Honeysett v The Queen
[2018] VSCA 214
•28 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0183
| DAMIAN HONEYSETT | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST, BEACH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 August 2018 |
| DATE OF JUDGMENT: | 28 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 214 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1006 (Judge Lawson) |
---
CRIMINAL LAW – Sentence – Appellant pleaded guilty to one charge of armed robbery and one charge of theft – Appellant and co-offender robbed liquor store armed with knives – Appellant sentenced to five years’ imprisonment with a non-parole period of three years – Whether sentence manifestly excessive – Whether appellant’s youth, deprived background and Aboriginality appropriately taken into account in mitigation – Whether appellant’s participation in Koori Court process given sufficient weight – R v Morgan (2010) 24 VR 230 considered – Appeal dismissed.
CRIMINAL LAW – Koori Court – Principles to be applied when determining weight to be given to participation in sentencing conversation – Whether judge should seek feedback from Elders after sentencing conversation – Role of ‘Gladue’ reports – Gladue v The Queen [1999] 1 SCR 688 referred to.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Ms F Gerry QC with Ms A Beech | Stary Norton Halphen |
| For the Crown: | Ms R Harper | Mr J Cain, Solicitor for Public Prosecutions |
| Appearing as Amicus Curiae | Mr D Hallows SC with Ms K Ballard | Human Rights Law Centre and Victorian Aboriginal Legal Service |
PRIEST JA
BEACH JA
HARGRAVE JA:
On 25 July 2017, the appellant pleaded guilty in the Koori Court Division of the County Court of Victoria to one charge of armed robbery and one charge of theft. The charges arose out of events that took place on 24 February 2017, involving an armed robbery of a Dan Murphy’s liquor store and using a stolen car to get away.
On 28 July 2017, the appellant was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Armed Robbery | 25 years’ imprisonment | 4 years and 6 months’ imprisonment | Base |
| 2. | Theft | 10 years’ imprisonment | 1 year’s imprisonment | 6 months |
| Total Effective Sentence | 5 years’ imprisonment | |||
| Non-parole period | 3 years | |||
| Pre-sentence detention declared: | 154 days | |||
| s. 6AAA statement: | 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months | |||
| Other relevant Orders: | Compensation of $1052.35 to Dan Murphy’s | |||
The appellant applied for leave to appeal against sentence. A single judge has granted leave to appeal.[1]
[1]Honeysett v The Queen [2018] VSCA 14 (Weinberg JA) (Leave Reasons).
Grounds of appeal
The appellant relies upon the following grounds of appeal:
Ground 1:
The individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive, particularly in view of the following matters:
a) The appellant’s young age (24);
b) The appellant’s tragic personal history;
c) The appellant’s aboriginality;
d)The appellant’s exemplary involvement in the Koori Court process; and
e)The appellant’s evident remorse both through his early plea and his engagement with the Elders during the sentencing conversation.
Ground 2:
The learned sentencing judge erred in ordering six months’ cumulation on charge 2 in all the circumstances.
In our view, ground 2 is no more than a particular of the manifest excess ground. Accordingly, we will consider the appeal on the basis that there is only one ground of appeal, namely, manifest excess.
Summary of the offending
On 24 February 2017, at about 9:15 am, the appellant’s co-offender, Halit Dogan, was captured on CCTV stealing a motor vehicle from a service station on Nepean Highway, Chelsea.
Later that same day at about 2:00 pm, the appellant and another co-offender, Thomas Coumvoulidis, entered a shop in Mount Waverly. Mr Coumvoulidis was captured on CCTV stealing a pair of sunglasses. Shortly after, they met with Mr Dogan and got into the stolen vehicle. The appellant put on a cap, sunglasses, and covered the lower part of his face with a bandanna.
At about 2:24 pm, the appellant and his co-offenders drove to Dan Murphy’s liquor store in Glen Waverley. The appellant ran into the store armed with a knife while Mr Coumvoulidis kept guard at the door. Mr Coumvoulidis was armed with a meat cleaver and was carrying a grocery bag.
The appellant ran to the register, pushed a customer out of the way, pointed the knife at an employee and demanded money from the till. The employee screamed and froze in fear, causing the store manager to approach the register and attempt to remove the cash drawer. The appellant waved the knife around, told the manager to hurry up, and the customer to stay back.
As the manager was having trouble removing the cash drawer, the appellant told her that she ‘had 30 seconds’. One customer heard the appellant say ‘I’m going to count to five’. Another customer said that the appellant started to count from one to five, and said that when he got to five, he would stab the manager.
Once given the cash drawer, the appellant ran from the store and, with his co-offenders, drove away in a northerly direction. The cash drawer contained $1,052.35.
Police recovered the stolen vehicle the next day. The appellant and Mr Dogan were arrested on that day. Both gave ‘no comment’ interviews in relation to the armed robbery.
Mr Coumvoulidis was also arrested soon after and charged with armed robbery. That charge was not proceeded with. Mr Dogan was charged with theft of the motor vehicle. He was not ultimately proceeded against for the armed robbery.
The appellant’s personal circumstances
The appellant was aged 23 at the time of the offending, and 24 when he came to be sentenced.
The appellant was the middle child of three with a younger sister and an older brother. He had been raised, initially, by his mother and father. Both were heavily drug addicted. The appellant had been put in foster care briefly before living with his grandmother in Reservoir. He had attended school until Year 8, but was unable to read or write. When the appellant was still young, he witnessed his father collapse following a brain aneurism, which brought about his death. Since about the age of 16, the appellant had been in and out of custody, and had never maintained consistent employment. He began using amphetamines when only 15 years of age.
The appellant himself had also suffered from substance abuse since his early adolescence. The sentencing judge noted that the context to the present offending was heavy daily methamphetamine (ice) and GHB use. The genesis of the armed robbery was said to be to obtain money to settle a friend’s drug debt.
For such a young man, the appellant has a long list of prior convictions for stealing. Commencing in early 2008, when the appellant was aged 14, he was convicted of theft and burglary (and other offences) in the Melbourne Children’s Court. Prior to the offending at issue, the appellant was convicted of 13 offences involving stealing, variously classified as theft, burglary, robbery, and, most concerningly, two convictions for armed robbery. The first conviction for armed robbery was in November 2011. That offence involved the appellant using a broken bottle to rob a passenger on a tram. He was sentenced to two years’ and nine months in a Youth Justice Centre for that offence. The second armed robbery conviction was in March 2013. By that time, the appellant was aged 20. The offending involved the appellant using a box cutter to threaten a 15-year-old victim while demanding he hand over a mobile phone and remove its password.
The appellant elected to have his plea for the 2013 armed robbery heard in the Koori Court in the County Court. He was sentenced to two years’ imprisonment with a non-parole period of one year. In his sentencing reasons for the 2013 armed robbery, the sentencing judge referred to the appellant’s participation in the 2013 sentencing conversation in the following terms:
As I have already said, I conclude from that conversation that you certainly have insight into your problems and you have a motivation to do something about it. You are currently doing a violence program in gaol, you are doing a drug and alcohol course, you are doing the Aboriginal VCAL. When you finish you want to go and live with your mother and in the conversation you said you possibly had a plastering apprenticeship job to go to, and they are all positive things.
…
The third thing I have to look at is what is called specific deterrence. That is how can I stop you from doing it again or get it into your mind that this sort of behaviour has got to stop? I am convinced that you have got that in your mind and you know that it has to stop. Whether you can do it or not, history will show.[2]
[2]DPP v Honeysett (Unreported, County Court of Victoria, Judge Montgomery, 26 March 2013) [9], [15] (emphasis added).
In addition to the stealing offences, the appellant has convictions for other offences, including knowingly dealing with the proceeds of crime and assault.
Importantly, this case concerns the appellant’s third conviction for armed robbery. Further, as appears above, the sentence for the second armed robbery conviction in 2013 resulted from the appellant’s participation in the Koori Court process. As appears below, that process involves a sentence conversation with the judge and Aboriginal Elders following a plea of guilty. Notwithstanding the firm admonishments and advice given by the Elders to the appellant as part of that process, and the appellant’s statements of intention to reform, no reform has taken place. Indeed, soon after being released from prison for his second conviction for armed robbery, the appellant was convicted on 5 December 2016 of offences involving theft, receipt of stolen goods, obtaining property by deception and assault. He was sentenced to 72 days’ of pre-sentence imprisonment for those offences and was released into the community that day. Within three months, he committed the third armed robbery at issue here.
In summary, the appellant presented to the County Court as a relatively young Aboriginal man from a deprived childhood who regularly abused illicit drugs and had a long and disturbing criminal history. He had already been in adult prison five times and had spent only very short periods in the community. He was fast approaching institutionalisation.
The sentencing judge’s reasons
The sentencing judge considered the appellant’s criminal record to be ‘significant and concerning’, noting that it dated back to February 2008. Her Honour noted, in particular, that a number of the appellant’s prior convictions were for armed robbery, as well as robbery, burglary and theft.
The sentencing judge took the appellant’s guilty plea into account, both for its utilitarian benefits and as demonstrating remorse — which was also evident from the sentencing conversation.
The sentencing judge took into account the appellant’s active engagement with the sentencing conversation in the Koori Court Division. She noted that the sentencing conversation had been ‘challenging’. She concluded that the appellant was genuinely remorseful, and that he had an evolving sense of motivation. He had displayed insight, maturity and contrition. Had the matter proceeded through the usual channels, rather than through the Koori Court, it might have been easier for the appellant. He was asked why he chose the Koori Court process, and said that he wanted to explain himself. Specifically, the sentencing judge stated:
You elected to have your matter heard in the Koori Court Division of this Court and a sentencing conversation took place in the presence of two Elders and respected persons. In doing so you consented to that matter being dealt with in that manner and you participated in a sentencing conversation. The Court of Appeal in this State has recognised that such a conversation is designed to further the reformation of an aboriginal offender.[3]
The Elders and respected persons, Auntie Pam Peterson and Uncle Lloyd Hood were very challenging and you were very respectful towards them and participated genuinely in the sentencing conversation. Such participation is not easy, indeed it is challenging and your real participation in the process is a factor that mitigates punishment.
It was obvious to me, from the way in which you participated in the conversation, that you were truly sorry for what you had done and that you do have an evolving sense of wanting to do something about making real changes in your life. In part that is evidenced by the fact that you are now drug free and you have expressed a willingness to deal with your underlying problems.
…
You expressed a strong desire for the future, to obtain secure employment, accommodation, and to remain drug-free. You openly acknowledged that you have been caught up in a vicious cycle of heavy drug use, offending and gaol, and you have expressed a desire for that to stop.
When challenged by both Elders you openly acknowledged that your actions would have caused great fear to the cashier. You told the Elders that you were attempting to undertake programs whilst you were in custody, but it had been difficult because of your status as a remand prisoner. Both Elders emphasised the need for you to formulate a plan for your future and the need to stop taking drugs and to obtain better friends. You need to think about employment options and programs that will address what drives your offending behaviour.[4]
[3]R v Morgan (2010) 24 VR 230 (Morgan).
[4]DPP v Honeysett [2017] VCC 1006 [5]–[7], [30]–[31] (citations in original) (Sentencing Reasons).
The sentencing judge said that she gave full weight to what she described as the appellant’s ‘difficult childhood and impoverished and dysfunctional family life’. This was, in large part, due to his parents having had serious drug problems. The appellant’s mother had died from a heroin overdose in 1997, when he was only four years old. His father had been in and out of jail throughout the appellant’s early life. His father died in 2009. Specifically, the judge stated:
In terms of your background, I have given you full weight for the effects of your profound childhood deprivation. Those effects do not diminish over time. It has undoubtedly impacted upon you and your development and upon your choices that you have made in respect to drug taking and offending. I have moderated the need to emphasise both general and specific deterrence and there is a slight reduction in moral culpability. Nonetheless, I must take into consideration other sentencing factors, such as the need to provide just punishment and also for the protection of the community.[5]
[5]Ibid [43].
The sentencing judge noted that the appellant had terrorised those customers and employees who were present at the Dan Murphy’s store at the time of the robbery. In particular, the store manager suffered from ongoing anxiety and a heightened sense of stress. She stated in her Victim Impact Statement that she was panicked by loud noises, and had become hyper-vigilant of her surroundings. She felt that she was no longer able to ensure the safety of her staff, for whom she felt solely responsible.
Taking the circumstances as a whole, the sentencing judge concluded that the appellant’s prospects for rehabilitation were ‘guarded’:
Overall, I remain somewhat guarded about your prospects for rehabilitation. But you are still relatively young. You are not beyond rehabilitation. You do need the supports outlined by Mr Crewdson, the psychologist, in his report. You need support to encourage you to remain drug free. You need support to address your history of repeated offending. You have given an indication to the court that you are ready for and want to make immediate and permanent behaviour changes. Sadly, you have said that once before and this is yet another demonstration of you not being able to keep to your own commitment. You need to act on your expression of wanting to change. There needs to be a real change in your behaviour if you want to stop offending and going to gaol.[6]
[6]Ibid [44] (emphasis added).
The submissions
The appellant submitted on the plea, and again before this Court, that the background circumstances of emotional hardship, deprivation, dysfunction and disadvantage were relevant mitigating factors in his sentencing. These factors were explanatory and causative of the appellant’s offending, as well as explanatory of and connected to his drug use. Moreover, they required general and specific deterrence and denunciation to be moderated, and required further that there be focus on the need for rehabilitation in order to protect the community in the future.
It was recognised that the appellant’s prior convictions were both numerous and serious. However, it was submitted that his tragic and deprived history remained relevant to the sentencing task.
The sentencing judge was asked to acknowledge the endemic presence of substance abuse in Aboriginal communities, and the grave social difficulties faced by members of those communities. Reports of two psychologists, Michael Crewdson and Carla Lechner, were tendered. It was clear that the appellant had a mild intellectual disability, and suffered from a persistent depressive disorder. Both reports expressed concern about the risk of institutionalisation.
As regards the appellant’s participation in the sentencing conversation, it was noted that the Koori Court is a different juridical entity to the County Court. It was further noted that the objectives of the Koori Court were listed as being to encourage participation of the accused in the court process, to encourage the accused to address his or her offending behaviour, to support the accused at the completion of sentence and to involve the community in the Court process.
The sentencing conversation involves a level of informality since neither the presiding judge nor counsel wear robes. The judge enters the courtroom with the Elders who preside with him or her. Everyone sits around the bar table, at one level, and there is a discussion about the offending, using simple and plain English. During the sentencing conversation, the offender is encouraged to talk about the past, the reasons for the conduct and to explore what services or programs might be of assistance. The Elders speak to the offender on behalf of the Indigenous community.
It was submitted that, in the present case, the appellant had actively, appropriately and enthusiastically participated in the process. He had been confronted directly by the Elders, and had respectfully engaged with them. He had spoken about the type of support that would be of benefit to him in the community, and had expressed genuine remorse for what he had done. The Elders had vigorously reprimanded him for his actions. It was submitted that he bore their disappointment and chastisement with openness and dignity. He made no excuses for his conduct but took full responsibility for his behaviour.
It was submitted that the sentencing judge had failed to give sufficient weight to the appellant’s engagement in the process, and had thus failed adequately to moderate the principles of specific deterrence and protection of the community. Although recognised as being ‘ambitious’ in the circumstances, it was submitted that the appellant’s participation in the process justified a short period of imprisonment — of only two years — combined with a Community Correction Order with ‘very stringent conditions’. This submission was based on contentions to the effect that the appellant’s participation demonstrated genuine remorse, insight into the reasons for and seriousness of his offending, and a genuine intention to reform his ways by engaging in rehabilitation programs.
In response, the Crown submitted that the sentencing judge had specifically taken into account the appellant’s youth, and had given his deprived background full weight. She had recognised the importance of his Aboriginality, and his need to be connected with his culture. The matter had been dealt with in the Koori Court, and it was plain from her Honour’s sentencing remarks that the appellant’s conduct during the course of the sentencing conversation had been taken into account. Indeed, she had stated ‘I will have regard to your participation in this process and your expressed willingness to undertake rehabilitation in terms of fixing the non-parole period’.
The Crown submitted that, having taken the appellant’s background into consideration, the sentencing judge was still bound to consider protection of the community as an important sentencing factor, particularly in light of the appellant’s criminal history. It was submitted that the sentence imposed was within range and that ground 1 ought to be rejected.
Applicable legal principles: manifest excess
The difficulty in establishing manifest excess as a ground of appeal against sentence has been repeatedly stated by this Court. It requires the Court to determine that the sentences were wholly outside the range of sentences reasonably available for this offending.[7] Such a finding does not depend upon identification of specific error. As the High Court stated in Dinsdale v The Queen:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.[8]
[7]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[8](2000) 202 CLR 321, 325–6 [6].
Further, as Priest JA recently stated in DPP v Leimonitis:[9]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[10] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[11] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[12] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[13]
[9][2018] VSCA 198 [32] (citations in original).
[10]R v Kenny (Unreported, Victorian Court of Criminal Appeal, 2 October 1978); Noa v The Queen [2013] VSCA 4 [12]; Allen v The Queen (2013) 36 VR 565, 573 [51]–[52].
[11]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[12]Ibid.
[13] Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15].
Applicable law: deprived background
In Bugmy v The Queen,[14] the High Court was concerned with an offender who came from an Aboriginal community surrounded by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence. The High Court determined that deprived or traumatic childhoods of that kind may constitute a mitigating factor in sentencing such an offender,[15] although each case must depend upon its own facts in order to ensure ‘individualised justice’.[16]
[14](2013) 249 CLR 571 (Bugmy).
[15]Ibid 592 [37].
[16]Ibid 594 [41].
In this case, there is no dispute that there is sufficient evidence that the sentencing judge correctly gave ‘full weight’ to what she described as the appellant’s ‘difficult childhood and impoverished and dysfunctional family life’. This proven history attracted the application of statements in the plurality reasoning in Bugmy that:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
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.[17]
[17]Ibid 594–5 [43]–[44] (emphasis added).
The concept of ‘full weight’ requires some explanation — to be found in the immediately following passages in Bugmy:
However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[18] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[19]
[18]Veen v The Queen [No 2] (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson and Toohey JJ).
[19]Bugmy (2013) 249 CLR 571, 595 [44] (emphasis added) (citations in original).
Applicable principles: weight to be given to participation in Koori Court sentencing conversation
The Koori Court was established under the County Court Amendment (Koori Court) Act 2008. The Act provides for the establishment of the Koori Court as a Division of the County Court.
The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court, through the role played in that process by the Aboriginal Elders and ‘respected persons’ and others.[20]
[20]County Court Amendment (Koori Court) Act 2008 s 1.
The Koori Court can only hear a proceeding involving an Aboriginal or Torres Strait Islander offender who pleads guilty and consents to the matter being dealt with by the Koori Court; and where a judge considers the matter is appropriate to come before the Koori Court.[21]
[21]County Court Act 1958 s 4E.
Section 4G of the County Court Act 1958 sets out the information which the Koori Court can consider when sentencing. That information includes oral statements made by an Aboriginal Elder or respected person,[22] and any other information the Koori Court ‘thinks fit’ to receive — including reports, statements, submissions or evidence from a Koori Court officer, a community corrections officer, a health service provider, a victim, a family member of the offender, or ‘anyone else whom the Koori Court Division considers appropriate’.[23]
[22]Ibid s 4G(2).
[23]Ibid s 4G(3).
In R v Morgan, it was accepted that active participation in the Koori Court process was more burdensome than appearing at a traditional plea hearing.[24] In that case, the point was conceded by the Crown on the appeal. The Court went on to say that active participation in the process was a factor that mitigated punishment, and explained that such an approach was consistent with legal principle. The Court in Morgan concluded that the extent to which participation in the sentencing conversation will be a mitigating factor in a particular case ‘will, of course, depend on the circumstances of the case’.[25]
[24](2010) 24 VR 230, 237 [37].
[25]Ibid 238 [40].
In the course of their reasons, the Court in Morgan accepted as correct the following description of the procedure of the Koori Court:
A Koori Court plea hearing is conducted in a three stage process. Stage 1 is a formal arraignment. Guilty pleas are entered at a case conference … The matter will then be given a plea date in the Koori Court.
Stage 2 is the sentencing conversation. This procedure is different from the usual plea hearing conducted in the County Court. The sentencing conversation is carried out as a discussion around a table. The Judge sits at the table with an Aboriginal Elder or respected person on either side of him or her. Also seated at the table are the offender, the Koori Court officer, the corrections officer, the offender’s legal representative and prosecutor. Each participant has the opportunity to participate in the sentencing conversation.
The first part of the sentencing conversation concerns aspects of cultural significance and is repeated with every offender. The sentencing conversation begins with an acknowledgement of country. The Judge explains to the offender that the court respects Aboriginal people and culture and that the room has been smoked in keeping with tradition. The Judge introduces the participants or asks them to introduce themselves and explain to the offender their role in the process.
The second part of the conversation deals with the law. The prosecutor provides a summary of the offending, details the maximum penalty applicable and makes submissions on penalty. The defence lawyer will then outline the offender’s situation, placing before the Court the plea material, and make submissions about penalty. The offender is asked to speak to the court about their offending and about themselves. Family members, support persons, or counsellors are also invited to contribute to the conversation.
The Aboriginal Elders or respected persons may then speak to the offender. The Elders or respected persons may provide information on the background of the offender and possible reasons for the offending behaviour. They may also explain relevant kinship connections and how a particular crime has affected the indigenous community, and may provide advice on cultural practices, protocols and perspectives relevant to sentencing. They may also speak to the offender about his or her behaviour and its effect upon the community.
The victim will be offered the opportunity to be heard. The victim can attend the conversation and speak or a Victim Impact Statement may be read aloud in court at their request. …
During the sentencing conversation the Judge may ask the Koori Court officer about the availability of local services and programs appropriate to the offender. The corrections officer can also provide advice about indigenous programs offered by Corrections Victoria, either in custody or with the offender remaining in the community. The aim of this approach is to maximise the rehabilitation prospects of the offender.
The Judge may discuss community and family considerations openly with the Aboriginal Elders or respected persons and other participants at the table.
Stage 3 is the sentence. The usual sentencing procedures are followed. The procedure is formal with the Judge sitting alone at the bench to deliver the sentence.[26]
[26]Ibid 235–6 [20]–[31] (emphasis added) (citations omitted).
The sentencing conversation in this case proceeded in accordance with that process.
The Court in Morgan then considered the extent of Morgan’s participation in the sentencing conversation and, in assessing the weight to be given to that participation in the circumstances of that case, stated (again adopting the submissions put forward by the Crown in that case):
In this case, Morgan had voluntarily engaged in a process of personally apologising to the victim and the Elders in respect of his conduct. As a consequence, he was ‘shamed’ during the hearing. Furthermore, he was not permitted to ‘hide behind counsel’ during the plea hearing thereby forfeiting a forensic advantage.
As to the importance of ‘shaming’, the Australian Law Reform Commission referred to ‘shaming’ as a traditional punishment that continues to be used by Aboriginal people.[27] It is clear that this form of punishment is an important aspect of maintaining order in Aboriginal communities. It is considered to be an effective sanction where the punishment is administered by Aboriginal Elders.[28]
The ‘sentencing conversation’ is designed to further the reformation of an Aboriginal offender through a unique blending of Aboriginal customary law and the English common law. Participation in the process is more burdensome than appearing at a traditional plea hearing, particularly in circumstances like the present where Mr Morgan had sought reconciliation with his indigenous heritage.
Mr Morgan chose to participate in this process in order to further his own reformation. His genuineness is exemplified by his travel from Moama to the Latrobe Valley to do so. Accordingly, his active participation in the process was a factor that mitigated punishment.[29]
[27]Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986) [500]–[501].
[28]Law Reform Commission of Western Australia, Aboriginal Customary Laws, Project 94 (September 2006) 91.
[29](2010) 24 VR 230, 237 [34]–[37] (citations in original).
More recently, in Nicholson v The Queen,[30] this Court dealt with an appeal against sentence brought by an Indigenous offender who had been dealt with in the Koori Court for some 19 indictable, and two summary, offences. These were all offences of dishonesty, albeit not involving violence. The total value of the property obtained was substantial, exceeding some $112,000. The offending conduct also extended over a significant period of time. The appellant was aged 38, and had a bad criminal record. He had been sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years. The appeal was dismissed.
[30][2017] VSCA 238 (Nicholson).
In neither Morgan nor Nicholson was there any discussion of the weight separately to be accorded to the appellant’s active participation in a sentencing conversation in the Koori Court. Nor was there any discussion as to how that factor might be balanced against considerations of general and specific deterrence and the need to protect the community. In these circumstances, in granting leave to appeal in this case, Weinberg JA stated:
Having regard to the lack of case law dealing in an extended way with that issue, it would be useful to have this Court provide guidance as to how, precisely, the procedures adopted in the Koori Court should impact upon the overall synthesis when trial judges sentence in such cases.[31]
[31]Leave Reasons [35].
In response to this statement in the Leave Reasons, the appellant filed further written submissions. The Human Rights Law Centre and the Victorian Aboriginal Legal Service acting together (the non-parties) applied for leave to appear to assist the Court. Given that the parties did not oppose their intervention, the Court granted the non-parties limited leave to appear, to enable them to file written submissions and make brief oral submissions supplementing the further submissions made by the appellant.
The appellant contended that, following a sentencing conversation, it is desirable for the Court to seek oral ‘feedback’ from the Elders as to their evaluation of the offender’s participation in the sentencing conversation. We accept that such feedback is contemplated by s 4G(2), which states that the ‘Koori Court Division may consider any oral statement made to it by an Aboriginal Elder or respected person’,[32] but it is not mandatory for the judge to seek it in every case. Feedback of this kind may assist the judge in determining the weight to be given to the offender’s participation in the sentencing conversation. However, the weight given is ultimately a matter for the judge based on the information before the Court and his or her observations during the sentencing conversation.
[32]Emphasis added.
In our view, in determining the weight to be attached to an offender’s participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:
(1) The fact that participation in the process is a voluntary one, may be confronting to the offender, and will likely involve him or her being ‘shamed’. As noted in Morgan, participation in the process may of itself be rehabilitative.
(2) The fact that the offender is, rather than ‘hiding behind counsel’, taking the opportunity to personally:
(a) demonstrate his or her remorse for the offending;
(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and
(c) express any intention to reform and how that will be done, including by participating in available rehabilitation programs.
(3) The Court’s assessment of the genuineness of the offender’s statements during the sentencing conversation. That assessment should take account of all the information before the Court.
Based on the sentencing Court’s assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case. In fixing the sentence, it is the duty of the Court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending, and the need to protect the community.[33]
[33]Sentencing Act 1991 s 5(1).
Analysis
The offending in this case was serious. That was not challenged by counsel for the appellant. We have viewed the CCTV footage and it is clear that those present, being Dan Murphy customers and employees, were obviously terrorised. At least one has ongoing anxiety according to her Victim Impact Statement. Further, having regard to the appellant’s appalling criminal history and the fact that his statements of remorse and intention to reform made during the 2013 sentencing conversation did not cause the appellant to stop his drug-taking and offending after release from jail for his second armed robbery offence, the sentencing judge was right when she characterised the appellant’s prospects of rehabilitation as guarded.
While accepting the sentencing judge’s characterisation of the genuineness of the appellant’s statements during the sentencing conversation, the fact remains that he made similar statements during the 2013 sentencing conversation and did not avail himself of the opportunity to heed the advice given to him by the Aboriginal Elders, or the advice of the sentencing judge in his sentencing reasons for the 2013 armed robbery. Having suffered the admonishment and consequent shaming of the Elders during the 2013 sentencing conversation, history shows that the appellant continued to commit offences after release from jail for the 2013 armed robbery — culminating in the armed robbery at issue. These facts raise doubt about the genuineness of the appellant’s statements in the sentencing conversation as to his intention to reform.
Notwithstanding the appellant’s deprived background, principles of denunciation, general and specific deterrence, and protection of the community, still remain important. As we have said, the present case involved the appellant’s third armed robbery, committed against the background of his appalling criminal history and his evident recidivism following his ostensibly successful participation in the sentencing conversation in 2013. In those circumstances, we regard the individual sentences on each charge, the order for cumulation and the total effective sentence as being somewhat lenient. Indeed, we consider that the leniency of the sentence imposed on the appellant can only be explained by the sentencing judge having given full weight to the matters urged in mitigation; and in particular, his deprived background and participation in the sentencing conversation. The contention that the individual sentences, orders for cumulation and total effective sentence are wholly outside the range of those open in the proper exercise of the sentencing discretion, is unsustainable.
This case is different from Morgan, where the Crown accepted that the offender, who had not previously been imprisoned for any offence, and participated in a sentencing conversation in the Koori Court for the first time, had ‘already undergone’ significant rehabilitation during his time in custody and before sentencing. The Court in Morgan accepted that there were:
a number of factors which indicated the level of rehabilitation Morgan had already undergone: his negative drug screen on arrival at the Ararat prison (in September 2009); his employment at Ararat prison as a maintenance worker, which demonstrated that Morgan was a ‘trusted prisoner’, and for which he was given permission to ‘access all areas’; and his participation in drug treatment programs and a stress management workshop.[34]
[34]Morgan (2010) 24 VR 230, 238 [41].
Here, not only had the appellant been repeatedly imprisoned previously, but this was his second opportunity to express his remorse and intentions to reform during a sentencing conversation in the Koori Court — having failed to live up to his statements in the 2013 sentencing conversation. Moreover, the appellant’s attempts at rehabilitation while in custody for this offence and before sentencing fall well short of those undertaken by Morgan. The only evidence here is that, while in custody awaiting sentence, the appellant undertook the responsibility of working as a billet in his unit, responsible for ensuring the daily cleaning of that unit. In answer to questions during the sentencing conversation, he referred to the difficulties he had in undertaking rehabilitation programs while on remand. He was chastised by the Elders for not having taken more positive steps toward rehabilitation, commencing with learning to read and write.
The appeal should be dismissed.
Further submissions: suggested approach to Koori Court sentencing
Although not directly relevant to the weight to be attached to an offender’s participation in a sentencing conversation, the appellant and non-parties made further submissions as to the sentencing approach of the Koori Court. Building on the principles in Bugmy and Morgan, and the ability under the County Court Act to seek reports from anyone considered appropriate, they contended that this Court should endorse a practice of sentencing judges in the Koori Court requesting pre-sentence reports in every case, comparable to the ‘Gladue’ reports routinely sought by Canadian courts when sentencing Aboriginal offenders.
In Gladue v The Queen, the Supreme Court of Canada held that there is a statutory obligation on sentencing courts to try and find alternatives to prison in every case ‘with particular attention to the circumstances of Aboriginal offenders’.[35] The Court further held that this requires a sentencing court to seek a pre-sentencing report which takes into account the Aboriginal offender’s deprived background and the types of sentencing procedures which may be appropriate to promote a ‘restorative approach to sentencing’.[36] The appellants provided this Court with two examples of Gladue reports, each prepared by a ‘Gladue Caseworker’ employed by ‘Aboriginal Legal Services of Toronto’. These reports provide evidence of the deprived background of the two Aboriginal offenders — which appear to us to be comparable to the kind of evidence required to attract the application of Bugmy principles in Australia[37] — and recommendations for rehabilitation.
[35]Gladue v The Queen [1999] 1 SCR 688, 736–9 [93].
[36]Ibid.
[37]Bugmy (2013) 249 CLR 571, 594 [41].
The appellant contends that such reports are permitted by s 4G(3)(f) of the County Court Act, which gives the Koori Court Division power to ‘inform itself in any way it thinks fit’, including by considering reports prepared by a specified range of persons or ‘anyone else’ considered appropriate. We accept that this is so. The appellant concedes, however, that there is no power to order a report of this kind, only a power to request.
During oral argument, counsel for the appellant struggled to identify the person or organisation who could or would provide reports in Victoria. Suggested authors of the reports included the Elders who participated in the sentencing conversation, the Department of Health and Human Services, Women’s Legal Service Victoria, or the Koori Justice Unit of the Department of Justice — depending upon the circumstances of the particular offender. Counsel for the non-parties submitted that it would be inappropriate for the Elders to prepare a report and expressed doubt about the capacity of the Koori Justice Unit to provide such reports. We note that this uncertainty does not apply in Canada where there is an organisation employing ‘Gladue Caseworkers’ to prepare such reports.
Absent the kind of legislative requirement outlined in Gladue, the appellant’s submissions bear the hallmark of a plea for law reform. While we accept that the Koori Court has power to inform itself as it thinks fit, no obligation is imposed on it to request reports of any kind. That is not to say that Koori Court judges could not request reports, evidence or submissions where the material put before them by the offender and the Crown is thought to be insufficient. Moreover, it is always open to an offender to put forward a Gladue-style report for consideration during the sentencing conversation and by the judge in determining the sentence.
- - -
127
4
0