Joseph v The Queen
[2014] VSCA 343
•18 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0102
| RAMSEN JOSPEH |
| v |
| THE QUEEN |
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| JUDGES: | WEINBERG, PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 December 2014 |
| DATE OF JUDGMENT: | 18 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 343 |
| JUDGMENT APPEALED FROM: | DPP v Joseph (Unreported, County Court of Victoria, Judge Chettle, Conviction, 7 June 2013; Sentence, 27 June 2013) |
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CRIMINAL LAW – Conviction – Applicant convicted of multiple offences including aggravated burglary whilst co-offender armed with firearm – Whether necessary for trial judge to give anti-propensity warning in relation to weapon of similar description located at co-offender’s home – No exception taken to failure to give warning at trial – No substantial miscarriage of justice – Thompson and Wran v The Queen (1968) 117 CLR 313 distinguished.
CRIMINAL LAW – Sentence – Applicant convicted on basis of joint criminal enterprise – Total effective sentence 14 years and 6 months with non-parole period of 11 years – Co-offender, whose involvement was relevantly indistinguishable, sentenced to 11 years with non-parole period of 7 years 6 months – Co-offender younger and fewer prior convictions – Whether justifiable sense of grievance based upon undue disparity between sentences – Undue disparity between respective non-parole periods – Leave to appeal against sentence granted – Applicant’s non-parole period reduced to 9 years 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Valos Black & Associates |
| For the Crown | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
PRIEST JA
SANTAMARIA JA:
The applicant stood trial, in the County Court at Melbourne, charged with aggravated burglary, armed robbery, recklessly causing injury, kidnapping, intentionally causing serious injury, and blackmail. He was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary - firearm
[Crimes Act 1958 s 77(1)(a)]25 years
[Crimes Act 1958 s 77(2)]6 years Base sentence 2 Armed Robbery
[Crimes Act 1958 s 75A(1)]25 years [Crimes Act 1958 s 75A(2)] 4 years 1 year 4 Recklessly cause injury
[Crimes Act 1958 s 18]5 years
[Crimes Act 1958 s 18]1 year 5 Armed Robbery 25 years 3 years 6 months 6 Kidnapping [Crimes Act 1958 s 63A] 25 years
[Crimes Act 1958 s 320]5 years 2 years 10 Intentionally cause serious injury
[Crimes Act 1958 s 16]20 years
[Crimes Act 1958 s 16]6 years 3 years 12 Blackmail [Crimes Act 1958 s 87(1)] 15 years [Crimes Act 1958 s 87(3)] 4 years 2 years Total Effective Sentence: 14 years and 6 months’ imprisonment Non-Parole Period: 11 years Pre-sentence Detention Declared: 88 days 6AAA Statement: N/A
A co-offender, George Maghrabi, was found guilty of precisely the same offences. He was sentenced in accordance with the table set out below:
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary - firearm 25 years 5 years Base 2 Armed Robbery 25 years 3 years 6 months 1 year 4 Recklessly cause injury 5 years 1 year
| Charge | Offence | Maximum | Sentence | Cumulation |
| 5 | Armed Robbery | 25 years | 2 years 6 months | 6 months |
| 6 | Kidnapping | 25 years | 4 years | 1 year |
| 10 | Intentionally cause serious injury | 20 years | 5 years | 2 years |
| 12 | Blackmail | 15 years | 3 years | 1 years 6 months |
| Total Effective Sentence: | 11 years’ imprisonment | |||
| Non-Parole Period: | 7 years and 6 months | |||
| Pre-sentence Detention Declared: | 272 days | |||
| 6AAA Statement: | N/A | |||
A second co-offender, Ali Kheir, was convicted of aggravated burglary, armed robbery, recklessly causing injury, and blackmail. He was sentenced as set out below:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary - firearm | 25 years | 6 years | Base sentence |
| 2 | Armed Robbery | 25 years | 4 years | 1 year |
| 4 | Recklessly cause injury | 5 years | 1 year | Nil |
| 5 | Armed Robbery | 25 years | 3 years | 6 months |
| 12 | Blackmail | 15 years | 4 years | 2 years |
| Total Effective Sentence: | 9 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 7 years | |||
| Pre-sentence Detention Declared: | 27 days | |||
| 6AAA Statement: | N/A | |||
A third co-offender, Michael McDonald, failed to appear for his trial, whilst on bail. He was subsequently apprehended, and later pleaded guilty to aggravated burglary, armed robbery, kidnapping, intentionally causing serious injury, being a prohibited person in possession of an unregistered firearm, and failing to answer bail (a summary offence). He was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary - firearm | 25 years | 5 years | Base |
| 2 | Armed Robbery | 25 years | 5 years | 2 years |
| 3 | Kidnapping (rolled up charge incorporating blackmail) | 25 years | 5 years | 2 years |
| 4 | Intentionally cause serious injury | 20 years | 1 year | 6 months |
| 5 | Being a prohibited person in possession of an unregistered firearm [Firearms Act 1996 (Vic) s5(1A)] | 15 years [Firearms Act 1996 (Vic) s5(1A)] | 2 years | 1 year |
| Summary Offence | Failing to appear whilst on bail [Bail Act 1977(Vic) s30] | 12 months[Bail Act 1977(Vic) s30] | 12 months | 12 months |
| Total Effective Sentence: | 11 years’ and six months imprisonment | |||
| Non-Parole Period: | 8 years and 3 months | |||
| Pre-sentence Detention Declared: | 289 days | |||
| 6AAA Statement: | 14 years imprisonment with a non-parole period of ten years and six months | |||
The proposed grounds of appeal - conviction
There is but one ground in support of the application for leave to appeal against conviction:
The trial judge erred in failing to give the jury a propensity direction in relation to the finding of a shotgun at co-offender Michael McDonald’s premises.
Circumstances surrounding the offending
On 17 January 2011, a man named Ly Phi Ho Phu was sleeping over at a garage (which had been converted into a workshop, lounge room and a bedroom) at premises in St Albans belonging to his friend, Osman Memisevic. Between 1.30am and 2.30am, five men entered the garage, one of them holding a sawn-off shotgun. The Crown case was that those men were the applicant, Maghrabi, Kheir, McDonald, and a fifth man whose identity was not known (charge 1 – aggravated burglary).
The applicant and two of the other men bashed Memisevic, and struck him with an iron bar, inflicting pain, bruising and swelling. They forced him to open his safe (charges 2 – armed robbery, and 4 – recklessly cause injury).
The men also robbed Phu of a quantity of cash (charge 5 – armed robbery).
The men then abducted Phu, locked him in the boot of a car, and drove away. Over the course of the next three days, Phu was moved to a number of different locations, and repeatedly assaulted (charge 6 – kidnapping).
On 18 January 2011, the applicant and Maghrabi drove Phu to a semi-rural location described as ‘the mountain’. There, Maghrabi slashed Phu’s elbow and face with a knife (charge 10 – intentionally cause serious injury).
Phu was told he would be released if he provided $100,000, effectively by way of ransom. Phu telephoned both his cousin and his uncle in an attempt to obtain the money (charge 12 – blackmail).
On 19 January 2011, the men released Phu, who went immediately to his uncle’s house, where police were waiting.
The Crown case was that the applicant and his various co-offenders all acted pursuant to what was described as a joint criminal enterprise.
As it happened, a number of the telephone calls made to Phu’s relatives after he was kidnapped were recorded. A police officer, Sergeant Darren Bray, gave evidence that, having listened carefully to the intercepted calls, and having compared the voices on those calls with that of the applicant, it was his opinion that the applicant had been party to the various demands that were being made.
In addition, the Crown relied upon several items of circumstantial evidence to establish the applicant’s involvement in the offending. For example:
·the applicant’s fingerprints were located on the safe, and on a toolbox in Memisevic’s workshop;
·the applicant used his personal details to check into, and book, a room at the first of several motels to which Phu had been taken;
·bloodstains linked to Phu by DNA testing were found in the boot of the applicant’s car; and
·a shotgun matching the description of the weapon used in the offending was located by police at McDonald’s property.
Put simply, the defence case was that the offending had not occurred. The applicant had visited Memisevic’s workshop at his invitation. That explained why his fingerprints were found on the safe, and on the toolbox. He had gone to the workshop to collect Phu, and take him out ‘partying’. Contrary to Phu’s account, there had been no robbery and no kidnapping. Phu had simply accompanied the applicant voluntarily.
The defence case was said to be supported by the fact that the applicant drove to a local hotel in his own car, signed-in to the hotel in his own name, and even provided his own driver’s licence. The blood in the boot may well have been that of Phu, but the jury could not be satisfied as to how he came to be injured. Nor could they be satisfied that the applicant had been, in any way, involved in bringing that situation about.
The defence went on to say that the telephone calls made to Phu’s family occurred because Phu and Memisevic were attempting, at the time, to ‘scam’ Phu’s family out of money in order to cover some of his debts.
Finally, it was said that the jury could not be satisfied that the shotgun found at McDonald’s home was the same weapon as that allegedly used in the offending.
In other words, the main issue for the jury to resolve, so far as the applicant was concerned, was whether the Crown had established that the offending had actually taken place.
The evidence directly supporting the Crown case came from Memisevic and Phu.
Memisevic described how, at about 2.30am, he was awakened by the rattling sounds of a sliding door being opened. He recognised the voice of one of the men, in a group of five or six, as that of Kheir. He also recognised McDonald. He did not know the other men. He saw one of the intruders carrying a shotgun with a shortened barrel. The man carrying the shotgun was wearing white surgical gloves.
Memisevic gave evidence that the man armed with the shotgun pointed it at him. McDonald, who was walking behind that individual picked up a crow bar that was in the workshop, and hit him across the left shoulder with it. The men then forced him to open the safe. They took a quantity of camera equipment, but also questioned him repeatedly as to the location of ‘the gear’.
Memisevic went back inside the house with McDonald, and handed over his wallet, which contained $1,210. The two men then returned to the workshop. Memisevic saw Phu sitting on the couch, looking frightened. Phu’s hands had been tied with duct tape.
One of the men asked Phu if he had any money. Phu answered ‘no’. The man searched Phu’s pockets, and found a substantial quantity of cash. He became angry, and struck Phu eight to ten times to the back of the head. These were described as strong blows, and had the effect of knocking Phu to the ground.
The men then taped up Phu’s mouth. They tied his feet and ankles with rope. McDonald took Memisevic’s mobile telephone, and said it would be left near the front gate. He gave orders to the effect that Phu was to be put in the boot, and that Memisevic was to stay behind and follow his instructions fully.
The men searched through the workshop. They took photographic and video equipment, a custom guitar, a laptop, a telescope, an iPhone, and some old mobile phones. They then departed. Memisevic went to the gate to recover his mobile phone, but could not locate it.
Memisevic was shown a shotgun. He said that it looked similar to the weapon that had been used in the offending. His exact description was that it was ‘very, very, very close’ to the gun that had been pointed at him. He acknowledged that he mistakenly thought the gun used in the offending had been a 16-gauge shotgun with a tapered barrel, but accepted that the weapon produced as an exhibit was, in fact, a 12-gauge shotgun. He said that he had estimated the gauge merely by looking at the barrel, but added that it was more accurate to judge the gauge by its chamber. The difference in barrel diameter between a 16-gauge and a 12-gauge shotgun was described as minimal.
Another important witness was Phu’s cousin, Thuy Phuong Nim. She said that on 18 January 2011, Phu telephoned her and said that he was in trouble, and needed $100,000. She told him to telephone her father. That evening, Phu telephoned Nim’s father. Nim overheard what was said, and at one stage intervened directly, asking to speak to those who were holding her cousin. A man told her that Phu owed them money. Phu then came back on the phone, and they discussed where the money might be dropped off. Nim and her family then decided to go to the police.
While at the police station, Nim received another call from the man to whom she had previously spoken. She told him that she needed time to get the money. The next day, Phu called her again. He told her that he had been released, and was at a friend’s house in Maidstone. Several hours later, Phu arrived home. He had a bandage around his head, and another around his elbow.
Phu gave evidence that on the night in question he was asleep on a couch in Memisevic’s workshop. His description of the events of that early morning accorded, broadly, with that given by Memisevic. He said that he had been assaulted at the workshop by the men, and robbed of $2,000 in cash. He said that he recognised one of the men as ‘Ali’, whom he had met once before. He was shown Exhibit B, the shotgun, and agreed that it was similar to the weapon used in the course of the robbery.
Phu then described having been carried to a car, and locked in the boot. He gave a detailed account of what had happened to him thereafter. He said that he had been driven to a hotel in Caroline Springs, where the men had apparently rented a suite with a living room and a bedroom. Subsequently, on the afternoon of 17 January, he was taken from that hotel to a second location, a motel. There, he claimed he had been threatened, and forced to remove his clothing. He had also been required to take a cold shower. He said that he was then placed in front of an air-conditioner until he shivered with cold.
Phu said that he attempted to escape, but was prevented from doing so, and beaten. The men who abducted him then drove him to ‘the mountain’, pulled him out of the car, and once again, beat him. One of the men, who was said to be Maghrabi, then deliberately cut him with a knife from the ear along the jawline, and also slashed his right elbow.
The men put Phu in the boot of the car, and wiped the blood from his cuts. They then put him into the passenger seat, and drove off. They forced him to telephone both his cousin and uncle with a view to securing $100,000 in exchange for his release.
A firearms expert, Leading Senior Constable Allan Pringle, gave evidence that he had examined the sawn-off shotgun found by police in McDonald’s bedroom. It was a 12-gauge double barrel side-by-side shotgun. He said that a 12 millimetre gauge is two millimetres greater in diameter than a 16-gauge shotgun. He said that he would not be able, readily, to tell the difference between a 12-gauge and 16-gauge shotgun, and would have to study the diameter closely. He agreed that it was a common type of firearm, in a fairly generic colour.
Finally, as previously indicated, Sergeant Bray gave evidence of voice identification. He said that he had spent approximately four weeks, in eight hour shifts, listening to the phone calls that had been intercepted under warrant concerning the ransom demands. He said that he had become familiar with the voices on the intercepts and, as a result, felt that he could identify whoever’s voice it was on each particular call.
The intercept recordings were played in open court. Sergeant Bray identified the voice of the applicant in several of the calls.
The defence called no evidence.
The conviction appeal – proposed ground 1
In the course of a pre-trial hearing, conducted in November 2012, some months before the trial itself began, the Crown indicated that it would seek to tender the evidence of the finding and seizure of the shotgun from McDonald’s bedroom. Counsel for both Maghrabi and McDonald (the latter had not yet absconded at that stage) submitted that the evidence concerning the weapon should not be admitted.
The trial judge ruled that the evidence was admissible. His Honour concluded that it was relevant to a fact in issue, namely the identity of at least one of the offenders, and on the basis of joint criminal enterprise, all of them. He went on to say that he would not exclude the evidence in the exercise of the power conferred by s 137 of the Evidence Act 2008. He concluded that the probative value of that evidence was not outweighed by any potential prejudice that it might engender.
In arriving at that conclusion, the trial judge recognised that there was some element of risk associated with the admission of the evidence concerning the finding of a sawn-off shotgun in McDonald’s home. However, he considered that the risk could be largely overcome by giving the jury an appropriately worded anti-propensity warning. He added that he would be prepared to reconsider his ruling regarding the admissibility of this evidence during the course of the trial, depending upon how the evidence of joint criminal enterprise turned out. Nonetheless, at the pre-trial stage, his view was that this evidence was admissible against all of the alleged co-offenders.
The trial judge, in his ruling, paid careful attention to the evidence given by Memisevic as to the weapon that had been wielded during the course of the robbery. Memisevic had described it as a sawn-off shotgun, with a dark coloured stock, and a break-open mechanism. He said that it had dark coloured barrels, and appeared to him to be a 16-gauge. Importantly, he added that the man armed with the shotgun was wearing white surgical gloves.
His Honour, in the course of his ruling, summarised the police evidence regarding the search conducted on 17 February 2011 at McDonald’s home. The police located a sawn-off double barrel shotgun in a red pillow case, with a pair of white cotton gloves somehow wrapped around it. The trial judge said that the shotgun, Exhibit B, seemed to him to match, broadly speaking, the description given by Memisevic. He referred to the evidence given by Leading Senior Constable Pringle as to the difference between a 12-gauge and 16-gauge shotgun. He noted that Mr Pringle had said that it was difficult to tell these weapons apart without close inspection. He also noted that there was DNA evidence linking McDonald to the weapon.
The trial judge observed, tellingly, that only McDonald and Maghrabi had sought to have this evidence excluded. The applicant made no such application, merely contenting himself with saying words to the effect that he had nothing to add. He accepted that the very fact that a weapon of this kind had been found in McDonald’s possession was, itself, prejudicial, so far as he was concerned. He recognised, as was blindingly obvious, that such a weapon would be likely to be seen by a jury as ‘standard criminal kit’.
The Crown, on the other hand, pointed to the link between the weapon itself, and the white gloves found wrapped around it. It was that proximity that was said to make the case for admissibility a powerful one.
The trial judge referred to Thompson and Wran v The Queen,[1] a decision of the High Court. In that case, the appellants had been charged with breaking, entering, and stealing. The Crown led evidence that they were found to have in their possession implements for opening or breaking into safes, including tools which, self-evidently, had not been used in the course of carrying out the particular act of safe-breaking that was the subject of the trial. That was because the safe had been blown open by explosives, rather than being forced open by the use of tools of the kind located.
[1](1968) 117 CLR 313.
The High Court held that the evidence of the safe-breaking kit found in the appellants’ possession was not admissible. Importantly, however, Barwick CJ and Menzies J said:
Evidence that the prisoners had in their possession material which might have been used to break into and steal from the Darwin Bowling Club or the Darwin Squash Club or was of the same character as what was used in the commission of those crimes was admissible to identify them with the crimes, e.g. a jimmy to break in or a supply of gelignite, detonators, wires and batteries suitable for the blowing of the safes. Some of the evidence admitted, however – of which instances have already been given – did no more than tend to show that the prisoners were well equipped safe breakers.[2]
[2]Ibid 316.
The difference between Thompson and Wran, on the one hand, and the facts of this case, on the other, was said to be apparent from that passage. There was nothing to suggest that the weapon found in McDonald’s home had not been used in the commission of the robbery, and some evidence to suggest that it may have been. That was said to be a far cry from Thompson and Wran, where it was perfectly clear that much of the equipment found in the appellants’ possession could not have been used to blow a safe. It was simply a professional burglar’s kit. As such, it was rank propensity evidence.
His Honour did say, of course, as we have indicated, that any prejudice associated with the admissibility of this evidence could be dealt with by an appropriate anti-propensity warning. He also said that he would reconsider the admissibility of this evidence at the conclusion of the Crown case. In fact, he was never asked, during the course of the trial, to give such a warning, or to reconsider the admissibility of the evidence as against the applicant.
Conclusion regarding ground 1
Counsel submitted that the trial judge was required to direct the jury, as he had intimated that he would, first, that they could only use the evidence of the finding of the shotgun at McDonald’s home for the limited purpose of connecting the applicant with the crime; and, secondly, that they could not reason from that evidence that the applicant was the ‘kind of person’ likely to have committed the offences with which he was charged.[3] He relied upon the fact that, when ruling on the admissibility of the evidence at the pre-trial hearing, the judge had accepted that ‘a proper anti-propensity logic warning’ would ameliorate any risk of improper prejudice.
[3]Counsel relied solely on R v Grech [1997] 2 VR 609, 614 (Callaway JA; Phillips CJ and Smith AJA agreeing).
In his charge to the jury, however, the judge did not — despite his earlier observations about the desirability of such a warning — direct the jury that they could not reason in the impermissible way.
Accepting for present purposes that a warning against the use of propensity reasoning might have been prudent,[4] it is a fact that counsel at trial took no exception to the charge. The issue could not have escaped his attention. He addressed the jury on the finding of the shotgun. His arguments — that the jury should not be ‘misled’, and that they could not be satisfied that the firearm located by police was the same shotgun used in the offending — were summarised by the judge.
[4]A warning against propensity reasoning was given by the trial judge in R v Debs (2008) 191 A Crim R 231, in circumstances where a revolver and ammunition of the same kind used to murder the victim (and other firearms) were found at a house formerly occupied by the applicant’s mother (at 241–2 [50]). See also R v Georgiev (2001) 119 A Crim R 363; R v Gangi [2004] VSCA 244.
Counsel for the applicant submitted that trial counsel’s failure to ask for a warning against the use of propensity reasoning could not be viewed as a rational forensic decision. That submission must be rejected. It may be that counsel did not wish to highlight the evidence, and the way in which it might legitimately have been used against his client. That would have been an understandable forensic choice. Hence, the failure to seek a warning of the kind now said to have been necessary may well have been the product of a perfectly rational tactical decision, seeking to avoid the risk of giving the evidence undue emphasis.
Trial counsel was imbued with the atmosphere of the trial, yet he apparently saw no need for the directions, now said to have been of critical importance, to have been given. Had he seen such a need, it might have been expected that he would have taken the appropriate exception.
It must be emphasised, yet again, that it is the obligation of counsel at trial to seek directions which are perceived necessary to ensure the fair trial of the accused. The failure to take exception to a material non-direction presents a serious obstacle in the way of the ventilation of such matters on appeal. Counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court, and the failure to take exception may prevent the issue being raised on appeal.[5]
[5]R v Wright [1999] 3 VR 355, 356 [2] (Phillips CJ and Charles JA).
In view of these matters, we are not persuaded that the failure to give the anti-propensity warning that had been foreshadowed gave rise to a substantial miscarriage of justice.
Ground 1 cannot be upheld. The application for leave to appeal against conviction must be refused.
The sentence appeal
There are two grounds in support of the application for leave to appeal against sentence:
1.The sentence imposed upon the applicant is unjustifiably disparate with the sentence imposed upon the co-accused George Maghrabi.
2.The total effective sentence is manifestly excessive.
As we have indicated, the applicant received a total effective sentence of 14 years and 6 months, with a non-parole period of 11 years. His co-offender Maghrabi was sentenced, for the same offending, to a total effective sentence of 11 years, with a non-parole period of 7 years and 6 months.
We can deal swiftly, and briefly, with proposed ground 2. The total effective sentence of 14 years and 6 months, though undoubtedly stern, cannot be said to have been manifestly excessive. This was extremely serious offending, warranting severe punishment. None of the individual sentences imposed was outside the range reasonably available for offending of this gravity. In addition, the orders for cumulation were all perfectly proper.
Had ground 2 stood alone, with no separate ground relating to parity, we would have refused leave to appeal against sentence.
However, as is sometimes the case where there are multiple offenders, that is not the end of the matter. Undue disparity can, on occasion, call for appellate intervention in circumstances where there is nothing basically wrong with the sentence imposed, at least if viewed in isolation.[6]
[6]See generally Lowe v The Queen (1984) 154 CLR 606, [3]; Postiglione v The Queen (1997) 189 CLR 295, 301; Green v The Queen (2011) 244 CLR 462, [32].
The sentencing judge was, of course, fully aware of the need to have regard to considerations of parity when dealing with the applicant, and his co-offenders. His sentencing remarks, not surprisingly, indicate that he gave careful attention to that matter.
As his Honour noted, there were two points of distinction between the applicant and Maghrabi.
The first concerned their respective ages. The applicant was 27 years of age at the time the offences were committed, and 29 years old when he came to be sentenced. Maghrabi was 20 years of age at the time of the offending, and 22 years old when he came to be sentenced.
The difference in their respective ages meant that, although the applicant was still a relatively young man, he could not call in aid, to the same degree, the principles regarding sentencing of young offenders laid down in R v Mills.[7]
[7][1998] 4 VR 235.
The second concerned their respective criminal records. The applicant had, between 2002 and 2010, sustained some 40 prior convictions from nine court appearances. In the main, these convictions related to dishonesty, theft and minor drug offences. However, the applicant had also sustained two convictions for possessing a prohibited weapon. One concerned possession of a ‘knuckle duster’, for which the applicant was ordered to perform 14 hours of unpaid community work. The second involved possession of a samurai sword that had been hanging on the wall of his parents’ home, for which, in October 2010, he received an Intensive Corrections Order.
The applicant also had several convictions for failing to appear, and failing to comply with a Community Based Order. Importantly, however, he had never previously been convicted of any offence involving violence, and most importantly, had never before been sentenced to a term of imprisonment, or at least, a term of imprisonment to be served custodially.
Maghrabi, on the other hand, had only two prior convictions, both for drug related matters. One was for trafficking in a drug of dependence, and the other for using a drug of dependence. Both offences occurred whilst Maghrabi was still a minor, and had been dealt with in the Children’s Court. He had received a bond encompassing both offences.
It should be noted, in that regard, that both the applicant and Maghrabi were drug users, and each of them had experienced difficulties with addiction.
The difference between their respective criminal records certainly explains why the applicant received a longer term of imprisonment than did Maghrabi. At the same time, it must be acknowledged that the applicant’s criminal history could hardly be described as extensive, consisting mainly of minor offences, largely involving dishonesty, as well as some small-scale drug offending.
It must not be forgotten that it was Maghrabi, and not the applicant, who slashed Phu with the knife, causing him serious injury. Although the applicant bears responsibility for that act, under the doctrine of joint criminal enterprise, it can at least be said that Maghrabi’s moral culpability was, to that extent, greater than the applicant in respect of that particular offence.
Given that both the applicant and Maghrabi were regular drug users, it cannot be said that Maghrabi was a person of hitherto unblemished character. The fact that he was only brought to book on two occasions, and only in the Children’s Court, did not entitle him to be treated as a person who had never previously contravened the law.
In our opinion, it was open to his Honour to impose a total effective sentence of 14 years and 6 months’ imprisonment upon the applicant, while at the same time imposing a lesser sentence of 11 years upon Maghrabi. The difference of 3 years and 6 months was perhaps at the outer limit of what parity might permit, but could be understood, having regard to their respective ages and criminal records.
The position is more problematic when considering their respective non-parole periods. As we have indicated, the applicant received 11 years, and Maghrabi 7 years and 6 months. Here the difference, once again, is 3 years and 6 months. Self-evidently, that period is the same in absolute terms as the difference between their respective total effective sentences.
Viewed through an alternative prism, however, the matter takes on a somewhat different complexion. Maghrabi’s 11 year sentence represents approximately 76 per cent of the applicant’s 14 and a half year sentence. And yet the ratio between Maghrabi’s 7 and a half year non-parole period and the applicant’s 11 year non-parole period represents only about 68 per cent.
Without reducing the matter to crude arithmetical terms, the applicant is entitled to say, as he did during the course of oral argument, that the disparity between his non-parole period and that of Maghrabi is substantially greater, at least in percentage terms, than the disparity between the two total effective sentences. Yet, intuitively at least, one would ordinarily expect the ratios, expressed as percentages, to be broadly similar.[8]
[8]Consider, for example, two sentences, one of 15 years with a 10 year non-parole period, and one of 12 years with an 8 year non-parole period. The total effective sentence of the lesser offender would be 4/5ths of the main offender. The non-parole period would also be 4/5ths. However, there would be a three year gap between the total effective sentences, and a lesser gap of only two years between the two non-parole periods. In other words, all else being equal, one would normally expect the non-parole periods to be closer in absolute terms than the total effective sentences.
We have given careful consideration to whether the applicant falls within that unusual category of offender who has a ‘legitimate’ or ‘justifiable’ sense of grievance, arising out of this disparity. We recognise that the test for undue disparity, as a ground of appeal, is a stringent one. We also recognise that where a judge has given careful attention to all of the relevant sentencing considerations applicable to the respective co-offenders, as this judge plainly did, a ground of parity will rarely succeed.[9]
[9]Hilder v The Queen [2011] VSCA 192; DPP v Karazisis (2010) 31 VR 634, [124]–[128].
Nonetheless, in the present case, we have concluded that the applicant is entitled to feel aggrieved at the difference between his non-parole period and that of Maghrabi. Try as we might, we cannot see how the two points of distinction between these two offenders, their ages and criminal records, warrant such a substantial difference between their respective non-parole periods.
For that reason, and that reason alone, we would reduce the applicant’s non-parole period from 11 years to 9 years and 6 months. That would bring about a change to the percentage ratios between the two non-parole periods that would more closely align them to the respective relationships between the total effective sentences.
We acknowledge that in approaching the matter in this way, we might be seen to be taking a somewhat benevolent course. Certainly, we are in no way impugning the individual sentences imposed upon the applicant. The problem lies in the fact that, if anything, Maghrabi was treated with a fair degree of leniency.[10]
[10]Although we have used the term ‘leniency’ in relation to Maghrabi, at least in respect of his non-parole period, it cannot be said that his sentence was inadequate in any legal sense. By reducing the applicant’s non-parole period to bring it more closely into line with that of Maghrabi, we are in no way condoning the imposition of an inadequate sentence upon either offender.
It must be remembered that the applicant is a relatively young man who has never previously undergone a custodial sentence, let alone a sentence of this order. The burden of knowing that Maghrabi will be eligible for parole some 3 and a half years sooner than him, despite the fact that both men were adjudged to be equally culpable in the commission of these offences, would give rise, in the applicant’s case, to a justifiable sense of grievance. It is for that reason that we would moderate the applicant’s sentence to the limited degree set out above.
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