Jayde Allen v The Queen

[2015] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0038

JAYDE ALLEN	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315
OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	OSBORN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	6 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 89
JUDGMENT APPEALED FROM:	DPP v Allen (Unreported, County Court of Victoria, Judge Carmody, 2 October 2014)

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CRIMINAL LAW – Sentence  – Application for leave to appeal – Leave sought on the basis of ‘fresh evidence’ – Where letter from South Australian Parole Board indicates applicant will not be extradited to South Australia but would be liable to serve her outstanding parole term if she returned to South Australia – Whether sentence offends principle of totality – Prospect of further custody remains contingent and hypothetical – Application for leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Wheelahan	Stary Norton Halphen
For the Respondent	Mr J B B Lewis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

1. The applicant was convicted following pleas of guilty in respect of a series of related offences arising out of a home invasion on 23 March 2013 and was sentenced by his Honour Judge Carmody on 2 October 2014 as follows:

Charges on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Aggravated burglary [s.77(1) of the Crimes Act 1958]	25 years [s.77(2) of the Crimes Act 1958]	4 years	Base
2.	Theft [s.74(1) of the Crimes Act 1958]	10 years [s.74(1) of the Crimes Act 1958]	3 months	-
3.	Theft [s.74(1) of the Crimes Act 1958]	10 years [s.74(1) of the Crimes Act 1958]	3 months	-
4.	Common law assault [Common law]	5 years [s.320 Crimes Act 1958]	12 months	6 months
5.	Common law assault [Common law]	5 years [s.320 Crimes Act 1958]	12 months	6 months

Total Effective Sentence:	5 years
Non-Parole Period:	3 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	556 days
6AAA Statement:  The learned sentencing judge stated that the sentence he would have imposed if the Applicant had been convicted of this offence after a trial would have been 7 years imprisonment, with the Applicant becoming eligible for parole after serving 5 years of that sentence.
Other relevant orders:  Forensic Sample Order pursuant to section 464ZF(2) of the Crimes Act 1958.

1. She now seeks leave to appeal against sentence on the basis of fresh evidence. 

1. The offending arose out of a premeditated confrontation following certain drug dealings.  In the course of the offending, the applicant, together with two other women, bashed the two people they intended to confront and committed incidental thefts.

1. No complaint is made that the sentences imposed are manifestly excessive. 

1. The applicant had significant prior convictions and the offending occurred whilst she was on parole.  The sentencing judge dealt with these matters in his sentencing remarks:

37You have two main problems on the horizon.  One is the potential imprisonment time you owe the South Australian parole board.  Your counsel submitted there was potentially eight months custody.  There are no precise details of this sentencing issue so I am unable to take it into account when considering the totality of your sentence.  The second problem in sentencing you is your past criminal history.

38A summary of your prior criminal history is as follows.  On 18 October 2006 you appeared at the Children's Court here in Latrobe Valley for theft of a motor car and other charges.  You were then placed on a good behaviour bond for $250.  On 4 February 2008 at Latrobe Magistrates' Court you were dealt with for theft, criminal damage, harassing a witness and unlawful assault.  You were then placed on a 12 month Community Based Order.  On 1 September 2008 at the Latrobe Valley Magistrates' Court you were dealt with for theft, entering a building to steal and obtain financial advantage and you were placed on a six month sentence, wholly suspended.  On 19 February 2009 you were dealt with for proceeds of crime, theft of a motor car, handle stolen goods and driving in a manner dangerous.  On that occasion you were sentenced to seven months' imprisonment.  You also have been dealt with for the breach of the Community Based Order and the suspended sentence was restored.

39And finally, on 14 September 2012 at Sunshine Magistrates' Court you were dealt with for aggravated burglary, theft, theft of a motor car, aggravated burglary with a person present and handling stolen goods.  On that occasion you were sentenced to four months' imprisonment.

40You have amassed a fairly solid criminal record between 2006 and 2012.  The offence in March 2013 must have been within eight weeks of your release from prison for sentences at Sunshine in September 2012.  The primary offence in this case is aggravated burglary.  The last sentence you received was not long enough for you to understand the specific deterrent aspect of it, in particular to the charge of aggravated burglary.  This is a specific aggravating feature of your offending in this case.[1]

[1]DPP v Allen (Unreported, County Court of Victoria, Judge Carmody, 2 October 2014), [37]-[40] (‘Reasons’).

1. No complaint is made that his Honour erred in the approach that he adopted. 

1. The proposed ground of appeal is as follows:[2] 

   [2]Proposed ground 2 is not pursued. 

1.        The sentence offends the principle of totality.

Particulars:

a)at the time of sentencing the Applicant’s breach of parole was potential;

b)        subsequently the Applicant’s parole liability has actualised;

c)therefore another sentence ought be substituted to avoid a miscarriage of justice.

1. It is submitted, on behalf of the applicant, that the sentencing judge was correct to disregard the prospect of liability for breach of parole in South Australia. That course accorded with s 5(2AA) of the Sentencing Act 1991 and the principles stated in Piacentino[3] and Alashkar.[4] Section 5(2AA) provides:

(2AA) Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to—

(a) any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;

…

[3]R v Piacentino; R v Ahmad (2007) 15 VR 501 (‘Piacentino’). 

[4]R v Alashkar; R v Tayar (2007) 15 VR 65.

1. It is further submitted that, by reason of s 75(1) of the Correctional Services Act 1982 (SA), the applicant is now liable to serve an additional seven months and 11 days in custody and that this should be taken into account as affecting the appropriate totality of her sentence.

1. A letter dated 27 November 2014 from the Parole Board of South Australia to the applicant’s solicitors sets out the situation (omitting formal parts):

Your client was sentenced in South Australia on 8 June 2012 to 1 year, 6 months and 21 days imprisonment for the offences of Serious Criminal Trespass (Residence Occupied) and Dishonestly Take Property Without Owners Consent.  A non-parole period of 5 months was fixed by the court.  She was released to parole on 28 August 2012.  She was immediately extradited to Victoria and served a term of imprisonment from 28 August 2012 to 1 December 2012.  Her SA parole was suspended while she served that term of imprisonment.

Prior to her release from custody in Victoria, Ms Allen sought permission for her South Australian parole to be formally transferred to Victoria under the provisions of the Parole Orders (Transfer) Act, 1988.  After her release your client was granted permission to remain in Victoria on monthly renewable travel warrants.  On 5 March 2013 her parole transfer was initially approved by the Victorian parole authorities but later that decision was rescinded after Ms Allen was remanded in custody on 28 March 2013 having been charged with further offences.  As your client’s parole order was not formally transferred to Victoria, her parole remained under the jurisdiction of the Parole Board of SA.

On 30 April 2013, upon receiving advice of Ms Allen’s fresh charges, the Parole Board of South Australia issued a warrant for Ms Allen’s arrest.

As a consequence of the sentence of imprisonment imposed in Victoria on 2 October 2014, Ms Allen’s South Australian parole was cancelled pursuant to the provisions of s75 of the Correctional Services Act, 1982 (SA).  She is liable to serve 7 months and 11 days imprisonment, being the unexpired balance of her parole remaining as at 23 March 2013.

I confirm that the Parole Board warrant issued in April 2013 remains in force.  However, at this stage, the Parole Board has determined that Ms Allen will not be extradited to South Australia when she is released from prison in Victoria.  Should Ms Allen elect to return to South Australia, she would be liable to arrest in this State and be required to serve her outstanding parole term in custody.  We will advise you if the Parole Board changes its decision not to extradite your client.[5] 

[5]Letter dated 21 November 2014 from Mr Kevin Hill, Secretary/Executive Officer, Parole Board of South Australia to Robert Stary Lawyers. 

1. Plainly enough, the South Australian authorities do not wish to encourage the applicant to return to their jurisdiction.  Given her record, this is, on one view, understandable.  But the course adopted may also reflect an awareness of totality considerations on the Parole Board’s part.[6] 

   [6]Cf Piacentino (2007) 15 VR 501, 517 [76].

1. The prospect that the applicant may be unwise enough to return to South Australia is, in my view so remote that it could not sensibly affect the relevant sentencing discretion.  She has no real links with that State and her family and community ties are to this State. 

1. It may be accepted that the course adopted by the Parole Board gives rise to a ‘possibility’, as distinct from a likelihood in terms of s 5(2AA), but so to characterise the situation does not necessarily make the Parole Board’s decision a material sentencing consideration.

1. Whilst I accept that the Parole Board's letter does not finally resolve the applicant's situation and may occasion some on-going anxiety on her part, nevertheless, it seems to me that s 5(2AA) is concerned with the actual likelihood or possibility of further time in custody.

1. The present case is not equivalent to that identified in Piacentino.[7]  The possibility of further time in custody in the present case remains contingent and hypothetical. 

   [7]Ibid 525 [106].

1. Further, the South Australian prior conviction was not alleged or proven by prosecution before the sentencing judge or considered to be relevant by the sentencing judge.  The reality is that the applicant has three not two prior convictions for aggravated burglary in a relatively short period.  Likewise, the sentencing judge did not treat the applicant’s breach of parole as an aggravating factor.[8]  In this regard, his Honour reasoned as follows:

67As I have said earlier you have two prior convictions for aggravated burglary which were dealt with in a Magistrates’ Court and you were sentenced to four months’ imprisonment.  You had only been out of custody approximately two months when you committed these offences.  That is an aggravating feature of your criminality.  On the positive side you have done well in rehabilitation terms from your time in custody.  I have fixed a lower than usual non-parole period so that you have supervision on your release and assist you obtain your productive life that you seek.[9] 

[8]Reasons [62]-[63].

[9]Reasons [67].

1. If the same course of reasoning were followed but informed by the additional prior conviction for aggravated burglary and the fact of breach of parole, it must support a heavier sentence. 

1. In my opinion, even if the letter of the Parole Board were to be admitted as fresh evidence on an appeal, that appeal has no reasonable prospects of success. 

1. The letter of the Parole Board can be said to throw fresh light on circumstances which existed at the time of the sentence and might be admitted as fresh evidence,[10] but as I have said, it demonstrates no more than that the prospect of further custody remains contingent, hypothetical and, on its face, unlikely. 

   [10]R v Alashkar; R v Tayar (2007) 15 VR 65, 69 [9].

1. It also follows from what I have said that the fresh evidence of the nature of the South Australian conviction incidentally demonstrates factors which, if anything, show that the sentence imposed in the case was merciful. 

1. There is in my view no reasonable prospect that the Court would reduce the total effective sentence on the basis of the fresh evidence. 

1. Leave to appeal will be refused. 

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