leave to appeal.
Under s 281(1) of the CPA, this Court can dismiss an appeal where it is satisfied that, notwithstanding there is an error in the sentence first imposed, a different sentence should not be imposed. We need not consider whether s 281(1) applies to a case such as the present where the total effective sentence is the same as the sentence for the sole charge in respect of which the appellant has appealed, as a result of complete concurrency being ordered in relation to the sentences for the other charges.[18] That is because, in the light of the close connection between all the charges, and Frost’s personal circumstances, the total effective sentence is manifestly excessive.
[18]Difficult issues arise in relation to the application of s 281(1) of the CPA in such a situation. See Ludeman v The Queen (2010) 31 VR 606, 613–15 [50]–[55], 616 [62]–[65], 619–21 [82]–[86]; [2010] VSCA 333; DPP v Jones (2013) 40 VR 267, 273–6 [15]–[23]; [2013] VSCA 330; Hawke v The Queen [2019] VSCA 276, [23]–[25], [32]–[34].
For the above reasons, the appeal will be allowed and the sentence of 8 years’ imprisonment imposed on Frost for charge 1 will be set aside.
Having regard to the considerations to which we have referred and the additional evidence we received for the purposes of resentence — which showed that Frost has made further progress towards rehabilitation since she was sentenced — she will be resentenced to 5 years and 6 months’ imprisonment for charge 1. As the judge has ordered complete concurrency in respect of the sentences for the other charges, the total effective sentence will become 5 years and 6 months’ imprisonment. We will fix a non-parole period of 3 years and 6 months.
DEEN’S APPEAL AGAINST SENTENCE
Deen’s proposed grounds of appeal are in the following terms:
1 The learned sentencing judge erred:
(a)in failing to take into consideration the 10 months[19] during which the applicant was detained in immigration because of these offences and other sexual offences which were at the time pending but which were ultimately stayed by his Honour Judge Lacava on 1 August 2018; and
(b)in not characterising the above time in immigration as Renzella[20] time.
2The imposition of the same total effective sentence in the case of co-accused Alix Frost gives rise to a justifiable sense of grievance in the case of the applicant.
3The individual sentence on charge 1 is manifestly excessive in light of the applicant’s lack of priors, significant health issues, isolation from family, role in the offending and immigration status, together with other factors in mitigation.
[19]The period of immigration detention was 8 months and 19 days.
[20]This is a reference to R v Renzella [1997] 2 VR 88 (‘Renzella’).
In relation to ground 1, Deen submitted that the judge paid no attention to the 10 month period during which he was in immigration detention and that this offended against the principle in R v Renzella.[21] He acknowledged that, unlike in Renzella, he was not held in custody in a remand facility, but his liberty was nonetheless deprived and the period of detention ought to have been taken into consideration in sentencing.
[21][1997] 2 VR 88. As stated in n 19 above, the period of immigration detention was 8 months and 19 days.
As to ground 2, Deen submitted that the judge’s imposition of the same sentence on both offenders failed to take into consideration the distinction between Frost’s prior criminal history and Deen’s lack of prior convictions. He contended that this gave rise to a justifiable sense of grievance. Contrary to the position he adopted on the plea, Deen conceded that no distinction is to be drawn between his and Frost’s respective roles in the offending.
With regard to ground 3, Deen submitted that the sentence of 8 years’ imprisonment for the aggravated burglary placed it at the higher end of sentences for that offence and failed to have appropriate regard to the following matters:
(a)as the complainant was a flat mate who lived in a shared house, this was not a serious example of aggravated burglary;
(b)Deen did not play an active role in the aggravated burglary, theft or injury caused to the complainant;
(c)Deen was 34 years old at the time of sentence and had no prior convictions;
(d)Deen suffers from a serious neurological condition and in order to successfully manage this condition he will require neuro-surgery which carries substantial risks;
(e)Deen was detained in immigration detention for 10 months;[22]
(f)Deen’s family live in Sri Lanka and he will experience extreme isolation during his term of imprisonment; and
(g)Deen faces great uncertainty in relation to his immigration status and will more than likely be deported or be indefinitely detained at the conclusion of his sentence.
[22]See n 19 above.
In relation to ground 1, the Crown conceded that there was a sufficient nexus between Deen’s period of immigration detention and the current offending in order to entitle him to moderation in sentence based on the principles discussed in Underwood v The Queen [No 2][23] and Sahhitanandan v The Queen.[24] The Crown also conceded that the conditions to which Deen was subjected in immigration detention were restrictive. These concessions were appropriate in the circumstances.
[23][2018] VSCA 87 (‘Underwood’).
[24][2019] VSCA 115 (‘Sahhitanandan’).
The Crown submitted that the judge was aware of the period that Deen had spent in immigration detention as well as the need to take that matter into account in sentencing him and that this was reflected in the sentencing remarks set out at [35] above.
In relation to ground 2, the Crown argued that it was reasonably open to the judge to impose the same sentence on Deen and Frost in relation to the aggravated burglary. According to the Crown, there was nothing in the roles of each offender in the offending or in the personal circumstances that required the judge to differentiate between them in imposing sentence. It was acknowledged that Deen had no prior convictions whereas Frost did, however the Crown highlighted the mitigating factors that Frost had been able to call in aid, including the steps she had taken towards overcoming drug addiction and her young age.
As to ground 3, the Crown made submissions similar to those set out at [39]–[40] above in relation to Frost.
It was further contended that Deen did not have the benefit of a guilty plea and had limited mitigating factors to call upon.
In our opinion, ground 1 is made out.
As the relevance of Deen’s period of immigration detention to the exercise of the sentencing discretion was discussed on the plea and the judge agreed that he was required to take it into account, it would be surprising if he failed to do so. However, for the following reasons we have concluded that he either did not take it into account or failed to do so in a ‘broad and practical way’ as required by the authorities.[25]
[25]See Underwood [2018] VSCA 87, [37]; Sahhitanandan [2019] VSCA 115, [30]–[36].
First, it is clear from our summary of Deen’s submissions on the plea at [26]–[28] above that Deen relied on two aspects of his immigration history, namely his immigration detention and his immigration status. In the paragraph of his sentencing remarks set out at [35] above, the judge specifically referred to Deen’s ‘status … from an immigration point of view’ and went on to say that, due to his ‘immigration status’, Deen’s ‘deportation seems assured, unless he has some success in the Refugee Tribunal’. The judge made no reference to Deen’s immigration detention. This strongly suggests that, although immigration detention was discussed on the plea on 3 August 2018, the judge overlooked it when he delivered his sentencing remarks on 21 September 2018.
Secondly, the judge assessed Frost and Deen as being equally culpable for the offending and did not articulate any material differences either in relation to their roles in the offending or their personal circumstances that warranted differential sentences in relation to the aggravated burglary offence. In the light of this assessment, the fact that the judge imposed the same sentence on Frost and Deen without making any reference to Deen’s immigration detention — which was an important factor in moderation of his sentence — strongly suggests that the judge failed to take it into account.
In our opinion, ground 2 is also made out.
For sentencing purposes, the key similarities between Frost and Deen were as follows:
(a)They were equally culpable for the aggravated burglary offence. Although Frost performed the acts constituting the offence, she did so at the instigation of Deen. Frost also recruited an associate to assist in committing the aggravated burglary.
(b)They both had a disadvantaged background.
(c)They both pleaded not guilty to charge 1.
(d)They were of similar ages.
For sentencing purposes, the key differences between Frost and Deen were as follows:
(a)Frost has significant relevant criminal history whereas Deen had no prior convictions. She was also on bail and serving a CCO at the time of the current offending.
(b)Frost had made significant progress in her rehabilitation. However, unlike Frost, Deen did not have a history of drug use and had stable employment prior to his detention. The judge did not make a finding that Frost’s prospects of rehabilitation exceeded those of Deen.
(c)In relation to the total effective sentence, as Frost was sentenced to a greater number of charges than Deen, the period of concurrency ordered in respect of her exceeded that of Deen by 20 months (6 more months for charge 4, 6 months for each of charges 5 and 6 and 1 month for each of the summary charges). It follows that, from the perspective of all of the charges for which the offenders fell to be sentenced, Frost’s overall criminality exceeded that of Deen.
(d)Only Deen was entitled to moderation of his sentence due to immigration detention.
The above differences in combination provided a compelling case for Deen to be sentenced more leniently than Frost. In the light of those differences, we are satisfied that it was not open to the judge to impose the same total effective sentence on them. Accordingly, the sentence imposed on Deen infringes the parity principle.
Finally, ground 3 is also made out. For the reasons discussed in relation to Frost’s ground of appeal, as well as the two grounds discussed above in relation to Deen, the sentence of 8 years’ imprisonment for charge 1 and the total effective sentence are manifestly excessive.
It follows from the above conclusions that leave to appeal will be granted, the appeal will be allowed and the sentence of 8 years’ imprisonment for charge 1 will be set aside.
Having regard to the considerations to which we have referred and the additional evidence we received for the purposes of resentence — which showed that Deen has served his sentence in protective custody and was hospitalised for 4 weeks following surgery for his AVM condition — he will be resentenced to 5 years’ imprisonment for charge 1. As the judge has ordered complete concurrency in respect of the sentences for the other charges, the total effective sentence will become 5 years’ imprisonment. We will fix a non-parole period of 3 years.
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