Levy v The Queen
[2020] VSCA 44
•11 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0219
| CRAIG JONATHON LEVY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 February 2020 |
| DATE OF JUDGMENT: | 11 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 44 |
| JUDGMENT APPEALED FROM: | [2018] VSC 567 (Tinney J) |
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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Plea of guilty – Victim died from injuries sustained in course of assault by applicant and two co-offenders related to overdue rent – Applicant cooperated with authorities and gave undertaking to give evidence against main offender – Sentenced to seven years and six months’ imprisonment with non-parole period four years and six months – Main offender sentenced to 11 years’ imprisonment – Whether principle of parity infringed – Leave to appeal granted – Appeal allowed – Resentenced to five years and six months’ imprisonment with non-parole period three years and six months – R v Johnston (2008) 186 A Crim R 345 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Carr | Pica Criminal Lawyers |
| For the Respondent | Mr B Kissane QC with Ms K Crennan | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Hargrave JA, whose reasons for judgment I have had the advantage of reading in draft.
HARGRAVE JA:
On 25 October 2017, three men were involved in a vicious assault on Ramis Jonuzi. Mr Jonuzi died as a result of injuries inflicted on him during the attack. Mr Jonuzi was 36 years old when he died. Ultimately, all three men pleaded guilty to his manslaughter.
The applicant, Craig Levy, pleaded guilty in the trial division to one charge of manslaughter. He was convicted and sentenced as set out below:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1. Manslaughter [s 5 of the Crimes Act 1958] 20 years [s 5 of
the Crimes Act 1958]
7 years and 6 months N/A Total Effective Sentence: 7 years and 6 months’ imprisonment Non-Parole Period: 4 years and 6 months’ imprisonment 6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years and 6 months
One of Levy’s co-offenders, Ryan Smart, also pleaded guilty to manslaughter and was sentenced in the trial division on the same day as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1. Manslaughter [s 5 of the Crimes Act 1958] 20 years [s 5 of the Crimes Act
1958]
9 years N/A Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 6 years’ imprisonment 6AAA Statement: 11 years’ imprisonment with a non-parole period of 7 years and 6 months
The third co-offender, Jason Colton, who initiated the assault on Mr Jonuzi and carried out most of the violence, pleaded not guilty to a murder charge. After a successful no case submission at the conclusion of the prosecution case, Colton pleaded guilty to manslaughter. He was then sentenced in the following manner.
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1. Manslaughter [s 5 of the Crimes Act 1958] 20 years [s 5 of
the Crimes Act 1958]
11 years N/A Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 8 years 6AAA Statement: 13 years’ imprisonment with a non-parole period of 10 years
In summary, the three co-offenders were sentenced as follows:
(1) Levy — 7 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months.
(2) Smart — 9 years’ imprisonment with a non-parole period of 6 years.
(3) Colton — 11 years’ imprisonment with a non-parole period of 8 years.
Levy seeks leave to appeal on three grounds:
(1) Ground 1 — The learned sentencing Judge erred in finding that ‘it was [the applicant’s] desire to be paid what was owing which was at the heart of the offending’.
(2) Ground 2 — The learned sentencing Judge erred in finding that the applicant ‘had ample opportunity to desist from [his] involvement in the crime and try to bring it to an end’ but ‘did not do so’.
(3) Ground 3 — The learned sentencing Judge erred in his application of the principle of parity.
Before considering the three grounds, it is necessary to set out the circumstances of the offending by the three co-offenders. The following account of events is taken from the sentencing judge’s reasons,[1] and from a written statement given by Levy which the Crown accepts is an accurate account of relevant events.
[1]R v Levy [2018] VSC 567 (‘Sentencing Reasons’).
Circumstances leading up to the crime
Levy and Smart had rented a property in Brighton East since 2011. Levy and Smart apparently agreed that Levy would be in charge of collecting the proportions of rent payable by Smart and any other occupiers, and then pay the landlord. On the day of Mr Jonuzi’s death, rent was in arrears by $604. The landlord had served a notice to quit on Levy and Smart due to unpaid rent and ongoing breaches of the rental agreement.
Colton had resided at the property for some months leading up to the offending on 25 October 2017. He lived in the garage at the property under some kind of licence or sub-tenancy from Levy and Smart.
Levy and Smart occupied separate bedrooms in the house. A third bedroom inside the house was placed by Levy on ‘Airbnb’. In October 2017, Mr Jonuzi moved out of his parents’ home, where he had been residing following a relationship breakdown, and commenced employment at a restaurant. On 11 October 2017 he confided in a friend that he was not going very well, was sleeping in his car, and needed to find accommodation. The friend helped him to find a place to stay through Airbnb. A booking was made for Mr Jonuzi to stay at 14 Alexander Street, Brighton East for the period 15 to 17 October 2017 for a total cost of $102. On 15 October 2017, Mr Jonuzi moved into the spare bedroom in the house. He had paid for three days’ accommodation in advance.
After the three days of the Airbnb booking had passed, Mr Jonuzi arranged with Levy to stay at the house for another week. He told Levy that he would pay for the accommodation when his salary came in. Levy agreed to that arrangement, at a rate of $210 for the week to be paid in advance.
In the ensuing week, Mr Jonuzi was unable to pay the agreed rent, despite repeated requests from Levy. This concerned Levy, Smart and Colton — because the $210 was needed to pay outstanding rent to the landlord, and thus avoid eviction under the notice to quit.
On Tuesday 24 October 2017, while Levy was at work, he and Colton had a telephone conversation. Colton expressed concern that Mr Jonuzi was going to ‘do a runner’ without paying the rent and that he may steal property from Levy. This caused Levy to contact Smart, who confirmed Mr Jonuzi’s room was still full of his belongings. There was no evidence which would have justified Colton’s concern about Mr Jonuzi doing ‘a runner’.
Events on 25 October 2017
At about 5:00 pm on Wednesday 25 October 2017, Levy found out that Mr Jonuzi had only $6 in his bank account. Levy requested that he vacate the property. Mr Jonuzi agreed and, after some prompting, started packing his possessions.
At 5:15 pm, Levy and Colton left the premises to purchase some cannabis. They returned at 5:45 pm. Colton went on foot to a bar in Bay Street, Brighton. Levy smoked cannabis while watching television for the next two hours, occasionally repeating his requests to Mr Jonuzi to pack up his room, vacate the premises and pay the rent which was due.
At 7:05 pm, Levy received a text message from Colton regarding the outstanding rent. It read: ‘All sorted?’ Levy replied to Colton: ‘He’s getting somewhere…But stalling.’
By 7:38 pm, Colton was back in the garage of the premises, having returned from the bar. Smart returned to the premises at 7:45 pm from a trip to get some groceries. He went to his room and played video games.
Eventually, Mr Jonuzi finished packing his belongings into his utility vehicle and asked Levy to check the state of his room. Levy found the room to have been nicely cleaned up and vacuumed, but noticed Mr Jonuzi had not left his house keys. Levy and Mr Jonuzi searched for the keys for a time before Mr Jonuzi divulged the fact that he had been arrested earlier by the police and the keys were in the possession of the police.
During the search for the keys, Mr Jonuzi offered to telephone his boss to find out when he would be paid. Levy offered him the use of his mobile phone and went inside, expecting Mr Jonuzi would follow. Instead, Mr Jonuzi remained sitting in his vehicle for some time, before returning inside with a bottle of wine shortly after 8:00 pm. He poured himself a glass of wine and offered Levy one, which Levy declined. Levy was frustrated at his return inside, but said nothing and continued to smoke cannabis. Mr Jonuzi sat next to Levy on the couch in the lounge room. Colton then came into the house and stood in the lounge room. At this time, Smart was in his bedroom.
Colton asked Levy if Mr Jonuzi had paid the rent. Levy told him he had not. Colton then confronted Mr Jonuzi aggressively, screaming and swearing at him. He then lunged at Mr Jonuzi and grabbed him by his collar and threw him up against the wall of the lounge room. He then began to choke Mr Jonuzi by placing his forearm against his neck. He told Mr Jonuzi that he had to find the money to pay Levy.
Colton then spun Mr Jonuzi back around to the couch as his victim tried to wriggle out of his hold. He almost got away, and that was when Levy became involved. Levy assisted Colton in his attack by helping him to restrain Mr Jonuzi while Colton still had in a choke hold. At about the same time as this, Smart ran into the lounge room and became involved in the attack. Levy continued to hold on to Mr Jonuzi while Colton punched him ‘really hard with a clenched fist’ to the side of his face a number of times.
Levy was not sure whether Smart punched Mr Jonuzi or not.
During the course of the attack, furniture was disturbed and Mr Jonuzi’s blood was distributed in a number of locations. Levy described the scene as a chaotic and frantic one. During the attack, Mr Jonuzi repeatedly asked to be left alone, and Colton kept berating Mr Jonuzi about the unpaid rent.
Mr Jonuzi lost consciousness from the blows inflicted upon him. Levy then said to the others that they should all take Mr Jonuzi outside. Levy and Smart then carried the unconscious Mr Jonuzi outside into the front yard while Colton watched on. Levy deposited him on the front lawn. Colton then came up and dragged Mr Jonuzi around a tree and towards the street.
Smart then applied a ‘figure four leg lock’ to Mr Jonuzi to hold him down. Mr Jonuzi by this time was wriggling, screaming and crying, asking to be left alone. Colton punched and kicked him a number of times to the face.
At one point during the continuing assault, Levy came down hard and dropped his left elbow onto the chest of Mr Jonuzi while he was lying on his back. In his statement, Levy attributed an injury he sustained to his ribs during the event to this action.
Colton then rolled Mr Jonuzi over onto his front and placed his knee onto his back and his arm around his throat. Mr Jonuzi was struggling to talk by this time, his voice being quite raspy as he screamed out: ‘Let me go!’
While Mr Jonuzi pleaded to be released, Colton and Smart demanded the money that was owed. Mr Jonuzi said he would get the money. Colton asked how he was going to get the money. Mr Jonuzi asked to use Levy’s phone to check his bank balance. Levy then placed his phone in front of Mr Jonuzi. At 8:13 pm, Colton loosened his hold around Mr Jonuzi’s neck, and Mr Jonuzi used Levy’s phone to check the balance of his account. There was still only $6 in the account. Mr Jonuzi, who was crying, apologised and said he did not have any money. He tried to wriggle away.
Colton then went over to Mr Jonuzi’s utility vehicle and returned shortly afterwards with a large shifting spanner in his hand, obtained from the tray of the utility. He handed the spanner to Levy and told Levy to hit Mr Jonuzi in the head with it. By this time, Levy could see silhouettes of people in the street. He realised they were being watched. Levy came to his senses, went inside and made a call to the police at 8:20 pm. At the time Levy left the front yard and went inside, Mr Jonuzi was conscious, crying and talking.
Inside, Levy dropped the spanner on the couch.
Outside on the front lawn, Smart maintained the leg lock on Mr Jonuzi after Levy had left. Colton then inserted a brown calligraphy case, which he had taken from Mr Jonuzi’s vehicle, into Mr Jonuzi’s anus.
In Levy’s conversation with the policeman to whom he spoke on the telephone, he falsely claimed that he was restraining a male who was possibly alcohol and/or drug affected and had been violent towards them.
Knowing the police were on the way, Levy tidied up the lounge room, picking up a bong and some other items which he took outside and placed in his car. On the way to his car, Levy saw Smart still had Mr Jonuzi in a leg lock, and Colton was still close at hand near his head. Levy then drove his car around the corner and then ran back to the house. By this time, the police were close by.
Colton went into his garage and removed his bloody hooded top. He then returned outside.
At 8:30 pm, police arrived at the scene. They observed the three men moving away from Mr Jonuzi, who was lying motionless on the ground. Colton was observed moving away from Mr Jonuzi’s head area, Levy was seen moving away from Mr Jonuzi’s right side, and Smart was seen moving away from Mr Jonuzi’s feet.
Mr Jonuzi was lying face down on the grass and was non-responsive. He had one leg out of his pants and his buttocks exposed. The brown calligraphy case was protruding from his exposed anus.
Police immediately requested an ambulance and commenced CPR upon Mr Jonuzi, who was unconscious and not breathing and had apparent impact injuries to his face and head. The three men were placed under arrest.
At 8:38 pm, ambulance officers arrived and commenced their own efforts to save Mr Jonuzi, who showed no signs of life. He was declared to be deceased at 9:13 pm.
Police interviews
First interview
Levy was initially interviewed by the police commencing at 9:52 pm on 25 October 2017. At the time of this interview he had not been informed of the death of Mr Jonuzi. However, knowing of the serious assault on Mr Jonuzi, Levy initially lied about it to the police.
In the initial interview, Levy told the police that he had asked Mr Jonuzi to leave as he hadn’t paid his rent and that, in response:
Then [Mr Jonuzi] came to attack me and my housemates jumped in and stopped him…so he’s gone to attack me and we’ve — have attacked him back, they’ve gone to protect to (sic) me and I — we’ve all attacked him. He started bleeding so we took him out the front, and I’ve come inside to call the police.[2]
[2]Sentencing Reasons [36].
Second interview and Levy’s written statement
Levy’s second interview with the police commenced at 4:30 pm on the next day, 26 October 2017. By this time, Levy knew that Mr Jonuzi had died, and knew he was being interviewed in respect of his murder.
At an early time in this second interview, Levy admitted that he had lied in the first interview. He then gave an account that was in most respects consistent with the account which was later to appear in his written statement. The sentencing judge accepted that Levy’s written statement was an ‘overall truthful account’,[3] which made ‘admissions implicating yourself and your two co-offenders’.[4]
[3]Sentencing Reasons [39].
[4]Sentencing Reasons [40].
In the lead-up to the committal hearing, which commenced on 22 May 2018, there were discussions between Levy’s legal representatives and the prosecution aimed at resolving Levy’s case. At that time, he faced a charge of murder, but was unwilling to plead guilty to that charge. The sentencing judge said that this was ‘understandable’, and I agree.[5] A few weeks before the committal, Levy had made, although not signed and acknowledged, a statement in the same terms as his final signed statement. Smart pleaded guilty to manslaughter on the first day of the committal hearing on 22 May 2018. Although there is no direct evidence, I infer that Levy’s unsigned statement probably played some role in Smart’s decision to plead guilty to manslaughter — albeit on a different version of events in accordance with an agreed Amended Prosecution Opening.
[5]Sentencing Reasons [40].
Following an uncontested committal hearing, Levy was committed for trial on the charge of murder. After further discussions between his legal representatives and the Crown, the Crown accepted his plea of guilty to manslaughter. Levy formally pleaded guilty on 6 August 2018. He signed and acknowledged his statement on 15 August 2018.
On the hearing of his plea on 18 September 2018, Levy gave evidence that the statement was true and correct, and gave an undertaking to give evidence in accordance with that statement in assisting authorities in the prosecution of Colton. By this time Smart had already pleaded guilty to manslaughter, and his plea had been heard on 27 August 2018. As I have said, both Levy and Smart were sentenced on the same day, 26 September 2018.
Autopsy
On 26 October 2017, Professor Stephen Cordner carried out an autopsy on Mr Jonuzi’s body. Blood was smeared over the central areas of the face and the face was covered with a light layer of dirt and fragments of vegetation. There were signs of compression of the neck with skin bruising, bruising visible at different layers in the neck, multiple laryngeal fractures and conjunctival petechiae and haemorrhage.
According to Professor Cordner, the signs on and in the neck included an abrasion, bruises at different levels externally and internally in the neck and four fractures, with haemorrhage, of the laryngeal skeleton. Microscopically there was also damage to the cricoid cartilage. The constellation of these findings, including the conjunctival petechial haemorrhages, was typical of compression of the neck.
In addition there were numerous bruises, abrasions and lacerations to the face and scalp and a broken nose, as well as signs of injury to the body. Blood was present in the airways including the small airways indicating that it had been aspirated. The blood most likely originated from the broken nose. It was the view of the pathologist that the presence of aspirated blood in the lungs would most likely have aggravated the effects of the compression of the neck.
In respect of the level of force in the attack, Professor Cordner indicated that the nasal fractures themselves were indicative of a ‘moderately severe to severe application of force.’[6] The other facial injuries pointed to significant force. The number of individual facial injuries was suggestive of ‘a longer rather than a shorter assault to this person.’[7]
[6]Sentencing Reasons [44].
[7]Sentencing Reasons [44].
The overall findings led Professor Cordner to the view that Mr Jonuzi had been subjected to a sustained assault involving mainly the head and neck. The cause of death was determined to be compression of the neck and blunt force trauma to the head.[8]
[8]Sentencing Reasons [48].
Sentencing Reasons
The sentencing judge noted that the circumstances of the offending set out in the Sentencing Reasons were largely based upon Levy’s written statement.[9] The judge noted, however, that Smart was to be sentenced without regard to Levy’s statement.[10] It appears from the reasons given for sentencing Smart that the judge was limited by a statement of agreed facts, negotiated between Smart’s counsel and the prosecutor, which led to Smart’s guilty plea.[11]
[9]Sentencing Reasons [39], [49].
[10]Sentencing Reasons [50].
[11]R v Smart [2018] VSC 568, [47]–[48].
The sentencing judge summarised Levy’s offending in the following manner:[12]
You were present at the commencement of this attack initiated by Colton, and from an early time were actively involved in the attack. You were involved in moving the unconscious Mr Jonuzi from inside to outside. You then assisted Colton in his continuing brutal attack upon Mr Jonuzi on the front lawn. Shortly before 8.20 pm, you left that immediate scene to call the police. By your plea of guilty to manslaughter, you have acknowledged that you were complicit, which means involved in the criminal sense, in the acts, inflicted by whomever, which caused the death of Mr Jonuzi, including the compression of the neck and multiple blows and kicks to his head. That means that you remained complicit in what took place, by way of physical violence towards Mr Jonuzi, even after your temporary departure, not extending to what was done with the calligraphy case.
I point out that although there is no evidence you actually inflicted any of those numerous punches and kicks to the head or applied any of the force to the neck which caused Mr Jonuzi’s death, your involvement in this crime was far from being as a mere observer. You played an active part in the continuing, brutal attack upon Mr Jonuzi, who at every stage was outnumbered and helpless. After the attack upon him had commenced inside at a time shortly after 8.00 pm, and you had seen the vicious way in which Colton dealt with him, you stepped in to assist Colton as he choked and otherwise assaulted Mr Jonuzi. Knowing Mr Jonuzi was injured and unconscious, you carried him outside with your accomplices and dumped him unceremoniously on the lawn to be further assaulted by you and Colton. You saw at close hand the ferocity of the attack by Colton upon this helpless man, but still remained involved. In spite of hearing the cries and pleas of Mr Jonuzi for mercy, you participated in the continuing attack upon him. While Mr Jonuzi was still restrained, you had him use your phone to check his bank balance, which was an action by you in pursuit of your aim of being paid the rental arrears. Only very late in the piece when you realised the activities of the three of you had been observed by others did you go inside and telephone the police. Throughout the entirety of this attack, you did nothing to render any assistance to Mr Jonuzi, and nothing to have your co-offenders desist from their attack.
For some of this period, commencing at about 8.15 pm, although I note that the period might have commenced somewhat earlier than this, a nearby neighbour, Vikki Petraitis, heard the screams of Mr Jonuzi as you and the others attacked him. His screams sounded to her to be of someone who was in a lot of pain. The screams continued for at least ten minutes. She also heard at least one other male voice, yelling aggressively.
The description I have now given of this attack upon Mr Jonuzi and your involvement in it illustrates very clearly that your crime of manslaughter is a serious one.
[12]Sentencing Reasons [51]–[54] (emphasis added).
The sentencing judge then considered Levy’s personal background.[13] The judge noted that Levy had the benefit of a close family relationship and was doing well at school until, when he was only 13, his mother died of pancreatic cancer after a short illness. The judge accepted that this devastating event affected Levy’s life from that time, particularly as his father was perhaps ill-equipped to be a single father. Levy became affected with social anxiety and turned to high level cannabis use. This caused a downward spiral in his life. He did, however, qualify as a chef and was working as a chef until the time he was imprisoned.
[13]Sentencing Reasons [55]–[56].
The sentencing judge accepted that Levy’s plea of guilty was ‘a significant and important one’, for which he should ‘get the full benefit’ — both in terms of the utilitarian benefit flowing from the plea and as demonstrating Levy’s remorse for his role in the ‘senseless death of Mr Jonuzi’.[14]
[14]Sentencing Reasons [67]–[68].
Most importantly, the sentencing judge recorded that Levy had, unlike Smart or Colton, cooperated with the relevant authorities by making his statement and giving an undertaking to the Court to give evidence in accordance with that statement. The sentencing judge described Levy’s cooperation as ‘high level’ and noted that the prosecution agreed that he should receive a ‘very significant discount for the assistance’ that he had provided and promised to provide in the future.[15]
[15]Sentencing Reasons [69].
The sentencing judge noted that psychological reports were tendered on the plea which stated Levy met the diagnoses of ‘Adjustment Disorder — with Mixed Anxiety and Depressed Mood’ and ‘Cannabis-Use Disorder’.[16] The judge noted that the principles enunciated in R v Verdins[17] were not relied upon, but nevertheless stated that Levy’s psychological conditions were relevant material to be taken into account in arriving at an appropriate sentence.[18]
[16]Sentencing Reasons [70].
[17](2007) 16 VR 269.
[18]Sentencing Reasons [71].
The sentencing judge described Levy’s role in the offending, a matter highly relevant to parity issues, in the following terms:
In light of the facts of this case which have already been set out in some detail in this sentence, I think the submission of [counsel] as to your less active role in events outside the house relative to Smart cannot be accepted. First, the whole purpose of the attack upon Mr Jonuzi, initiated by Colton though it was, was to secure payment of money owed to you, not to Smart. Inside the house once the attack was launched, you involved yourself in it enthusiastically and at a time before Smart was even present. Even though you saw the extreme aggression and violence of Colton’s conduct, and observed Mr Jonuzi rendered unconscious by the attack, you continued to participate not only in moving the unconscious man outside, but in involving yourself further in the attack out there. You continued to observe at close hand the shocking conduct of Colton, but continued to be complicit in the offending, as your plea of guilty makes clear.
Taking everything into account, I believe your actual role in the offending was more serious than was Smart’s.
I am prepared to sentence you on the basis that you were not the instigator of this offending. The attack was initiated by Colton, joined in close to the start by you, and then a little later by Smart. But the fact remains you were prepared to go outside with the others and then render your assistance to Colton in the violent and protracted assault out there which led to the death of Mr Jonuzi. You were in a position to observe what was being done to Mr Jonuzi by Colton. You were able to see the number of blows and kicks administered to him, and presumably the effect these things had on him. You knew the reason why this was taking place was the comparatively trivial matter of some outstanding rent owed to you. You had ample opportunity to desist from your involvement in the crime and try to bring it to an end. You did not do so.[19]
[19]Sentencing Reasons [79]–[80] (emphasis added).
The sentencing judge expressly found that both Levy and Smart had good prospects of rehabilitation. The judge noted that Levy was a person who had benefitted from imprisonment because he was unable to use cannabis. The judge accepted a submission by Levy’s counsel that ‘he is free from the cannabis haze for the first time in 20 years and is finally confronting his issues honestly and openly with others’.[20] The judge expressly found that ‘fostering [Levy’s] rehabilitation in this case would be a significant sentencing purpose’.
[20]Sentencing Reasons [82].
The sentencing judge considered the victim impact statements of Mr Jonuzi’s sisters, which he noted ‘reveal graphically and in understated terms the almost unbearable sadness, anguish and sense of loss experienced by each [of them]’.[21] These victim impact statements were taken into account in the sentencing synthesis.
[21]Sentencing Reasons [85].
The sentencing judge considered that ‘[f]or what it is worth’ Levy’s offending fitted ‘within the mid-range of seriousness for offences of manslaughter’.[22]
[22]Sentencing Reasons [90].
The sentencing judge then turned to the important issue of parity in the sentences to be imposed on Levy on the one hand and Smart on the other. Having heard pleas in mitigation for both men, the judge considered the appropriate relativity between the circumstances of the offending and mitigating circumstances applicable to each man. He noted that there many similarities and many differences between their relative positions, some to the benefit of Levy and some to the benefit of Smart. The judge concluded that Levy played a greater role in the events causing Mr Jonuzi’s death than did Smart,[23] and continued: ‘But when other matters are taken into account, that changes’.[24]
[23]Sentencing Reasons [94]–[95].
[24]Sentencing Reasons [95].
The judge noted that both men pleaded guilty at an early stage;[25] Levy’s upbringing was ‘more privileged’ than Smart’s, but Levy had to deal with the death of his mother;[26] both men struggled with drug addiction for many years;[27] and both had and still have psychological difficulties which did not enliven Verdins principles.[28] The judge continued:
There is one critical difference between your position and that of Smart. You provided a statement to investigators as to the circumstances of the crime. You have given an undertaking before me to assist in the prosecution of Colton. That is a matter which, for all the reasons explained in the authorities, entitles you to a substantial discount in sentence. Smart is entitled to no such discount.
…
In the end, I consider that the discount in sentence to which you are entitled for the very weighty matter of your co-operation with the authorities and undertaking to assist in the prosecution of Colton dictates that you should receive a sentence which is significantly lower than Smart’s.[29]
[25]Sentencing Reasons [96].
[26]Sentencing Reasons [97].
[27]Sentencing Reasons [97].
[28]Sentencing Reasons [97].
[29]Sentencing Reasons [98]–[99] (emphasis added).
The sentencing judge referred to the applicable sentencing considerations of just punishment, denunciation, general and specific deterrence and Levy’s prospects of rehabilitation, and then sentenced Levy.
When sentencing Levy and Smart, the sentencing judge did not know that Colton — who was on any view the instigator of the events leading to Mr Jonuzi’s death and played the most significant role in that regard — would later plead guilty to manslaughter and be sentenced by a different judge to 11 years’ imprisonment with a non-parole period of eight years.[30] On the hearing of Levy’s application for leave to appeal, it was acknowledged by the respondent that this is a relevant matter for this Court to take into account in considering parity issues.
[30]R v Colton [2019] VSC 154.
While there are three proposed grounds of appeal, the parity ground — ground 3 — is central to the determination of the application. In my view, the parity ground should succeed. Accordingly, I would grant leave to appeal on ground 3 and allow the appeal on that basis in the terms later set out. For the reasons given below, I do not think there is any merit in proposed grounds 1 and 2, and I would refuse leave.
Proposed ground 1
Proposed ground 1 seeks to challenge the sentencing judge’s finding that it was Levy’s ‘desire to be paid’ Mr Jonuzi’s unpaid rent of $210 ‘which was at the heart of the offending’. Levy contends that the sentencing judge referred to this factor as increasing Levy’s moral culpability, and this was an error because it was not Levy who initiated the attack but Colton. I am not persuaded that the sentencing judge made the error complained of. It is clear that Mr Jonuzi’s unpaid rent, which was due to Levy and not Colton, was the source of the disputation with Mr Jonuzi. Levy had been chasing the rent. It was in the interests of Levy, Smart and Colton to obtain payment so that, I infer, sufficient money would be at hand to pay the unpaid rent due to the landlord and thus avoid eviction under the notice to quit. Reading the sentencing reasons as a whole, I do not see that the judge used this uncontroversial fact to increase Levy’s moral culpability.
Proposed ground 2
By proposed ground 2, Levy seeks to challenge the sentencing judge’s finding that he ‘had ample opportunity to desist from [his] involvement in the crime and to try and bring it to an end’ but ‘did not do so’. On this basis, it is contended that the sentencing judge impermissibly increased Levy’s moral culpability. I do not accept this contention. Reading the sentencing reasons as a whole, it is clear that the sentencing judge was not referring to the unchallenged evidence that, when he came to his senses, Levy made the decision to stop his involvement in the assault on Mr Jonuzi and to go inside and telephone the police. Rather, the sentencing judge was referring to the events before Levy came to his senses, during which he had ample opportunity to desist from his involvement in the assault. This is clear from the sentencing judge’s observation about Levy’s role in the offending, in the following terms:
Only very late in the piece when you realised the activities of the three of you had been observed by others did you go inside and telephone the police. Throughout the entirety of this attack, you did nothing to render any assistance to Mr Jonuzi, and nothing to have your co-offenders desist from their attack.[31]
[31]Sentencing Reasons [52].
This passage makes it clear that the sentencing judge was well aware of the distinction between Levy coming to his senses and going inside to call the police, and the events which occurred before that.
Ground 3: parity
The policy underlying the parity principle was recently summarised by this Court in Philp v The Queen:[32]
The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community’s sense of justice, for the reasons which Mason J gave in Lowe v The Queen:
Just as consistency in punishment – a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[33]
[32][2017] VSCA 320, [5] (Maxwell P and Croucher AJA).
[33](1984) 154 CLR 606, 610–611.
The legal principles applicable to a complaint of disparity have been stated in many cases.[34] This Court (Whelan, Santamaria and Beach JJA) in Collins v The Queen summarised the principles in the following terms:
Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[35]
[34]See, eg, Lowe v The Queen (1984) 154 CLR 606, 609–10 (Gibbs CJ), 610–11 (Mason J) (‘Lowe’); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ) (‘Green’); Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’); Vi v The Queen [2017] VSCA 254.
[35]Collins [2015] VSCA 106, [23] (citations omitted).
To similar effect is the following summary of the principles by Weinberg, Whelan and Priest JJA in Ryan v The Queen:
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[36]
[36]Ryan [2016] VSCA 255, [42].
As appears above, the sentencing judge considered that the ‘critical difference’ between Levy’s position and that of Smart was that Levy had given a statement — which was accepted by the prosecution to contain a true account of events — and had undertaken to give evidence in the prosecution of Colton. The sentencing judge said that Levy’s assistance to authorities entitled him to a substantial discount in sentence and that Smart was entitled to no such discount.[37] Other than saying that the discount should be ‘substantial’ and lead to a ‘significant’ difference in the sentences imposed on the two men, the sentencing judge did not say anything more on the topic.
[37]Sentencing Reasons [98]–[99].
In R v Johnston,[38] the applicant’s cooperation led to a concession by the Crown that he was ‘entitled to the maximum discount on sentence which proper sentencing practice is able to afford him’. Nettle JA (with whom Buchanan and Ashley JJA agreed) said:[39]
… Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.
So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique.[40] Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.[41]
[38](2008) 186 A Crim R 345 (‘Johnston’).
[39]Ibid 350–1 [20]–[21].
[40]R v Schioparlan (1991) 54 A Crim R 294, 299, 305 (Young CJ, Marks and Brooking JJ).
[41]R v Golding (1980) 24 SASR 161, 173–4.
In Director of Public Prosecutions v Cooper,[42] this Court (Weinberg, Priest and Beach JJA) said of Johnston:[43]
A discount of fifty per cent on sentence was thought to be justified in Johnston because of the very high level of assistance provided to authorities. It should not be thought, however, that there is a ‘tariff’ or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way.[44] The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including — but not limited to — the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman, however:[45]
… it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.
[42][2018] VSCA 21.
[43]Ibid [45].
[44]R v Kohunui [2009] VSCA 31, [25], citing Vincent AJA in R v Cuthbertson (Unreported, Court of Appeal Victoria, 13 November 1995).
[45]R v Freeman (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), citing R v Su [1997] 1 VR 1, 78–9. See also Scerri v The Queen (2010) 206 A Crim R 1, 9 [35] (Maxwell P and Buchanan JA); R v Cartwright (1989) 17 NSWLR 243, 252–3 (Hunt and Badgery-Parker JJ; Mahoney JA agreeing).
Rival submissions
Levy contends that he has a justifiable sense of grievance concerning the length of his sentence, when compared with those given to Smart and Colton. In his written case, filed before Colton had pleaded guilty to manslaughter and been sentenced, he focused on the difference between his position and that of Smart. In addition to the critical difference arising from his cooperation with the authorities, in circumstances where Smart provided none, Levy contends that there are two further key differences which were not given sufficient weight by the sentencing judge.
First, Levy points to the fact that it was him who came to his senses and ceased offending, and then called the police. On the other hand, Smart continued his involvement up to the time police attended.
Second, Levy contends that the sentencing judge gave insufficient weight to the fact that he displayed a greater level of remorse than Smart. The judge accepted that he gave full admissions at his second interview, and thus showed remorse from a very early time. On the other hand, Smart lied in his second interview,[46] and thus it was not until his guilty plea at committal that he acknowledged his role and expressed some remorse.
[46]R v Smart [2018] VSC 568, [40].
Further, Levy contends that the sentencing judge erred in his assessment that Levy played a greater role in the offending which led to Mr Jonuzi’s death than did Smart.
In oral submissions, with the benefit of reading the Colton sentencing reasons, counsel for Levy focused on the differences between Levy’s and Colton’s respective positions. Understandably, his focus was on the fact that Colton’s role in the offending was much greater than Levy’s. Colton instigated the attack and obviously played a greater role in the violence inflicted on Mr Jonuzi. A particularly aggravating factor was Colton’s gratuitous act in forcing the calligraphy case into Mr Jonuzi’s anus. Further, as counsel emphasised, Colton had relevant prior convictions for physical violence against others such that his offending, unlike that by Levy and Smart, could not be viewed as ‘isolated, abhorrent behaviour’.[47]
[47]R v Colton [2019] VSC 154, [36].
On behalf of the Crown, it was contended that the sentencing judge gave full weight to the differences between the respective positions of Levy and Smart, which were the only sentencing dispositions available to him, and the lesser sentence given to Levy showed due recognition to the sentencing discount he was entitled to as a result of his cooperation with authorities.
Analysis
In this case, Levy’s cooperation by making his statement implicating Colton as the main offender — the truth of which is accepted by the Crown — was very significant; especially when combined with his willingness to give evidence against Colton. In fact, although unknown to the sentencing judge, Levy gave evidence against Colton and thus exposed himself to the dangers flowing from such cooperation. In submissions before us, the Crown accepted that the no case submission on Colton’s murder charge, which found favour with the trial judge (Hollingworth J), was not caused by any failure of Levy to ‘swear up’ to his statement but, rather, resulted from concessions made by Professor Cordner that there were three possible causes of Mr Jonuzi’s death, only one of which was related to Colton’s choking him; and he was unable to say from a medical point of view that one cause was more likely than the others. In these circumstances, Hollingworth J accepted that there was no direct evidence as to what the fatal act or acts were, or who inflicted them, and accepted the no case submission on the reckless murder charge against Colton.[48]
[48]Ibid [40].
Considering the sentencing reasons for Levy, Smart and Colton as a whole, and comparing their respective positions, I am persuaded that the sentencing judge did not give Levy a sufficient ‘discount’ for his considerable assistance to authorities. I would have been of this view even if Colton had not been sentenced in the manner he was and the comparison was only between the respective sentences imposed on Levy and Smart. This was the position that the sentencing judge was in. Taking the circumstances as a whole, it cannot be said that Levy’s role was significantly greater than that of Smart. It was marginally greater at best. Further I accept the contention made on Levy’s behalf that there are material differences arising between Levy and Smart by reason of Levy’s actions in stopping his involvement in the assault on Mr Jonuzi and telephoning the police, and his considerably earlier expressions of remorse by telling the truth in his second interview when Smart continued to lie at that stage.
When the sentence given to Colton is considered, an objective sense of grievance arising from the length of his sentence is even more justifiable. Colton’s moral culpability is far higher than Levy’s. Given his relevant prior convictions, specific deterrence had a significant role to play in his sentencing. Moreover, his lack
of remorse stands in stark contrast to the early remorseful actions of Levy. On that issue, Hollingworth J stated in sentencing Colton:
Asked by the police what had happened, both at the crime scene and in your subsequent formal interviews, you told them a pack of lies. You accused Mr Jonuzi of being the primary aggressor; you said that you had only been trying to subdue him, to defend yourselves. You downplayed the nature and extent of the violence in which the three of you had engaged. Even after you were aware that he had died, you called Mr Jonuzi a ‘scumbag’, a piece of trash, a junkie, someone who deserved everything he got.[49]
[49]Ibid [24].
In all the circumstances, placing principal weight on the discount for his cooperation with authorities, Levy should be re-sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had Levy not pleaded guilty, I would have imposed a sentence of nine years’ imprisonment with a non-parole period of seven years.
CROUCHER AJA:
I have had the considerable advantage of reading in draft the judgment of Hargrave JA. I agree, for the reasons given by his Honour, that Grounds 1 and 2 should fail but Ground 3 should succeed and that, in consequence, the application for leave to appeal should be granted, the appeal allowed and the applicant resentenced in the manner proposed. I wish to add only the following remarks.
As I understood both parties at the hearing, they accepted, correctly in my view, that a sentence may offend the principles of parity among co-offenders without being manifestly excessive. Indeed, no complaint of manifest excess was made in this case, and yet the ground touching parity has succeeded. That said, in much the same way that the stringency of the grounds of manifest excess and manifest inadequacy of sentence reflect, at least in part, the primacy of the sentencing judge’s discretion, a good deal of latitude must be given to the primary
judge tasked with weighing the various considerations — some different, some similar — applicable to sentencing co-offenders and arriving at sentences which seek to reflect those considerations fairly and thereby comply with parity principles.
Bearing in mind that and all other relevant considerations, I am nevertheless persuaded that it was necessary to impose a substantially shorter sentence on the applicant in light of the sentences imposed upon his two co-offenders. The principal reason for that conclusion, as Hargrave JA observes, is the ‘discount’ on sentence to which the applicant was entitled on account of his ‘considerable assistance to the authorities’, a factor which was not applicable to either of his co-offenders. That assistance began relatively early and continued until after the applicant’s sentence, when he gave evidence, in accordance with his promise and the terms of his statement, at the trial of Mr Colton. In fact, while the judge no doubt proceeded on the basis that the applicant would honour his undertaking to assist, that he did assist when called upon, and that we now have Mr Colton’s sentence (imposed later and by a different judge) as another comparator, makes it even clearer to me that the applicant’s sentence is afflicted with manifestly insufficient disparity.
While the Director was correct to submit that there is ‘no set proportion or necessarily correct discount’ for such assistance, and that the assistance in this case did not warrant the ‘highest discount’, it was also conceded that the applicant was still entitled to a ‘very significant discount’ for his ‘high level of co-operation’. These latter descriptions, of course, were those used by the judge in his reasons for sentence when recounting the prosecution’s position on the plea, but, in my respectful opinion, they were not sufficiently reflected in the sentence imposed. The applicant did, after all, turn Crown witness in a multi-headed murder case and incur all the risks, and perceived risks, that come with such a choice. In my judgment, even putting aside (for the moment only) the view expressed by Hargrave JA, with which I respectfully agree, that the applicant’s role, at best, was only marginally greater than Mr Smart’s, the applicant’s sentence was still manifestly insufficiently disparate with those of his co-offenders on account of his assistance to the authorities. When the closer identity between the roles of the applicant and Mr Smart is considered, along with the applicant’s actions in ceasing his involvement in the assault on Mr Jonuzi and telephoning the police, and his considerably earlier expressions of remorse by telling the truth in his second interview when Mr Smart continued to lie at that stage, the insufficiency in the disparity is even more pronounced.
Finally, at the hearing, the Director took up the argument that, in some cases, the offending in question is too serious to warrant the percentage level of discount that might be warranted for assisting the authorities in case of less serious offending. Instead, it was submitted, a discount could still be regarded as very significant if measured, say, in years but not in quite the same terms when considered as a proportion of the overall sentence, and yet still be adequate. Whether or not that is correct need not be decided in this case. For, while the manslaughter committed by the applicant was no doubt a serious example of the offence, there is no dispute that he was entitled to a ‘very significant discount’ on sentence on account of his ‘high level’ of assistance. Further, while the resulting sentence proposed by Hargrave JA, and with which I agree, is a good deal less than is commonly imposed for manslaughter these days, it is not so low as to be outside the range open when all matters are weighed in the balance. It must also be remembered that the substituted sentence — of five-and-a-half years’ imprisonment with a non-parole period of three-and-a-half years — will involve a particularly hard time for the applicant, because of the risks, and perceived risks, to which those who turn Crown evidence are exposed. Moreover, as Charles JA (with whom Callaway JA and Vincent AJA agreed) observed nearly 25 years ago in R v Rostom,[50] those in the applicant’s position may well remain marked men beyond their sentences.
[50](1996) 2 VR 97, 102.
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