Jack Donald McLean v The Queen
[2017] VSCA 142
•22 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0239
JACK DONALD McLEAN Applicant v THE QUEEN Respondent ---
JUDGES: MAXWELL P, REDLICH and KYROU JJA WHERE HELD: MELBOURNE DATE OF HEARING: 4 May 2017 DATE OF ORDERS: 4 May 2017 DATE OF REASONS FOR JUDGMENT:
22 June 2017
MEDIUM NEUTRAL CITATION: [2017] VSCA 142 JUDGMENT APPEALED FROM: DPP v McLean (Unreported, County Court of Victoria, Judge Harbison, 2 November 2016) ---
CRIMINAL LAW – Appeal – Sentence – Multiple burglaries and thefts – Sentence one year and nine months’ imprisonment with three-year community correction order – Procedure for warning applicant if Court considers more severe sentence may be imposed – Alerting applicant to risk prior to hearing – Two of three grounds abandoned – Parity – Offending clearly distinguishable from that of co-offenders – Leave to appeal refused – Criminal Procedure Act 2009 s 281(3).
---
APPEARANCES: Counsel Solicitors For the Applicant Mr D A Langton David Barresse & Associates For the Respondent Mr C B Boyce SC Mr J Cain, Solicitor for Public Prosecutions MAXWELL P
REDLICH JA
KYROU JA:1 The applicant seeks leave to appeal against a total effective sentence of one year and nine months’ imprisonment combined with a Community Correction Order (CCO) of three years to commence upon the completion of the term of imprisonment. The CCO conditions included the performance of 300 hours unpaid community work, supervision, treatment and rehabilitation.
2 The notice of appeal contained the following three grounds:
(i)the learned sentencing judge erred in her findings of fact in assessing the seriousness of the offence of Arson;
(ii)the sentence was manifestly excessive in that the learned trial judge erred in admitting into evidence the victim impact statements with respect to the offences of Handle Stolen Goods; and
(iii)the learned sentencing judge erred in failing to give sufficient weight to the principles of parity.
3 Prior to the hearing of the application, and again during the hearing, the applicant was warned by the Court that, were he to succeed on any ground so as to reopen the sentencing discretion, there was a real risk that the Court would impose a more severe sentence than that which had been imposed at first instance. The applicant then abandoned the first two grounds during the course of oral argument. The ground asserting a breach of the principle of parity was maintained.
4 Leave to appeal on that ground was refused at the conclusion of the oral hearing. The Court indicated it would in due course publish its reasons. These are those reasons.
The ‘yellow card’ procedure
5 Before we turn to the sole ground of appeal it is necessary to say something as to the procedure followed in this case, that is, the procedure of warning an applicant in advance of the hearing of the risk that, if error in the sentencing process is demonstrated and the discretion reopened, the sentence may be increased. It has long been the practice at common law to warn an offender during the course of an appeal against sentence where such a risk arises.[1] That invariable practice is now reflected in s 281(3) of the Criminal Procedure Act 2009 (‘the Act’), which requires such a warning to be given during the hearing of the appeal. It should be emphasised that the common law practice arose and was maintained during the period when there was no requirement that each party, prior to the hearing, provide the Court with a comprehensive written case relating to the grounds of appeal.
[1]See, eg, McL v The Queen (2000) 203 CLR 452, 492 [125] (Kirby J); Parker v DPP (1992) 28 NSWLR 282, 294–5; Ho v DPP (1995) 37 NSWLR 393, 400; Brand v Parson (1994) 1 VR 252, 257.
6 In this case, after reviewing the parties’ respective written submissions, the bench instructed the Court of Appeal registry to send an email warning the applicant that, were he to succeed in having the sentencing discretion reopened, there was a risk that the Court would impose a more severe sentence than that imposed at first instance. The email was in these terms:
Dear practitioners
The bench have considered the materials filed in the above matter.
On the basis of the written materials the bench consider it possible that a decision following the hearing of oral argument might involve a more severe sentence than first imposed.
That being possible, but not decided, the bench may consider providing your client with a warning pursuant to section 281(3) of the Criminal Procedure Act 2009 during the oral hearing.
We understand that your client will not be appearing at the hearing.
Consequently, the bench requests that you consider whether you will be in a position to obtain instructions in the event that a decision is made to give such a warning during the course of the hearing.
7 During the course of oral argument the Court referred further to this warning. Counsel for the applicant then abandoned grounds 2 and 3 in light of the possibility that a resentencing on relevant charges might contain a ‘certain peril’ for his client.
8Although the Act does not require a warning to be given prior to the commencement of the hearing of the leave application, there is no obstacle to that course being taken. In our view, fairness requires that such a warning be given as early as practicable.[2] This maximises the opportunity for the applicant to consider the issue, to take advice and give fully considered instructions.[3][2]On the point of fairness, see Pantorno v The Queen (1989) 166 CLR 466, 473 (Mason CJ and Brennan J).
[3]Section 281(3) of the Act provides that: ‘If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.’
Overview
9 On 19 October 2016 the applicant (born on 23 July 1992 and now aged 24) pleaded guilty in the County Court to 14 charges in a single indictment as well as to three related summary offences. The charges in the indictment arose from a series of burglaries committed in the Wodonga region throughout 2015. These burglaries were committed by a group of offenders, of which the applicant was a prominent member. On 2 November 2016 he was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
Handle stolen goods [s 88(1) Crimes Act 1958 (‘CA’)]
15 years’ imprisonment
[s 88(2) CA]
21 months’ imprisonment;
CCO 3 years
No order for cumulation made / all sentences imposed to be served concurrently
Handle stolen goods
[s 88(1) CA]
15 years’ imprisonment
[s 88(2) CA]
21 months’ imprisonment;
CCO 3 years
Burglary [s 76(1) CA]
10 years’ imprisonment
[s 76(3) CA]
12 months’ imprisonment
Burglary [s 76(1) CA]
10 years’ imprisonment
[s 76(3) CA]
12 months’ imprisonment
Theft [s 74 CA]
10 years’ imprisonment
[s 74 CA]
12 months’ imprisonment
Theft [s 74 CA]
10 years’ imprisonment
[s 74 CA]
12 months’ imprisonment
Arson [s 197(1) and (6) CA]
15 years’ imprisonment [s 197(7) CA]
21 months’ imprisonment;
CCO 3 years
Burglary [s 76(1) CA]
10 years’ imprisonment
[s 76(3) CA]
12 months’ imprisonment
Theft [s 74 CA]
10 years’ imprisonment
[s 74 CA]
12 months’ imprisonment
Burglary [s 76(1) CA]
10 years’ imprisonment
[s 76(3) CA]
12 months’ imprisonment
Theft [s 74 CA]
10 years’ imprisonment
[s 74 CA]
12 months’ imprisonment
Burglary [s 76(1) CA]
10 years’ imprisonment
[s 76(3) CA]
12 months’ imprisonment
Resist emergency worker [s 31(1)(b) CA]
5 years’ imprisonment [s 31(1) CA]
1 month’s imprisonment
Possess DoD (cannabis) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCS Act’)]
5 penalty units
[s 73(1) DPCS Act]
Convicted and fined $100
Summary offences
44.
Drive whilst unlicensed [s 18(1) Road Safety Act 1986 (‘RSA’)]
25 penalty units or 3 months’ imprisonment
[s 18(1) and s 28 RSA]
3 months’ imprisonment
No order for cumulation made / all sentences imposed to be served concurrently
84.
Deal with property suspected of being proceeds of crime
[s 195 CA]
2 years’ imprisonment [s 195 CA]
1 month’s imprisonment
87.
Possess prohibited weapon without exemption / approval [s 5AA Control of Weapons Act 1990 (‘CWA’)]
240 penalty units or 2 years’ imprisonment [s 5AA CWA]
1 month’s imprisonment
Total Effective Sentence: 1 year and 9 months’ imprisonment; 3 year CCO (to commence upon completion of imprisonment) Non-Parole Period: Nil Pre-Sentence detention: 356 days 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years CCO conditions:
300 hours of unpaid community work (and 50 hours of treatment and rehabilitation to be counted towards unpaid community work); supervision; treatment and rehabilitation.Other relevant orders:
Charge 44: Licence cancelled and disqualification from obtaining license for a period of 2 years.
Charge 3: Applicant to pay compensation in the sum of $200 to Rutherglen Newsagency.
Charges 4 and 5: Applicant to pay compensation in the sum of $400 to Watts-In Bundalong Café.
Charge 6 and 7: Applicant to pay compensation in the sum of $8000 to Katie Dearing.
Charge 8 and 9: Applicant to pay compensation in the sum of $775 to Shell Service Station.
Charge 10 and 11: Applicant to pay compensation in the sum of $1700 to Pixon Automotive.
Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and summary charges 84 and 87: Forfeiture order made.
10 It was not always the same co-offenders who participated with the applicant in the offences to which he pleaded guilty. The applicant’s younger brother was sentenced in the Magistrates’ Court to 312 days’ imprisonment (being the amount of pre-sentence detention) and a 15 month CCO for several burglary offences (which included some of those upon which the applicant was charged) and theft and other related offences. It is that sentence that the applicant relies upon to make out the breach of the parity principle. The sentences of the applicant’s other co-offenders are not relevant for the purposes of what follows.
11 We have appended to our reasons a document submitted by the respondent (see Appendix A) which summarises the involvement of the applicant and his co-offenders in the applicant’s offending.
Circumstances of the offending[4]
[4]This summary is drawn from: Summary of Prosecution Opening, 19 October 2016 (Exhibit 2A on the plea); and DPP v McLean (Unreported, County Court of Victoria, Judge Harbison, 2 November 2016) [8]–[22] (‘Reasons’).
12 On 12 March 2015 a burglary was committed at a residence in Black Street, Wodonga, during which firearms and ammunition were stolen. As was acknowledged during oral argument, the applicant was aware of the burglary, and on its completion took possession of the proceeds (charge 1, handle stolen goods). Some of the stolen property was later recovered during the execution of a search warrant on 13 November 2015 at the applicant’s family farm.
13 On 27 June 2015 a burglary was committed at a residence in Cole Court, Wodonga. Several rifles, ammunition and other property was stolen. The applicant handled some of these items (charge 2, handle stolen goods) and some were recovered during the aforementioned search.
14 On 1 July 2015 a burglary was committed at the Rutherglen Newsagency. The offenders, including the applicant, used a sledgehammer and crowbar to force their way in (charge 3, burglary). They fled when the alarm was activated.
15 On 17 July 2015 two offenders committed a burglary at the Bundalong Café. One was the applicant. Cash and property were stolen, the total value of which was $400 (charges 4 and 5, burglary and theft).
16 In the early hours of 24 August 2015 the applicant stole a Nissan utility vehicle from a residence in Wodonga (charge 6, theft). He drove the Nissan to the Rutherglen Shell service station, burgled it (charge 8, burglary) and stole cash and property (charge 9, theft). He then drove the Nissan to another location, set it alight and abandoned it (charge 7, arson).
17 In the late evening of 27 and early morning of 28 August 2015 three offenders, one of whom was the applicant, committed a burglary at Pixon Automotive in Tallangatta (charge 10, burglary). Property and cash were stolen (charge 11, theft). The offenders fled the scene of the crime and were pursued by police. The applicant was a passenger in the vehicle pursued by police. The pursuit was called off, however, due to the dangerous driving of the driver of the vehicle, the applicant’s girlfriend.
18 On 15 October 2015 a burglary was committed at the Barnawartha Store. Two offenders gained entry, one of whom was the applicant, and fled after the alarm was activated (charge 12, burglary).
19 On 12 November 2015 police executed a search warrant at the applicant’s family unit. The applicant resisted arrest (charge 13, resist emergency worker). Police also located four cannabis plants (charge 14, possession of a drug of dependence).
20 In the period between 9 and 21 October 2015 the applicant drove a motor vehicle (on 15 separate occasions) whilst unlicensed (charge 44, drive whilst unlicensed). In the period between April and November 2015 members of the applicant’s family purchased various vehicles using money obtained through the burglaries (charge 84, dealing with proceeds of crime). On 12 November, during the execution of the search warrant at the applicant’s family unit, police located three prohibited weapons (charge 87, possess prohibited weapon).
Procedural history
21 The applicant and his co-offenders were arrested on 12 November 2015. The applicant denied involvement in the offending in his record of interview. There was a committal, involving several witnesses, which concluded on 12 May 2016. Following negotiations the matter proceeded as a plea in the County Court on 19 and 20 October 2016, the Crown no longer alleging that the applicant was a participant in those burglaries in which he was not present. It was accepted that, although he was not the head of a ‘crime family,’ he was the ringleader in those burglary offences in which he participated.
22 On the plea in mitigation the applicant submitted that, based on his youth, early plea of guilty, realistic prospects for rehabilitation and, in particular, new focus in life in the form of his young daughter, he ought to be sentenced leniently. The applicant urged the judge to impose a sentence of the same order as had been fixed for his younger brother. It was submitted that the appropriate sentencing disposition would be to declare the time already served (356 days) as the term of imprisonment to be followed by a CCO with potentially onerous conditions. The prosecution submitted that, as the applicant was older, played a greater role in the offending and had a more concerning history of priors, parity was not required but a term of imprisonment, to be followed by CCO, would still be an appropriate sentencing disposition.
23 A further issue arose on 2 November 2016 as the sentencing judge was about to pass sentence. The applicant had tendered a letter submitting that he had suffered extraordinary hardship at the Melbourne Remand Centre (‘MRC’) as a result of the 2015 riots. He stated in his letter that, for six months, he had been locked in his cell and only allowed out for one hour per day. However, this was shown to be false, since an affidavit submitted by a manager at the MRC deposed that he had been let out of his cell from 8:00 am until 4:00 pm most days.[5] The prosecution then urged the sentencing judge to consider the applicant’s letter a lie, which showed a complete lack of remorse, a manipulative mind and a desire to pervert the course of justice. It was submitted that anything said in mitigation on the applicant’s behalf ought to be viewed with extreme scepticism and that his conduct negated the mitigatory considerations that might otherwise have had more weight in the sentencing balance.
[5]The applicant was likely subject to ‘extreme lockdown’ for only a handful of days.
24 The sentencing judge made explicit reference to the sentence imposed on the applicant’s younger brother. Her Honour stated that she entertained reservations about the issue of parity as she did not have any of the materials put on the pleas of the applicant’s co-offenders and, as such, was unable to assess the relative strength or weakness of the applicant’s plea in relation to those of his co-offenders.[6] Her Honour accepted the applicant’s youth as a relevant factor but highlighted his ‘guarded’ prospects of rehabilitation and the need for specific deterrence in light of his ‘significant risk’ of reoffending.[7] She noted that the course of offending had been carefully planned and that the applicant had been the driving force behind it.[8] Reference was made to the applicant’s ‘many prior convictions’ for offending of a very similar nature.
[6]Reasons [96].
[7]Ibid [97].
[8]Ibid.
25 On appeal the applicant contended that the disparity between the sentences imposed on him and on his brother could not be justified by any differences in either the circumstances of the two offenders or the offences. In particular, he submitted that the duration of the CCOs imposed were highly disparate, taking into account the punitive nature of such orders. Both the term of imprisonment for his brother and the durations of the CCO were half that imposed on the applicant. He submitted that, although the sentence imposed on his brother was ‘lenient’ and could be described as ‘merciful’, it was within the range.
Analysis
26 In our view there were significant factors which differentiated the offending of the applicant from that of his brother. The applicant’s brother had only been a co-offender with respect to charge 3 (the Rutherglen Newsagency burglary) and charges 4 and 5 (the Bundalong Café burglary and theft). On charge 2, although the applicant did not participate in the burglary with his brother, he was aware of it and received the proceeds of it. Of greater significance is the fact that his brother was not involved in the serious offending the subject of charges 1, 2 and 7. We note that, despite their gravity, the sentences on those charges were ordered to be served concurrently with all other sentences.
27 The applicant played the primary role as the ‘ringleader’ and ‘driving force’ behind the offending. There were also personal factors of difference. The applicant was older and had a more extensive criminal history. He thus posed a greater risk of reoffending. These factors warranted the imposition of a longer term of imprisonment and a longer and more punitive CCO than that received by his brother. Parity did not require that the applicant receive a lesser sentence.
28 For these reasons the application for leave to appeal was refused.
- - -
Appendix A: Comparative Table
Relevant Event / Incident (Operation Starmuzz) Offender Applicant Applicant’s brother Co-offender 2 Co-offender 3 Co-offender 4 3 Black Street: 12 March 2015
(Handle stolen goods – Charge 1)i - - - - Vic Hotel Tallangatta:
3-4 May 2015- Burglary Theft ($450) - - Burglary Theft ($1,200) 14 Cole Court, Wodonga: 26-27
June 2015
(Handle stolen goods – Charge 2)ii Theft of motor vehicle ($9,000) Burglary
Theft ($5,000)
- - - Rutherglen Newsagency: 1 July
2015
Burglary (Charge 3) Burglary - - - Bundalong Café: 17 July 2015 Burglary (Charge 4)
Theft ($400) (Charge 5)
Burglary Theft ($400) - - - Telegraph Hotel Chiltern: 17 July 2015 - Burglary Theft ($900) - - - Shell Service Station: 17 August 2015 - Burglary Theft ($500) Burglary Theft ($500) Burglary Theft ($500) Yackandandah Service station: 21 August 2015 - - Burglary Theft ($1,640) Theft ($1,640) - UCU 264 – Nissan Navara: 23-24 August 2015 Theft of motor vehicle ($14,000)
(Charge 6)
- Theft of motor vehicle ($14,000) Theft of motor vehicle ($14,000) - Shell Service Station / Indigo Fuels: 24 August 2015 Burglary (Charge 8)
Theft ($775) (Charge 9)
- Burglary Theft ($775) Burglary Theft ($775) - UCU 264 – Nissan Navara: 24 August 2015 Arson ($14,000) (Charge 7) - Arson ($14,000) Arson ($14,000) - Pixon Automotive: 27-28 August 2015 Burglary (Charge
10)
Theft ($2,187.70)
(Charge 11)
- - Burglary Theft ($1,700) Burglary
Theft ($2,501)
Dangerous driving
Relevant Event / Incident (Operation Starmuzz) Offender Applicant Applicant’s brother Co-offender 2 Co-offender 3 Co-offender 4 “Joyride” incident: 9 September 2015 Theft of motor vehicle ($45,000) Theft ($150)
Unlicensed driving
Fail to stop on request
Exceed speed limit
(20km)
Aggravated burglary
– person present
Theft of motor vehicle ($45,000) Theft ($150)
Aggravated burglary
– person present
Barnawartha Store: 15 October
2015Burglary (Charge 12) - - - - Search Warrants executed 12-13 November 2015 Handle stolen goods
(Charges 1 & 2)
Resist arrest (Charge
13)
Possess cannabis
(Charge 14)Possess prohibited weapon (Charge 87)
Possess cannabis
Possess methylamphetamine
Possess cannabis
Possess prohibited weapon
Possess cannabis - Further offences in relation to
Operation Starmuzz subject of this appeal
9 to 21 October
2015: 15 Drive whilst disqualified charges rolled up into Charge 44,
which was then amended to
unlicensed driving.
1 April to 12
November 2015: Possess proceeds of crime (Charge 84)
- - - -
Relevant Event / Incident (Operation Starmuzz) Offender Applicant Applicant’s brother Co-offender 2 Co-offender 3 Co-offender 4 Value of thefts / damage $17,362.70iii $16,250 $17,065 $18,765 $3,701 Number of charged incidents proceeded with 8 7 7 8 2 Sentenced by and on Melbourne County
Court
(CR-16-00829)
2 November 2016Wodonga
Magistrates’ Court
(201611977)
19 September 2016
Wodonga Children’s
Court
(F13788355)
8 November 2016
Wodonga Children’s
Court
(F13788468)
8 November 2016
Wodonga
Magistrates’ Court
(F13788322)
20 June 2016Total effective sentence See Respondent’s Written Case Convicted, 312 days’ imprisonment. 312
days PSD declared.
15 months’ CCO with 150 hours
community work, supervision,treatment and
rehabilitation.
Compensation orders totalling $4,900.
Forfeiture orders.
Licence suspended for 6 months.
Convicted, 140 days’
YJC. PSD of 140 days declared.Convicted, 140 days’
YJC. PSD of 140 days declared.
Without conviction,
12 months’ CCO with supervision condition.
Compensation orders totalling $826.
Licence suspended for 6 months
Other briefs and sentences dealt with on the same day - 6 October 2016: Drive whilst
Disqualified
Use unregistered motor vehicle
Sentence: aggregate with total effective sentence above
- Unknown date:
Intentionally Cause
Injury
Recklessly Cause
Injury
Commit Indictable
Offence whilst on Bail
Unlawful Assault
Sentence: 3 month
Youth Service Order
- Relevant Event / Incident (Operation Starmuzz)
Offender
Applicant Applicant’s brother Co-offender 2 Co-offender 3 Co-offender 4 Age when offending / at sentence 22-23 / 24 21 / 22 15 / 17 15 / 17 18-19 / 20 Appeal status Appealed to the
Court of Appeal
S APCR 2016 0239
Appealed to
Wodonga CountyCourt (circuit
commences 14March 2017)
AP-16-2692
No appeal filed No appeal filed No appeal filed i Goods stolen during the burglary at 3 Black Street were located during the execution of the search warrant at the applicant’s residence on 12 November 2015. The victim provided a Victim Impact Statement.
ii Goods stolen during the burglary at 14 Cole Court were located during the execution of the search warrant at the applicant’s residence on 12 November 2015. The victims provided Victim Impact Statements.
iii This value does not include the value of the items which are the subjects of the handle stolen goods charges (1 and 2). No value has been ascribed to those items.
0
7
0