Kettyle v The Queen

[2019] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0099
S APCR 2019 0026

John Kettyle	Applicant
V
The Queen	Respondent

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JUDGES:	WHELAN, KYROU JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2019
DATE OF JUDGMENT:	7 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 220
JUDGMENT APPEALED FROM:	[2017] VCC 1975 (Judge Ryan)

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CRIMINAL LAW – Application for leave to appeal against conviction – Ground of duplicity – Convicted of prohibited person possess firearm and own general category handgun without licence in respect of same firearm – Elements of offences not wholly included in one another – Application dismissed – Pearce v The Queen (1998) 194 CLR 610 applied; R v Langdon (2004) 11 VR 18, R v Sessions [1998] 2 VR 304 referred to.

CRIMINAL LAW – Application for leave to appeal against conviction – Exceed speed limit – Conviction unsupported by evidence – Conceded by respondent – Conviction and sentence set aside.

CRIMINAL LAW – Application for leave to appeal against conviction – Possess unregistered handgun – Convicted of indictable offence without arraignment – Conceded by respondent – Conviction and sentence set aside.

CRIMINAL LAW – Application for leave to appeal against sentence – Multiple driving, firearms and other offences – Total effective sentence 5 years 6 months’ imprisonment, non-parole period 4 years’ imprisonment – Proposed ground of manifest excess – Total effective sentence and non-parole period not arguably outside the range – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr C K Wareham	Valos Black & Associates
Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
KYROU JA:

1. On 20 November 2017 the applicant, John Kettyle, pleaded guilty in the County Court to offences on an indictment containing five charges of handling stolen goods, two charges of reckless conduct endangering life, and one charge of possessing a firearm whilst being a prohibited person.  In addition, he pleaded guilty to 40 related summary offences of failing to stop a vehicle on police request;  unlicensed driving;  speeding;  illegal possession, ownership and storage of ammunition and firearms;  displaying false number plates;  possession of property suspected of being the proceeds of crime;  and dangerous driving. 

1. The applicant was sentenced on 19 December 2017 to a total effective sentence of 5 years 6 months’ imprisonment, with a non-parole period of 4 years, and was fined a total of $1,000.

1. The sentencing judge published reasons for the sentence which he imposed.[1]  The individual sentences imposed on the charges on the indictment and on the related summary charges are set out in the schedule annexed.

   [1][2017] VCC 1975 (‘Reasons’).

1. The applicant now seeks leave to appeal against the conviction on three of the charges, and also seeks leave to appeal against the sentence on the ground that the individual sentences and the orders for cumulation are productive of a total effective sentence and non-parole period that are manifestly excessive.

The relevant offending

1. The offences for which the applicant was sentenced on 19 December 2017 were committed between 1 April 2016 and 20 July 2016.

1. On numerous occasions the applicant was detected driving at very high speed, most often on the Hume Highway between Wangaratta and Melbourne.

1. On four occasions police unsuccessfully pursued the applicant in an attempt to apprehend him.  On four occasions (including during two of the unsuccessful police pursuits) the applicant was in possession of stolen cars.  In addition to the pursuits, on two occasions after being stopped by police he evaded them by driving away.

1. The two offences of reckless conduct endangering life occurred in the course of two of the unsuccessful police pursuits.  The first, on 1 April 2016, occurred in the course of a police pursuit over approximately five kilometres along the Wangaratta-Yarrawonga Road.  The applicant reached speeds of over 150 kph and was observed by police to drive on the wrong side of the road several times towards oncoming traffic.  Due to the risk to other road users, police ceased pursuit.  The second, on 29 May 2016, occurred when an off-duty policeman observed the applicant overtaking him at high speed on the Hume Highway, and he alerted police.  The off-duty policeman observed the applicant to narrowly avoid a collision with another car and to drive onto the median strip.  On-duty police then pursued the applicant and the police air wing was called in to keep the applicant under observation.  The applicant reached speeds of 160 kph during the pursuit, which was again terminated due to safety concerns.  The air wing continued to observe the applicant’s vehicle which he abandoned at the Cranbourne Shopping Centre.  When the vehicle was inspected by police, 20 shotgun shells were found on the floor.

1. During the period of this offending the applicant was unlicensed, on bail and the subject of a suspended sentence.

1. The applicant was required as a condition of his bail to report to police.  He was arrested on 20 July 2016, when he reported to a police station as required by the conditions of his bail.  A search warrant executed at his home that day revealed a ‘Chiappa’ lever-action shotgun with a shortened barrel;  assorted knives, daggers and a machete;  40 shotgun shells;  a quantity of cash;  and the ignition key to a stolen car. 

The applicant’s criminal history

1. The sentencing judge summarised the applicant’s prior convictions as follows:

You admitted your prior convictions which include eight appearances between July 2004 and August 2015, resulting in 23 convictions or findings of guilt.  You have prior convictions for dishonesty, violence, motor vehicle and bail offences.  Your prior convictions occur when you were aged between 18 and 27 years.  You have been fined without conviction, fined with conviction, released on community-based orders, received suspended sentences and a term of imprisonment, together with a community correction order.[2]

[2]Reasons [3].

1. On 8 May 2014 the applicant was sentenced to 90 days’ imprisonment and was placed on a community correction order for 12 months at the Dandenong Magistrates’ Court after being convicted of the following offences:  intentionally damaging property, unlawful assault, failing to answer bail (2 counts), intentionally causing injury (3 counts), and affray.  On 4 August 2015 at the Dandenong Magistrates’ Court contravention of that community correction order was found proven and the applicant was sentenced to 8 months’ imprisonment which was wholly suspended for an operative period of 12 months.  The offending the subject of the applications before this Court occurred during that operative period.

Further relevant offending

1. In October and November 2015 the applicant committed offences of driving whilst disqualified, possession of methylamphetamine, possession of a prohibited weapon, and offences concerning possession of stolen goods and the proceeds of crime.  These offences were dealt with at the Melbourne Magistrates’ Court on 16 March 2017 and the applicant was sentenced to an aggregate term of imprisonment of seven days. 

1. The offences committed in October and November 2015 are not prior convictions in relation to the offences the subject of the applications now before the Court but, in addition to their potential relevance on the issue of prospects of rehabilitation, they are relevant for two further reasons.  First, they are offences for which the applicant was on bail at the time of the relevant offending.  One of the related summary offences (summary charge 21) was committing an indictable offence whilst on bail.  Secondly, for the purpose of the hearing at the Melbourne Magistrates’ Court on 16 March 2017 reports were obtained from the clinical psychologist, Carla Lechner, dated 24 November 2016, and from the neuropsychologist, Martin Jackson, dated 21 January 2017.  These reports were also relied upon in the plea hearing on 20 November 2017 in relation to the offending now the subject of these applications.

1. On 2 October 2018 the applicant pleaded guilty to one charge of trafficking a drug of dependence, namely methylamphetamine, between 19 May 2016 and 13 July 2016.  This offence was committed during the period when the offences the subject of these applications were committed.  He was sentenced at the Wangaratta Magistrates’ Court to a term of imprisonment of 12 months with an order that eight months of that sentence be served concurrently on the sentence the applicant was then serving, being the sentence which is the subject of the applications before us.  This offending is not a prior conviction but, in addition to its potential relevance to the applicant’s prospects of rehabilitation, it would be relevant in relation to totality if the applicant were to be re-sentenced.

The Lechner and Jackson reports

1. Ms Lechner saw the applicant on 22 November 2016.  In her report she began by referring to the offending in relation to which her report had been requested, being the offending in October and November 2015 which was eventually dealt with at the Melbourne Magistrates’ Court in 2017. 

1. Ms Lechner set out the applicant’s personal history in some detail.  At the time of the report he was 30 years of age.  He had had a somewhat difficult upbringing.  He had not got on well with his father and he reported that he had been the victim of physical violence from him.  He also reported that he had been bullied at school and that he was eventually expelled early in Year 8 ‘for fighting and not doing work’.  He left home at approximately the same time and had no fixed abode for a period before he eventually found work at about the age of 18. 

1. The applicant had a long term relationship with a woman and they had a son together who, at the time of Ms Lechner’s report, was 6 years old.  That relationship had ended.  At the time of Ms Lechner’s report the applicant was in a new relationship with a woman who had a daughter that the applicant said he was ‘effectively’ raising as his own child. 

1. Ms Lechner referred in some detail to an incident which had occurred in April 2015.  The applicant and a friend were the victims of a serious assault that occurred at the friend’s home.  Intruders entered the home, held the applicant and his friend at gunpoint, and seriously assaulted each of them.  The applicant received a number of blows to the head.  It seems that one of the intruders was shot dead.  Ms Lechner’s report records the applicant as having ‘witnessed’ this killing.  The applicant reported symptoms characterised by Ms Lechner as symptoms of severe post-traumatic stress disorder consequent upon this incident.

1. The applicant told Ms Lechner that he began drug use at about the age of 17 or 18.  He began smoking marijuana and over time his consumption had increased.  He had also tried ice but told Ms Lechner that he did not use ice regularly until after the April 2015 assault.

1. Ms Lechner assessed the applicant as being of average/low average intelligence.  She was concerned that he might have suffered a brain injury in the April 2015 incident and she strongly recommended that he undergo a full neuropsychological evaluation. 

1. Ms Lechner relevantly concluded as follows:

Mr John Kettyle aged 30 years, is before the Court pleading guilty to charges of drive whilst disqualified (October 2015) and possess Ice, possess weapon (knuckle-duster), retain stolen goods and possess proceeds of crime (November 2015).  These offences constitute a breach of suspended sentence imposed in August 2015.  The facts of this case are known to the Court, with this report focusing on Mr Kettyle from a clinical perspective.  Mr Kettyle presents with symptoms of Stimulant & Cannabis Use Disorder (DSM 5) in remission in a controlled environment and Post-Traumatic Stress Disorder (DSM 5).  In April 2015 he was the victim of serious assault and witnessed a person shot dead.  This gave rise to symptoms of PTSD that persist to the present and that have been aggravated by alleged threats on his life and that of his partner.  His condition has never been treated.  Mr Kettyle’s use of Ice escalated significantly as he attempted to ‘self-medicate’.  His offending is linked with both his mental health and drug addiction issues. 

1. Consequent upon Ms Lechner’s recommendation that there be a neuropsychological evaluation, Mr Jackson saw the applicant on 17 January 2017.  His report dated 21 January 2017 also begins by specifically referring to the matters that were to be dealt with at the Melbourne Magistrates’ Court on 16 March 2017. 

1. Mr Jackson set out a similar account of the applicant’s personal history to that which had been set out by Ms Lechner.  In relation to substance use, Mr Jackson reported that the applicant’s abuse of marijuana and ice had increased significantly after the April 2015 assault.  He reported the applicant as having told him that after the assault his use of ice ‘went through the roof’ and that he would use ‘as much as [he] could’.  He recorded the applicant as having said the use of ice enabled him to ‘feel better and stay up for days so that he did not go to sleep and then have bad dreams’.

1. Mr Jackson found that the applicant exhibited intellectual abilities in the low average and average range overall.  Some of the skills tested were in the extremely low range.  Mr Jackson considered that it was ‘very clear’ that the applicant had suffered ‘a significant psychiatric condition’ as a result of the incident which occurred on 11 April 2015.  Mr Jackson expressed the opinion that the applicant suffered from significant symptoms of post-traumatic stress disorder and anxiety and that he also reported very severe problems with depression.  Mr Jackson referred to medication being taken by the applicant and expressed the opinion that some of his cognitive difficulties could be due to that medication.  Because of that factor, and the applicant’s ongoing anxiety and post-traumatic stress disorder, Mr Jackson concluded that it was not possible to determine whether the applicant had sustained a traumatic brain injury in the assault in April 2015. 

The plea hearing

1. At the plea hearing extensive reference was made to the reports of Ms Lechner and Mr Jackson.  It was submitted that the principles in R v Verdins[3] were applicable.  The applicant’s partner, Ms Tara Reid, gave evidence.  Submissions were made, and evidence was given by Ms Reid, concerning the applicant’s time in custody.  The sentencing judge was told that as a result of a statement he made to police concerning the 11 April 2015 incident, the applicant had been the subject of threats and an assault, and that he was being held in protection.

   [3](2007) 16 VR 269 (‘Verdins’).

1. The sentencing judge was told of the applicant’s then pending drugs charge.   At the time of the plea hearing, that matter had been listed as a contest in early 2018.  As indicated, the applicant pleaded guilty to a charge of trafficking methylamphetamine on 2 October 2018.

1. During the plea hearing the judge and counsel for the applicant had several interchanges concerning the sawn-off shotgun found at the applicant’s home.  The judge described the weapon as ‘the most dangerous firearm that there is’, and the applicant’s counsel accepted that characterisation.[4]

   [4]Transcript of Proceedings (20 November 2017) 95.

The Reasons

1. The sentencing judge referred to the applicant’s prior convictions,[5] the circumstances of the offending,[6] and addressed in some detail the reports of Ms Lechner and Mr Jackson.[7]  He referred to the applicant’s personal history, and to the assault in April 2015.[8] 

   [5]Reasons [3]–[4].

   [6]Reasons [5]–[7].

   [7]Reasons [8], [17]–[21].

   [8]Reasons [9]–[13], [16].

1. In relation to the consequences whilst in custody of the applicant’s involvement in the April 2015 incident, the sentencing judge said:

Your statement to the police, Exhibit 4 on the plea, is vague and is limited to the assault on you. In other words, you made a victim’s witness statement. You could not be classified as an informer. Since being arrested and remanded in custody for the instant offences, you have been on protection. Apart from a period of one month whilst you were in the Metropolitan Assessment Prison and subject to 23 hour per day lockdown, there have been no real restrictions on you whilst incarcerated at Port Philip Prison and the Hopkins Correctional Centre whilst under protection. At the time of your consultation with Ms Lechner on 22 November 2016 you were working as a billet at Port Philip Prison.  However, I was informed that when you were transferred from the Metropolitan Assessment Prison to Port Philip Prison in August 2016 you were assaulted on the basis that you were ‘a dog’. Since that time you have had no further difficulties. Since March of this year you have been incarcerated at the Hopkins Correctional Centre and there too you are a billet.  You are confined to your cell between the hours of 7.30pm and 7.30am whilst at Hopkins.[9]

[9]Reasons [14].

1. In relation to Verdins, the judge rejected the submission that the applicant’s moral culpability ought to be reduced.  He said that there was no evidence of a nexus between the offending and any psychiatric or psychological illness from which the applicant might suffer.  The sentencing judge did take into account the fact that the applicant’s time in custody ‘will adversely affect’ his ability to be treated successfully in the future.[10]

   [10]Reasons [24], [27]–[28].

1. The sentencing judge concluded his remarks by saying:

Your offending, both by way of the indictable offences and related summary offences, is a serious example of offending of its kind on a continuing basis. I regard your prospects for rehabilitation as guarded, taking into account your antecedents and that any prospect for rehabilitation that you might have is entirely dependent upon you becoming and remaining drug-free.[11]

[11]Reasons [29].

Proposed grounds of appeal

1. The proposed ground of appeal on conviction is as follows:

The learned sentencing judge erred by convicting the applicant of the charges of:

(a)Exceed speed limited [sic] by less than 35 kph

(b)Possess unregistered handgun (related summary charge 7);

(c)Own general category handgun (related summary charge 26)

And by doing so, subjected the applicant to double punishment.

1. The proposed ground of appeal in relation to sentence is as follows:

When regard is had to the following circumstances:

·the applicant’s plea of guilty,

·the applicant’s limited criminal history,

·the applicant’s personal circumstances,

·the objective gravity of the offending, and

·the burden of imprisonment on the applicant

the individual sentences and the orders for cumulation are productive of a total effective sentence and the non-parole period that is manifestly excessive.

Application to appeal convictions — concessions and submissions

1. The proposed ground of appeal on conviction inaccurately identifies the relevant charges.  The summary charges, to which the applicant pleaded guilty, and in relation to which he seeks leave to appeal his convictions, are:

(a)               Summary charge 7 which, on the charge sheet as amended relevantly (correcting typographic errors) read as follows:

The accused at Broadmeadows on 31/03/2016, being the driver of a vehicle on a length of road, namely Western Ring Road, did drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving, to which a speed limit sign of … 100 kilometres per hour applied between Sydney Road and Tullamarine Freeway.  Detected speed 116 kph.  Alleged speed 114 kph.

(b)               Summary charge 24 which read:

The accused at Chelsea on 20-JUL-2016 did possess a general category of a handgun that is not registered (Chiappa Lever Action Shotgun).

(c)               Summary charge 26 which read:

The accused at Chelsea on 20-JUL-2016 did own a hand gun whilst not authorised by a licence under the Firearms Act 1996 to possess a firearm (Lever Action Chiappa Shotgun).

1. On the plea an amended summary of prosecution opening had been tendered.  The judge appended a copy of that document to the Reasons.[12]

   [12]Reasons [6].

1. In relation to summary charge 7 (speeding), the tendered opening asserted that this offence occurred on 1 April 2016 in the course of two police pursuits at Wangaratta, one commencing at approximately 4.30 am on 1 April 2016 and one commencing at about 4.30 pm on the same day.  Counsel for the respondent conceded before us that that conduct could not be the speeding that was the subject of summary charge 7, which was alleged to have occurred on 31 March 2016 at Broadmeadows.  The contention which had been put on behalf of the applicant in his written case in relation to this charge was that it was duplicitous with the charge of reckless conduct endangering life constituted by the applicant’s driving in or around Wangaratta on 1 April 2016.  Counsel for the respondent submitted that the appeal on that conviction should be allowed because the factual basis, agreed between the parties and adopted by the sentencing judge, could not found this conviction.  The conviction should be set aside notwithstanding the plea of guilty because on the admitted facts he could not in law have been convicted of the offence charged.

1. The sentence imposed on this summary offence was a fine of $250. 

1. In relation to summary charge 24 (possess unregistered handgun) at the hearing before us the applicant was given leave to add a new proposed ground to the application as follows:

A fundamental irregularity occurred in that the applicant was convicted of an indictable offence — namely possession of an unregistered handgun contrary to s 7B(1) of the Firearms Act 1996 (Vic) — that was:

(a)       not pleaded on indictment G11990445, and

(b)       in respect of which the applicant was not arraigned.

1. Counsel for the respondent conceded that an indictable offence had erroneously been charged as a summary offence and that in the circumstances the appeal against conviction had to be allowed, notwithstanding the guilty plea.

1. The sentence imposed on this offence was that the applicant be convicted and discharged.  

1. The concessions made by counsel for the respondent in relation to these two convictions were appropriately made.

1. As to summary charge 7 (speeding), leave must be granted and the appeal allowed because on the admitted facts the applicant could not have been convicted of the offence charged.[13]  As to summary charge 24 (possess unregistered handgun), leave must be granted and the appeal allowed because the conviction was irregular and must be set aside.[14]  Once the convictions are set aside, the Court’s options are limited.[15]  Both counsel submitted that, in the particular circumstances here, the appropriate course was to enter judgment of acquittal.

   [13]R v Forde [1923] 2 KB 400, 403; R v Murphy [1965] VR 187, 188, 190.

   [14]Nguyen v The Queen (2012) 226 A Crim R 405, 409 [14]–[15], and Beasley v The Queen [2017] VSCA 154 [3].

   [15]Section 277 of the Criminal Procedure Act 2009 sets out the relevant options.  In Nguyen and Beasley (above) an order was made remitting the relevant charges with the applicant’s consent.  Neither party sought that here, and the applicant did not consent.

1. In relation to those two convictions we will grant leave to appeal, allow the appeal, set aside the convictions and sentences imposed, and enter judgments of acquittal. 

1. On the application for leave to appeal against conviction, that leaves only the conviction on summary charge 26 (own general category handgun without a licence). 

1. On behalf of the applicant it was submitted that he had been charged with offences of being a prohibited person in possession of a firearm (indictment charge 6), handling stolen goods (summary charge 7), possessing an unregistered handgun (summary charge 24), and owning a general category handgun without a licence (summary charge 26), in circumstances where all of these charges related to a single firearm found at the applicant’s house when the warrant was executed.  The applicant relied upon the High Court decision in Pearce v The Queen.[16] The applicant submitted that the judge had been conscious of the overlap in relation to the firearms offences and had attempted to reflect that in the sentences which he imposed.  On the offence now in issue (summary charge 26), the applicant was convicted and discharged.  Relying on a passage from the judgment of Hayne JA in R v Sessions,[17] the applicant submitted that that approach did not adequately address the issue as the conviction itself was part of the punishment.

   [16](1988) 194 CLR 610 (‘Pearce’).

   [17][1998] 2 VR 304, 313 (‘Sessions’).

1. Counsel for the respondent submitted that each firearms offence contained a different element and that while ‘reasonable minds may differ as to the need to prosecute each available offence’, the charges were not bad for duplicity.  Summary charge 26 was, it was submitted, an offence against the licensing regime and thus contained an element of criminality different to the other firearms offences. 

Analysis — leave to appeal conviction

1. The High Court in Pearce addressed two separate issues in relation to charges which ‘overlapped’.

1. The first issue was whether the prosecution might have infringed principles concerning ‘double jeopardy’, either on the basis of plea in bar or abuse of process.  The High Court held that a stay application or appeal against conviction would only succeed on the basis of those principles where the elements of the two offences charged were identical or where all of the elements of one offence were wholly included in the other.[18]  That was not the position in Pearce, and it is not the position here.  The elements of the offence of possessing a firearm whilst a prohibited person are not the same as the elements of the offence of owning a general category handgun without a licence.  Nor are the elements of one wholly included in the other.  That is not the end of the matter, however.

   [18]Pearce (1998) 194 CLR 610, 618 [24], 629 [69].

1. The second issue addressed in Pearce was double punishment.  As to that issue the majority said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[19]

[19]Pearce (1998) 194 CLR 610, 623 [40].

1. In R v Langdon,[20] this Court held that in a particular case the overlap might be so extensive that there is ‘nothing left’ in one of the offences ‘to be the subject of any punishment’, in which circumstances the conviction itself ought to be quashed.

   [20](2004) 11 VR 18, 39 [17] (‘Langdon’).

1. In Sessions, Hayne JA had observed that the Sentencing Act 1991 made it plain that a conviction was part of the punishment meted out to an offender.[21]

   [21]Sessions [1998] 2 VR 304, 313.

1. Here, there is clearly overlap between charge 6 on the indictment (possess firearm whilst prohibited) and summary offence charge 26 (own general category handgun without a licence).  In each case the firearm is the same, being the firearm discovered upon the search of the applicant’s home.  There is considerable overlap in the conduct constituting the two offences.  As the applicant conceded, the sentencing judge has clearly endeavored to address the overlap, imposing an 18 month term of imprisonment on the more serious indictable offence, and convicting and discharging the applicant on the less serious summary offence.

1. Although not expressly put this way, the applicant’s position must be that there was ‘nothing left’ to be punished on the summary offence after the imposition of the sentence on the indictable offence, and, accordingly, that the conviction ought to be quashed, as was done in Langdon.  Conviction and discharge still involves punishment, as Sessions makes clear.

1. In our opinion there was criminality involved in the applicant’s possession of the firearm both because he was a prohibited person and because he was unlicensed.  This is not a case where there was nothing left to be punished.  The judge has approached the matter in the way Pearce requires because clearly he treated the residual criminality involved in the summary offence as minor, but, in our view, he was correct not to treat it as amounting to nothing.

1. On the application for leave to appeal against conviction we will grant leave to appeal on each of the proposed grounds (being the original ground in the application and the ground added by leave during the hearing), allow the appeal in relation to summary charges 7 and 24, set aside the convictions and sentences imposed on those charges and in lieu thereof enter judgments of acquittal, and otherwise dismiss the appeal on conviction.

Application in relation to sentence — submissions

1. In relation to sentence it was submitted on behalf of the applicant that the total effective sentence and the non-parole period were manifestly excessive, given the applicant’s plea of guilty, and what was submitted to be his ‘limited’ prior convictions.  Reliance was placed upon the reports of Ms Lechner and Mr Jackson.

1. It was submitted that the objective gravity of the applicant’s offending did not warrant the total effective sentence imposed, specific comparison being made with the sentences imposed in DPP v Graoroski[22] and Haddara v The Queen,[23] cases which were said to have concerned more serious offending than here.

   [22][2018] VSCA 332 (‘Graoroski’).

   [23][2015] VSCA 158 (‘Haddara’).

1. In the course of submissions counsel for the applicant contended that the 18 month sentence of imprisonment imposed on the charge of being a prohibited person in possession of a firearm was outside the range of sentences reasonably open to the sentencing judge, and also contended that there should have been some concurrency on the aggregate sentence as those offences were ‘clearly bound up’ in the other offending. 

1. The respondent submitted that the total effective sentence and the non-parole period were not manifestly excessive.  It was submitted that the sentencing judge had taken into account the applicant’s guilty pleas which he had characterised as ‘early’.  The respondent contested the submission that the applicant’s prior convictions were ‘limited’, referring to the fact that between July 2004 and August 2015 he had 23 convictions or findings of guilt relating to dishonesty, violence, motor vehicle and bail offences.

1. In relation to the offending conduct the respondent submitted that the applicant had been ‘plainly lawless’, and that specific deterrence and community protection had to have ‘loomed very large’ in the sentencing process. 

1. In relation to the applicant’s personal circumstances and the burden of imprisonment it was submitted that the sentencing judge had properly assessed those matters and taken them into account. 

1. As to the cases relied upon by the applicant, the respondent referred to R v Kilic[24] and submitted that a ground of manifest excess could not be made out by simply comparing the applicant’s case with sentences imposed on other offenders in what were asserted to be more serious circumstances.  The respondent submitted that, in any event, Graoroski and Haddara did not concern comparable circumstances.  Reference was made to Sovolos v The Queen,[25] Kiril (a pseudonym) v The Queen,[26] and Martinez v The Queen.[27]

   [24](2016) 259 CLR 256 (‘Kilic’).

   [25][2018] VSCA 149 (‘Sovolos’).

   [26][2019] VSCA 133 (‘Kiril’).

   [27][2019] VSCA 135 (‘Martinez’).

1. The respondent submitted that the applicant’s particular conduct in the course of the police pursuits was offending which called for ‘stern punishment’.

Analysis — leave to appeal sentence

1. The sentences imposed on the convictions which we have concluded should be set aside were respectively a fine of $250 (summary charge 7) and conviction and discharge (summary charge 24).  The proposed ground of appeal on sentence is that sentences have been imposed, and orders for cumulation made, which are ‘productive’ of a total effective sentence and non-parole period that are manifestly excessive.  Counsel for both the applicant and the respondent submitted that the outcome on the conviction appeal in this particular case does not re-open the sentencing discretion generally.  That submission, made by both counsel, was well founded.

1. In Phan v The Queen, Nettle JA (with whom Whelan AJA agreed) said that a successful appeal on the sentence on one charge would not necessarily re-open the sentencing discretion in relation to other charges.[28]  In Smith v The Queen, Weinberg JA (with whom Ashley and Tate JJA agreed) adopted that analysis and held that a particular sentence set aside in that case, which had been wholly concurrent with other sentences, did not result in the sentencing discretion as a whole being re-opened.[29]  Ashley JA expressed the view that other sentences would not be opened up for consideration unless the sentence set aside was the base sentence or was the subject of an order for total or partial cumulation.[30]  This Court has subsequently adopted that approach.[31]

   [28][2011] VSCA 254 [5]–[6].

   [29][2012] VSCA 5 [47]–[48] (‘Smith’).

   [30]Ibid [1].

   [31]See D H C v The Queen [2012] VSCA 52 [69]; Young v The Queen [2015] VSCA 265 [82]; Cox v The Queen [2016] VSCA 124 [32]; Lim v The Queen [2019] VSCA 182 [25]. The approach in Lim may conflict with Ashley JA’s analysis in Smith, but it is unnecessary for us to address that issue.

1. The proposed ground of appeal concerns the total effective sentence and the non-parole period, although submissions were made in relation to the sentences imposed on the offences of reckless driving and the offence of possessing a firearm whilst prohibited and in relation to the absence of concurrency on the aggregate sentence.  The total effective sentence was 5 years 6 months’ imprisonment and the non-parole period fixed was 4 years.  The sentences on the convictions set aside do not affect the total effective sentence or the non-parole period.  Applying Smith, this Court will only interfere to reduce the total effective sentence or the non-parole period if manifest excess is established.  Manifest excess will not be established unless the total effective sentence and/or the non-parole period were wholly outside the range of sentences open to the sentencing judge.

1. Between April 2016 and July 2016 the applicant committed an extraordinary spate of driving offences, involving high speed police pursuits, and driving which endangered the lives of other road users.  The applicant’s offending conduct on public roads was of the utmost seriousness.  The charges to which he pleaded guilty reflect the extraordinary danger which he created.

1. Much of the offending was undertaken in stolen vehicles.  In one of the vehicles shotgun shells were discovered on the floor after the applicant had abandoned the vehicle.  When his home was searched a sawn-off lever action shotgun and more shotgun shells were located.

1. All of this offending occurred whilst the applicant was on bail and during the operative period of a suspended sentence.  The suspended sentence had been imposed after he had contravened a community correction order.

1. It does seem that the applicant’s offending escalated after the incident in April 2015, and the reports of Ms Lechner and Mr Jackson addressed that matter in great detail.  But it is not the case that the applicant’s offending began after April 2015.  He had many convictions before then and had served a term of imprisonment.  We do not accept the applicant’s counsel’s characterisation of his prior convictions as ‘limited’.

1. The respondent’s submission to the effect that the applicant had embarked upon a ‘lawless’ pattern of conduct which rendered specific deterrence and community protection as very significant factors in sentencing is well founded, as is the sentencing judge’s assessment of the applicant’s prospects of rehabilitation as ‘guarded’.

1. In relation to the dangerous driving while evading police, we adopt Priest JA’s observations in Butler v The Queen (with which T Forrest JA agreed), where he said ‘… general deterrence is of prime importance in a case such as this.  People tempted to drive recklessly and endanger the public in order to evade police must know that when caught they will receive stern punishment.’[32]

   [32][2019] VSCA 132 [42] (‘Butler’).

1. The applicant was able to call in aid matters in mitigation, principally his early pleas of guilty, and the matters addressed in the reports of Ms Lechner and Mr Jackson.

1. Notwithstanding the matters in mitigation, in our opinion the total effective sentence and the non-parole period imposed in this case were well within the range of sentences open to the sentencing judge.  We do not consider the total effective sentence or the non-parole period to be arguably outside the range, and we will accordingly refuse leave to appeal.

1. We have considered the specific sentences in other cases referred to in the course of argument, mindful of the fact that current sentencing practices is a factor which must be taken into account, but only one factor, and that it is erroneous to approach an analysis of a sentence by treating what are said to be comparable sentences as fixing quantitative boundaries.[33]  The circumstances in Graoroski (with the exception of the offence in that case of being a prohibited person in possession of a firearm), Haddara, Sovolos, Kiril and Martinez are so different to the circumstances here as to be of no real assistance.  The sentence imposed concerning somewhat similar reckless driving in Butler (14 months with 6 months cumulated) was lower than each of the sentences imposed for those offences on the applicant (15 months with 5 months cumulated, and 20 months with 6 months cumulated), but not substantially lower, and this Court characterised the sentence imposed in Butler for this offence as ‘extremely lenient, if not inadequate’.[34] 

   [33]DPP vDalgleish (A Pseudonym) (2017) 262 CLR 428, 450 [68], 453 [81], Kilic (2016) 259 CLR 256, 267–8 [22]–[24].

   [34]Butler [2019] VSCA 132 [41].

1. We do not consider that the sentence on the charge of possessing a firearm whilst a prohibited person (18 months’ imprisonment) was outside the range given the nature of the firearm, and the maximum penalty (10 years’ imprisonment).  We note it is the same sentence as was imposed in Graoroski, a decision upon which the applicant relies.

1. The aggregate sentence was not complained of in itself, but a submission was made that some part of it should have been concurrent.  We do not consider that the judge was bound to proceed in that way, and the proposed ground of appeal only concerns the total effective sentence and the non-parole period, neither of which is, in our opinion, arguably manifestly excessive.

Conclusion

1. On the application for leave to appeal conviction leave to appeal will be granted, the appeal will be allowed, the conviction and sentences on summary charges 7 and 24 will be set aside and in lieu thereof judgments of acquittal will be entered, and the appeal will otherwise be dismissed.

1. On the application for leave to appeal sentence, leave will be refused. 

1. These orders mean there is no change to the terms of imprisonment imposed below and that the total fine is reduced from $1,000 to $750.

CROUCHER AJA:

1. I have had the advantage of reading in draft the joint reasons for judgment of Whelan and Kyrou JJA.

Conviction Application

1. I agree, for the reasons their Honours give, with the proposed orders concerning the application for leave to appeal against conviction.

1. I wish to add this.  Mr McWilliams, who appeared for the Director in this Court, quite properly conceded that, in the sound exercise of prosecutorial discretion, many a prosecutor would not have bothered to proceed with the charge for the summary licensing offence when the charge of prohibited person in possession of the same firearm was already on the indictment.

1. He was also right, however, in the particular circumstances of this case, to defend both the propriety of the decision to persist with the licensing charge and the subsequent sentencing order made by the judge on the basis that there was some additional criminality, albeit slight, in that particular offence beyond that which was covered by the prohibited person offence that was properly capable of punishment by way of conviction and discharge.

1. That said, prosecutors (and informants) should exercise great care in deciding whether to prosecute additional offences of this type when plainly one will do.  Consistently with Mr McWilliams’s sensible concession, in all the circumstances, it was unnecessary to lay the additional charge in the present case.  Laying, or persisting with, additional charges of this type serves only to complicate the sentencing court’s task unnecessarily, to waste judicial and related resources on (legitimate) arguments on appeal that simply need not have been had, and to risk giving a false impression of an offender’s criminal record by suggesting that more instances of illegal behaviour than just the one occurred.  There is also the risk that, in future, having two previous convictions where one will do might give rise to other adverse but unjustified consequences for the offender, whether they relate to sentencing on subsequent offences or to the prospects of overseas travel or employment opportunities or the like.  None of those consequences is conducive to the sensible and orderly administration of the criminal justice system or the interests of justice.

Sentence Application

1. I also agree, for the reasons given by Whelan and Kyrou JJA, that the application for leave to appeal against sentence must fail vis-à-vis the individual sentences, the directions for cumulation and the total effective sentence.  While the total effective sentence might have been structured differently, in my opinion, it was not manifestly excessive.  In fact, I think it was dead right.

1. After much consideration, however, I have reached a different view with respect to the orders concerning non-parole period, albeit with the same ultimate result.  The difference is that I would grant leave to appeal on the complaint of manifest excess concerning the non-parole period but ultimately would dismiss that aspect of the appeal too.  My reasons follow.

1. While all matters – both mitigating and aggravating – tend to affect all aspects of the individual sentences, the directions for cumulation, the resulting total effective sentence and the non-parole period, some matters may have a particular or especial impact on the non-parole period.

1. In this case, those matters included the applicant’s pleas of guilty, which suggest some prospects of rehabilitation, and the PTSD he suffers as a result of being witness to and therefore an indirect victim of a shooting.  There is also the related hardship he has endured, and is likely to continue to endure, at least while in custody and perhaps beyond, because he made a statement to police about the shooting.  Further, it seems clear that the applicant’s offending escalated after that traumatic event.

1. In view of those particular factors, it struck me as at least reasonably arguable that the non-parole period (of four years) is manifestly excessive both in absolute terms and (at 72 per cent) as a proportion of the total effective sentence (of five-and-a-half years’ imprisonment).

1. In reaching this conclusion, I recognise the importance, in this particular case, of sentencing purposes such as general deterrence, specific deterrence, denunciation, just punishment and protection of the community as potentially justifying the non-parole period fixed by the judge.  The foregoing is particularly so given the overall gravity of the offending, the applicant’s criminal history and the fact that his new offending was repetitive and was committed while on bail and in breach of other sentencing orders.

1. However, while the judge was right to be guarded about the applicant’s prospects of rehabilitation, it must be recognised that he will be released into the community sooner or later.  As I have said, I think his pleas of guilty are also an indicator of at least some prospects of rehabilitation.  He was also coming to a stage of life (his 30s) where experience shows that many with poor criminal histories start to realise the error of their ways and make more serious attempts to rid themselves of the scourge of heavy use of illicit drugs and the pitiable existence that tends to come with it.

1. In my respectful opinion, it is reasonably arguable that parsimony and rehabilitation demanded that a shorter non-parole period be fixed to ensure that the applicant is not crushed by his time in custody, which had been and would continue to be a harsher experience than usual, and instead give him the strong incentive to work towards the earliest possible release on parole, while also allowing him the potential, if granted parole at an early stage, for a substantial period of supervision in the community so as to assist in his reintegration and ultimate rehabilitation.  In these ways, a much shorter non-parole period might be more likely to redound to the benefit of the community and the applicant via his rehabilitation in the longer term.

1. It is for these reasons that I would grant leave to appeal on the complaint that the non-parole period was manifestly excessive.

1. That said, the ultimate question is whether the appeal should be allowed.  As my reasons thus far might suggest, I would have fixed a shorter non-parole period.  But that is not the test on appeal.  Instead, the question is whether the non-parole period was manifestly excessive or, put another way, was open to the judge in all the circumstances.  While it is a close-run thing, I am not satisfied that the non-parole period is manifestly excessive.  It was open to the judge to weigh the various sentencing purposes in a way that justified a non-parole period of four years on the total effective sentence of imprisonment for five-and-a-half years.

1. Accordingly, while I would grant leave to appeal against the severity of the non-parole period, I would dismiss the appeal.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Handle stolen goods [Crimes Act 1958 (Vic) s 88(2)]	15 years	18 months	Base
2	Reckless conduct endangering life [Crimes Act 1958 (Vic) s 22]	10 years	15 months	5 months
3	Handle stolen goods [Crimes Act 1958 (Vic) s 88(2)]	15 years	18 months	4 months
4	Reckless conduct endangering life [Crimes Act 1958 (Vic) s 22]	10 years	20 months	6 months
5	Handle stolen goods [Crimes Act 1958 (Vic) s 88(2)]	15 years	18 months	4 months
6	Possess firearm whilst prohibited [Firearms Act 1996 (Vic) s 5(1)]	10 years	18 months	6 months
7	Handle stolen goods [Crimes Act 1958 (Vic) s 88(2)]	15 years	18 months	Nil
8	Handle stolen goods [Crimes Act 1958 (Vic) s 88(2)]	15 years	18 months	4 months
Related Summary Charges	Offence	Maximum	Sentence	Cumulation
3	Fail to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	1st offence: 60 penalty units or 6 months’ imprisonment, or both Subsequent offences: 120 penalty units or 12 months’ imprisonment, or both	15 months’ imprisonment (aggregate sentence)	15 months
5	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
7	Exceed speed limit (by less than 30 km/h for drivers of a vehicle other than a heavy vehicle) [Road Safety Rules 2009 (Vic) R 20]	10  penalty units Where speed alleged is less than 25 km/h of limit: S 28(1)(b) Road Safety Act 1986 (Vic) is enlivened and licence intervention is discretionary	Fine of $250
8	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3

Related Summary Charges	Offence	Maximum	Sentence	Cumulation
14	Fail to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	1st offence: 60 penalty units or 6 months’ imprisonment, or both Subsequent offences: 120 penalty units or 12 months’ imprisonment, or both	See ch 3
15	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
16	Fail to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	1st offence: 60 penalty units or 6 months’ imprisonment, or both Subsequent offences: 120 penalty units or 12 months’ imprisonment, or both	See ch 3
18	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
20	Possess cartridge ammunition without licence or permit [Firearms Act 1996 (Vic) s 124(1)]	40 penalty units	Fine of $250
21	Commit indictable offence whilst on bail [Bail Act 1977 s 30 B]	30 penalty units or 3 months’ imprisonment	1 months	Nil
22	Shorten barrel of a longarm [Firearms Act 1996 (Vic) s 134(1)]	240 penalty units or 4 years’ imprisonment	6 months	1 month
24	Possess unregistered handgun [Firearms Act 1996 (Vic) s 7B(1)]	1st offence: 600 penalty units or 7 years’ imprisonment Subsequent offence: 1200 penalty units or 10 years’ imprisonment	Convicted and discharged
26	Own general category handgun without licence [Firearms Act 1996 (Vic) s 135(2)]	120 penalty units or 2 years’ imprisonment	Convicted and discharged
28	Unlicensed person store firearm in an insecure manner [Firearms Act 1996 (Vic) s 129A]	240 penalty units or 4 years’ imprisonment	1 month	1 month
Related Summary Charges	Offence	Maximum	Sentence	Cumulation
30	Unlicensed person store ammunition in an insecure manner [Firearms Act 1996 (Vic) s 129A]	240 penalty units or 4 years’ imprisonment	1 month	1 month
32	Possess cartridge ammunition without licence or permit [Firearms Act 1996 (Vic) s 124(1)]	40 penalty units	Convicted and discharged
65	Fail to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	1st offence: 60 penalty units or 6 months’ imprisonment, or both Subsequent offences: 120 penalty units or 12 months’ imprisonment, or both	See ch 3
66	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
69	Possess controlled weapon [Control of Weapons Act 1990 (Vic) s 6]	120 penalty units or 1 year imprisonment	3 months	1 month
75	Exceed speed limit (by less than 35 km/h for drivers of a vehicle other than a heavy vehicle) [Road Safety Rules 2009 (Vic) R 20]	10 penalty units	Fine of $250
79	Fail to stop vehicle on police request [Road Safety Act 1986 (Vic) s 64A]	1st offence: 60 penalty units or 6 months’ imprisonment, or both Subsequent offences: 120 penalty units or 12 months’ imprisonment, or both	See ch 3
80	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
83	Display number plates not assigned to vehicle [Road Safety (Vehicle) Regulations s 50(1)]	2 penalty units	Fine of $250
84	Deal with property suspected of being proceeds of crime (Crimes Act 1958 (Vic) s 195)	240 penalty units or 2 years’ imprisonment	1 month	Nil
86	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
Related Summary Charges	Offence	Maximum	Sentence	Cumulation
88	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
89	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
91	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
92	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
94	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
96	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
98	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
100	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
102	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
106	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
108	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
110	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
112	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3
113	Dangerous Driving (speed) [Road Safety Act 1986 (Vic) s 64(1)]	240 penalty units or 2 years’ imprisonment, or both	See ch 3
115	Unlicensed driving [Road Safety Act 1986 (Vic) s 18(1)(a)]	25 penalty units or 3 months’ imprisonment	See ch 3

Total Effective Sentence:

5 years and 6 months’ imprisonment

Non-Parole Period:

4 years’ imprisonment

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

517 days

6AAA Statement:

But for the plea of guilty, a total effective sentence of 7 years and 6 months’ imprisonment with a non-parole period of 5 years would have been imposed.

Other relevant orders:

·     All Victoria licences cancelled and disqualified from any such licence or permit for 4 years from 19 December 2017.

· Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958.

·     Forfeiture order.

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