Kerapa v The Queen
[2017] VSCA 56
•20 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0232
| LAYEN KERAPA | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | REDLICH and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2017 |
| DATE OF JUDGMENT: | 20 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 56 |
| JUDGMENT APPEALED FROM: | DPP v Kerapa (Unreported, County Court Of Victoria, Judge Taft, 3 August 2016) |
---
CRIMINAL LAW – Appeal – Sentence – Aggregate sentence for two offences founded on the same facts – Aggravated burglary and recklessly causing injury – Whether appropriate to impose an aggregate sentence – Whether offences varied significantly in seriousness so as to require transparency as to the sentence on each charge – R v Grossi (2008) 23 VR 500, 510 [39] applied – Seriousness not determined by maximum penalty – DPP v Frewstal Pty Ltd (2015) 47 VR 600; R v Fitzpatrick [2016] VSCA 63; R v Saxon [2014] VSCA 296 considered.
CRIMINAL LAW – Sentence – Attack on manager of hotel after entry into office with intent to assault – Confrontational burglary in private part of workplace – Whether less serious than confrontational aggravated burglary of private residence – Aggregate sentence of 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 3 months for aggravated burglary and recklessly causing injury – Intent to assault – Serious form of aggravated burglary – Serious example of recklessly causing injury – TS v The Queen [2014] VSCA 24; Joseph v The Queen [2014] VSCA 343; DPP v Anderson [2013] VSCA 45; Saltalamacchia v The Queen [2010] VSCA 83; Alexopoulos v The Queen [2010] VSCA 52; Cubullos v The Queen [2011] VSCA 380 considered – Leave granted but appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Glynn | Haines & Polites |
| For the Respondent | Mr D A Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA:
Introduction
The applicant having pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing injury was sentenced in the County Court to an aggregate term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months.
The applicant seeks leave to appeal this sentence on two grounds:
1. That the learned sentencing judge erred by imposing an aggregate sentence.
2. That the sentence imposed was manifestly excessive, given
(a) the nature of the aggravated burglary;
(b) current sentencing practices; and
(c) the matters going in mitigation.
For the reasons that follow we would grant leave to appeal and dismiss the appeal.
The facts of the offending are conveniently set out in the sentencing judge’s remarks:
On the evening of 1 December 2015, Patrick Cartwright was working as the night manager at The Gatwick Private Hotel (‘the Hotel’). The Hotel prohibits residents from having visitors after 9.00pm. At approximately 1.40am on 1 December 2015, you arrived at the Hotel on a bicycle. [The applicant] and four other persons climbed onto a wheelie bin and entered a hotel room through an open window. When inside the room, [the applicant] drank alcohol and became angry with [his] sister who was staying in the hotel.
At about 2am [the applicant] entered the office area where Mr Cartwright worked and yelled:
‘You’re dead, ya fat pig, my mate’s friends can come in whenever they want.’
Mr Cartwright began to rise from his chair and [the applicant] threw punches, two of which landed on his head. As Mr Cartwright exited the office area into the foyer of the hotel, he was again punched and as [the applicant] climbed the nearby stairs, Mr Cartwright followed [him] and told you that if [the applicant] did not leave, he would call the police. Mr Cartwright went back down the stairs and [the applicant] pursued him, punching him in the head and kicking him in the head whilst calling him a dirty dog and a cunt. Mr Cartwright fell to the floor and whilst in that defenceless and helpless position [the applicant] kicked him in the face before leaving the hotel.
As a result of the assault, Mr Cartwright complained of a bleeding nose, a black eye, a sore back and headaches for a week. I consider it most fortunate indeed that he did not sustain more serious injuries.
[The applicant was] quickly arrested and conveyed to the St Kilda Police Station where [he] cooperated with police and confessed [his] wrongdoing.[1]
[1]DPP v Kerapa (Unreported, County Court of Victoria, Judge Taft, 3 August 2016) (‘Reasons’) [3]–[7].
Pursuant to s 9 of the Sentencing Act 1991, an aggregate sentence may be imposed where two or more offences are ‘founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’.
The sentencing judge said towards the conclusion of the plea in mitigation that he considered it appropriate to impose an aggregate sentence as the offences occurred in the course of a continuing episode. No objection was raised by defence counsel thereafter to that proposed course. On appeal senior counsel for the Director submits that the failure of defence counsel to object to that course at the time was fatal. He submits, citing, Romero v The Queen,[2] that this Court should not entertain arguments directed to a matter of sentencing discretion that could have been, but were not, advanced on the plea. He accepts however that any failure by defence counsel in that regard cannot preclude an argument that goes to the jurisdiction to impose an aggregate sentence.
[2](2011) 32 VR 486, 489–90 [11].
The applicant rightly concedes that the two offences were founded on the same facts. The facts disclosed that at the time of entry into the victim’s office, the applicant’s intent was to assault the victim. That intent was to be inferred from the assault which occurred immediately upon the applicant entering the victim’s office. Thus there was both a factual and temporal nexus between the two charges.
The applicant contends that it was inappropriate to impose an aggregate sentence because the two charges ‘differed greatly in their maximum penalty.’ It was asked rhetorically: how does the court then steer by the maximum? In support of these contentions the applicant relies on observations made in Director of Public Prosecutions v Frewstal Pty Ltd[3] and R v Fitzpatrick.[4]
[3](2015) 47 VR 660 (‘Frewstal’).
[4][2016] VSCA 63 (‘Fitzpatrick’).
Frewstal was a Director’s appeal in which complaint was made that the aggregate fine imposed on three charges was manifestly inadequate. The offences were not founded on the same facts. Maxwell P referred to the passage from the judgment of Legoe J in R v Nixon[5] that the power to order an aggregate sentence is a discretion which is unfettered. Having said that the offences were not ‘founded on the same facts’ Maxwell P went on to say, in that context, that:
The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest order for cumulation, to arrive at a total effective sentence proportionate to the total criminality.[6]
[5](1993) 66 A Crim R 83, 85–6.
[6]Frewstal (2015) 47 VR 660, 670 [44].
Priest and Kaye JJA stated in their joint reasons:
Although s 51 does not limit the kinds of offences for which an aggregate fine may be imposed — and to that extent ostensibly permits an aggregate in the case of any two or more offences founded on the same facts, or which are of the same or similar character — an undeniable problem associated with resort to an aggregate fine is that it adds opacity to the exercise of the sentencing discretion. Aggregate fines may be very convenient in a busy Magistrates’ Court, where a magistrate may be required to sentence for a number of offences arising out of similar circumstances, but their utility in a case such as this is to be doubted. That is particularly so where the prosecution contends that the circumstances of each charge are distinct and are without overlap. Indeed, for cases that ‘arise out of the same factual circumstances’, s 33(2) of the [Occupational Health and Safety Act 2004] permits two or more contraventions to be charged as a single offence. In such a case, however, subsection (4) makes clear that ‘a single penalty only may be imposed in respect of those contraventions’.
Presumably, the prosecution thought that it was not appropriate to employ a single charge for the three contraventions of the [Occupational Health and Safety Act 2004] that were distinctly charged in the indictment. That being so, it is somewhat curious that the prosecution then acquiesced in the imposition of an aggregate fine, in circumstances in which a sentencing court is not required to identify separate events giving rise to specific charges, and is not required to announce the fines that would have been imposed for each offence had separate sentences been imposed. As a result, it has been difficult — if not impossible — for this Court, by recourse to the penalty imposed, to gauge the seriousness with which the sentencing judge regarded the individual breaches alleged. At least in part, that situation was brought about by the prosecution’s attitude to the appropriateness of imposing an aggregate fine.[7]
[7]Ibid 683 [115]–[116].
For these and other reasons, they concluded that the appeal should be dismissed as the prosecution had brought about the imposition of an aggregate fine of the order imposed.
The charges in Fitzpatrick were also not founded on the same facts. They included persistent contravention of a family violence intervention order, common assault, making a threat to kill, multiple charges of thefts, criminal damage and unlicensed driving. Moreover the offences were of quite different orders of seriousness. The joint reasons in Fitzpatrick cited with approval the passage from the judgment of Redlich JA in R v Grossi[8] to which Professor Freiberg made reference that ‘an aggregate sentence may not be appropriate where the counts “vary significantly in their seriousness or the manner in which the offences were committed”’.[9] The ‘seriousness’ of the offence is the objective gravity of the conduct, not the maximum penalty which the offence carries. That was recognised in Fitzpatrick where the common assault which carried a maximum of five years’ imprisonment was viewed as significantly more serious than the conduct encompassed within Charges 3, 4, 5, and 6 which all carried 10 year maximum penalties.[10]
[8](2008) 23 VR 500, 510 [39] (Redlich JA).
[9][2016] VSCA 63 [48], quoting Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 807, citing R v Grossi (2008) 23 VR 500 and R v Felton (2007) 16 VR 214.
[10][2016] VSCA 63 [49].
The applicant further submits that it was necessary for the punishment imposed for each offence to be made clear. The applicant relies upon the observation in Beevers v The Queen[11] that resort to an aggregate sentence made the sentence imposed by the judge ‘somewhat opaque’.[12]
[11][2016] VSCA 271.
[12]Ibid [41].
The decisions of this Court in R v Felton[13] and R v Grossi[14] required a sentencing judge to consider the sentence that would have been imposed for each individual offence, as well as the degree of concurrency or cumulation required in arriving at an aggregate sentence. But following those decisions s 9(4) of the Act was introduced. It provides that if a court imposes an aggregate sentence of imprisonment in respect of two or more offences, the court is not required to identify separate events giving rise to specific charges and is not required to announce the sentences that would have been imposed for each offence had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively.[15]
[13](2007) 16 VR 214.
[14](2008) 23 VR 500, 510–11 [39].
[15]Justice Legislation Amendment Act 2010 s 5.
In R v Saxon[16] Weinberg JA in delivering the primary judgment said that s 9(4) should be interpreted broadly saying:
It would be extraordinary to think that the legislature would respond to Felton, a decision that was plainly viewed as unsatisfactory from a policy perspective, by enacting a provision which would have the effect of preserving, in essence, the very reasoning in that case.[17]
[16][2014] VSCA 296.
[17]Ibid [29].
The statute relieves the sentencing judge of the need for transparency as to what individual sentences or cumulation the judge might have considered appropriate when arriving at an aggregate sentence. Weinberg JA further said in Saxon that aggregate sentences were useful in circumstances of overlapping criminality and that ‘in imposing an aggregate sentence, the court is necessarily looking at the totality of the offending conduct, and imposing a single sentence in respect of that conduct as a whole’.[18]
[18]Ibid [34].
The applicant acknowledges that the aggregate sentence imposed here is very similar to that imposed in R v Saxon.[19] In that case, the offender had received an aggregate sentence for one count of aggravated burglary, one count of common assault and one contravention of a family violence intervention order committed in the context of family violence. The applicant submits however that Saxon should not be viewed as having considered whether an aggregate sentence for such a combination of offences was appropriate. The Court did not indicate that such a course was inappropriate despite the argument that the use of an aggregate sentence gave risk of double punishment. Weinberg JA said:
Once it is accepted that the sentencing judge, when imposing an aggregate sentence in the exercise of the power conferred by s 9, is entitled, and indeed bound, to consider the offender’s conduct as a whole, and not descend into the detail of the individual components of the offending, the question of double punishment is unlikely to arise.[20]
[19]Ibid.
[20]Ibid.
Finally the applicant argued that as there were only two offences an aggregate sentence was not appropriate. That submission is unsustainable. The legislation applies to ‘two or more offences’.
Manifest excess
The applicant seeks to demonstrate manifest excess by examining the sort of sentence that the individual sentences would have attracted. We assume without deciding that it may be legitimate to assess the aggregate sentence in that way.
Aggravated burglary carries a maximum penalty of 25 years’ imprisonment and recklessly causing injury carries a maximum penalty of 5 years’ imprisonment.
On the plea it was submitted that the aggravated burglary was ‘at the lower end of seriousness’ for offences of this kind. On appeal the submission goes further. It is now suggested that the offence is ‘technical in nature’ and that it was ‘highly questionable whether that offence warranted imprisonment’. It follows from this, it is said, that the sentence imposed is either the result of the sentencing judge having wrongly assessed the seriousness of the aggravated burglary or alternatively allowed too much for recklessly cause injury.
The assumption underlying the submission as to the seriousness of the aggravated burglary was not stated. It appears to have been assumed that entry into the victim’s office, with the intention of assaulting the manager, is a confrontational burglary of a much lesser order of seriousness than entry into a private residence with such an intention. Such an assumption must be rejected.
The Attorney-General explained at the time that the maximum penalty for aggravated burglary was increased to 25 years, that it is aimed at the prevalence of ‘burglary and home style invasion’ which ‘undermines the sense of security that people feel in their homes and workplaces.’[21] The applicant was not entitled to be in the building at all at that hour of the night. He invaded the private workplace of the night manager violating his peace and security. The consequences for the victim, as his impact statement discloses, were the same as they are for a victim who is the subject of an aggravated burglary in a private residence. To this consideration must be added the particular circumstance of aggravation; namely that the entry was accompanied by an intention to assault the manager in his office. That is a most serious form of aggravation exacerbating the seriousness of the offence. The applicant’s prior convictions for burglary bore upon the assessment of the applicant’s prospects for rehabilitation and meant that specific deterrence assumed some importance. A not insubstantial term of imprisonment would have been warranted for that offence, it carrying a 25 year maximum penalty.
[21]Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873 (Jan Wade, Attorney-General).
The applicant submits by reference to a number of cases,[22] that the sentence imposed is outside the range available for recklessly causing injury, even allowing that it was a serious example of the offence. In Joseph v The Queen,[23] the offender was sentenced to 12 months’ imprisonment on the charge of recklessly causing injury, but in combination with charges for aggravated burglary, armed robbery, kidnapping, intentionally causing serious injury and blackmail. The Court of Appeal reduced his total effective sentence to nine years and six months’ imprisonment on appeal in the interests of parity with a co-offender. In Director of Public Prosecutions v Anderson,[24] the offender was sentenced to 12 months’ imprisonment on the charge of recklessly causing injury, but in combination with a charge of theft and a charge of intentionally causing serious injury. The Court of Appeal increased the sentence of imprisonment on the charge of intentionally causing serious injury from four years’ imprisonment to six years’ imprisonment, with the sentences on the other two charges to be served concurrently. In Saltalamacchia v The Queen,[25] the offender was charged with making a threat to kill, aggravated burglary, two counts of recklessly causing injury and criminal damage. He was sentenced to 12 months’ imprisonment on each of the recklessly causing injury charges. The Court of Appeal resentenced him to three years’ imprisonment suspended after time served for three years due to further consideration of mitigating factors. On the individual charges, he was sentenced to 12 months’ imprisonment for each of the recklessly causing injury charges, two years’ imprisonment for making a threat to kill, two years’ imprisonment for the aggravated burglary and eight months’ imprisonment for criminal damage. In R v Alexopoulos,[26] the offender was convicted of causing injury recklessly after a jury trial which considered charges of causing serious injury intentionally, causing serious injury recklessly, and intentionally damaging property in relation to an altercation with a security guard at Crown Casino. The Court of Appeal refused leave to appeal his sentence of 12 months’ imprisonment with a non-parole period of 6 months. In Cubillos v The Queen,[27] the offender was convicted of causing injury recklessly and acquitted of five other charges including intentionally causing injury, indecent assault, making a threat to kill, making a threat to inflict serious injury and false imprisonment. He was refused leave to appeal his sentence of 15 months’ imprisonment (of which 10 months was suspended for two years). In TS v The Queen,[28] the offender was resentenced to a total effective sentence of two years’ and six months’ imprisonment with a non-parole period of 18 months for one charge of aggravated burglary, one charge of causing injury recklessly and one charge of theft. He received two years’ imprisonment for the aggravated burglary charge, 12 months’ imprisonment for the causing injury recklessly charge and one month’s imprisonment for the theft. His total effective sentence was reduced from three years and six months’ imprisonment with a non-parole period of two years due to fresh evidence that required greater consideration of Verdins principles.
[22]TS v The Queen [2014] VSCA 24; Joseph v The Queen [2014] VSCA 343; DPP v Anderson [2013] VSCA 45; Saltalamacchia v The Queen [2010] VSCA 83; Alexopoulos v The Queen [2010] VSCA 52; R v Black [2007] VSCA 82; Cubullos v The Queen [2011] VSCA 380; DPP v Bickley [2005] VSCA 103.
[23][2014] VSCA 343.
[24][2013] VSCA 45.
[25][2010] VSCA 83.
[26][2010] VSCA 52.
[27][2011] VSCA 380.
[28][2014] VSCA 24.
Most of the decisions show a coalescing of sentences towards 12 months’ imprisonment. In all but one of these cases the recklessly causing injury charge was sentenced alongside more serious offending. The decisions relied upon do not demonstrate that a not insubstantial term of imprisonment was required in the present circumstances. We are quite unable to infer from the aggregate sentence that the sentencing judge must have treated the charge of recklessly cause injury more seriously than was warranted. As we have pointed out, the applicant’s argument that his Honour must have done so rests upon the fallacy that the offence of aggravated burglary could not have contributed in any significant way to the aggregate sentence.
The applicant also submits that a number of mitigating factors applied which should have resulted in a lower aggregate sentence. These include an early guilty plea, remorse, youth, the disadvantage of being in prison lockdown during riots at the Metropolitan Remand Centre, efforts towards rehabilitation, a background of social disadvantage and deprivation, and the prospect of deportation to New Zealand.
The sentencing judge made reference to these factors in his sentencing remarks.[29] With regard to the risk of deportation, we note that it is enough that his Honour had regard to the additional hardship this may place on the applicant while in custody. The sentencing judge was not required to give substantial weight to the prospect of deportation.[30] We note that his Honour imposed a moderate non-parole period that represents 50 per cent of the head sentence. The mitigating factors do not compel the conclusion that the sentence imposed was not open to the judge.
[29]Reasons [14]–[25].
[30]See Nguyen v The Queen [2016] VSCA 198.
The aggregate sentence was required to reflect the applicant’s overall criminality. The applicant is not able to demonstrate that the sentence imposed fell outside a sound exercise of the sentencing discretion.
We should make this additional observation. Even if the first ground of appeal had been made out that it was not open to the judge to impose an aggregate sentence, we would have exercised the power contained in s 280 of the Criminal Procedure Act 2009 to refuse leave to appeal. There was no reasonable prospect that we would have imposed individual sentences which would have resulted in a total effective sentence or non-parole period less severe than the aggregate sentence or non-parole period fixed by the learned sentencing judge.
For the above reasons, the appeal must be dismissed.
- - -
7
16
0