Loftus v The Queen
[2019] VSCA 24
•19 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0227
| STEPHEN LOFTUS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN AP and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 February 2019 |
| DATE OF JUDGMENT: | 19 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 24 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1489 (Judge Trapnell) |
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CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to a total effective sentence of three years’ imprisonment, with a non-parole period of two years, on 14 burglary, theft, attempt to obtain property by deception, obtaining property by deception and blackmail related charges – Applicant not Australian citizen – 12 month sentence gave rise to automatic cancellation of visa under s 501(3A) of Migration Act 1958 (Cth) – Sentencing discretion re-opened – Application for leave granted and appeal allowed – Total effective sentence of two years’ imprisonment imposed with a non-parole period of 12 months – Allouch v The Queen [2018] VSCA 244 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Tait Lawyers |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN AP
NIALL JA:
Introduction
On 12 July 2018, the applicant pleaded guilty in the County Court to two charges of burglary, three charges of theft, seven charges of obtaining property by deception, one charge of attempt to obtain property by deception and one charge of blackmail and was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of two years. The sentence was structured as follows:[1]
[1]DPP v Stephen Loftus [2018] VCC 1489, 59–60 (Judge Trapnell) (‘Sentencing Reasons’).
Charge on Indictment Offence Maximum Sentence Cumulation
1 Burglary [Crimes Act 1958 s 76(1)] 10 years 12 months’ imprisonment 5 months 2 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment (aggregate sentence for Charges 2, 4, 5, 6, 7, 8, 9 and 10) 3 months 3 Theft [Crimes Act 1958 s 74] 10 years
4 months’ imprisonment 2 months 4 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 5 Attempt to obtain property by deception [Crimes Act 1958 ss 81 and 321M] 5 years See Charge 2 6 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 7 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 8 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 9
Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 10
Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 11 Burglary [Crimes Act 1958 s 76(1)] 10 years 14 months’ imprisonment 6 months 12 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment 2 months 13 Blackmail [Crimes Act 1958s 87] 15 years 18 months’ imprisonment Base 14 Obtain property by deception [Crimes Act 1958 s 81] 10 years 3 days’ imprisonment Nil Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 2 years Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: N/A 6AAA Statement: But for the plea of guilty, a total effective sentence of 4 years’ imprisonment with a non-parole period of 3 years would have been imposed.
The application for leave to appeal against the applicant’s sentence contained a single proposed ground (‘Ground 1’), namely, that when regard is had to the objective seriousness of the blackmail charge (Charge 13), the individual term of imprisonment imposed on that charge, the orders for cumulation made and the non-parole period fixed are manifestly excessive.
In the course of its written response, the respondent noted that the material before the judge indicated that the applicant was not an Australian citizen and, as such, was liable to have his visa cancelled and be deported by reason of the sentence imposed. As will appear, the power, and in some circumstances the duty, to cancel the applicant’s visa rests with the Commonwealth Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’).[2] The Minister’s exercise of this power depends on the nature of the convictions and whether or not a sentence of imprisonment of more than 12 months has been imposed.[3]
[2]Migration Act 1958 (Cth) s 501 (‘Migration Act’).
[3]Ibid ss 501(2), (6)–(7).
In light of the respondent’s submission, the applicant was given leave at the hearing to add a second proposed ground of appeal (‘Ground 2’), contending that the sentencing judge failed to take into account the additional burden of custody on the applicant because of the prospect of deportation following the expiration of his sentence. Leave to add that ground was not opposed by the respondent.
For the reasons that follow, we grant the applicant leave to appeal on Ground 2 and allow the appeal.
Circumstances of offending[4]
[4]This description of the circumstances is drawn from the summary of prosecution opening and the Sentencing Reasons (n 1).
At the time of the offending, the applicant was 38 years old[5] and employed by Independent Project Solutions (‘IPS’). IPS is a business engaged in office fit outs and demolition. The business was jointly owned by Aaron Freeland and the applicant’s father, Terry Loftus.
[5]The applicant’s date of birth is 19 November 1977.
On the morning of 8 July 2016, the applicant entered 30 Convention Place, South Wharf using a swipe card to gain access (Charge 1 — Burglary). IPS had been contracted to undertake work at this site, and the applicant was working on the site as a subcontractor to that company.
The applicant took the goods lift up to level six and stole two tool kits containing tools worth $2,366.85 belonging to three men who were subcontractors working on the site for a different company (Charge 3 — Theft). The applicant also stole a wallet belonging to another subcontractor, Mr Hart, working on the site (Charge 2 — Theft).
CCTV footage showed the applicant leaving the site with the abovementioned items not long after entry. He was wearing sunglasses and a hood in an attempt to conceal his face.
Shortly after leaving the site, the applicant used a credit card from Mr Hart’s wallet to purchase various items with a total value of $419.69. None of the purchased items have been recovered (Charges 4–10 — Theft and related charges).
On 12 July 2016, the applicant attended 250 Collins Street, Melbourne. IPS had been engaged to conduct demolition work at this site. The applicant had been provided with an access pass for this site the previous day. He used that pass to enter the building (Charge 11 — Burglary).
Inside the building, the applicant stole two security shirts, two two-way radios, a mobile phone and approximately 100 sets of keys to the building from the security office. Master keys for the buildings at 230, 234 and 250 Collins Street were amongst the keys the applicant stole. The applicant also stole a Stanley toolkit with assorted tools (Charge 12 — Theft). The combined value of these stolen items was $4,909.97.
CCTV again recorded the applicant leaving the building at 4:52 am carrying some of the stolen items. Mr Freeland later identified the applicant on CCTV. The access pass that had been given to the applicant was identified as the pass used to gain entry.
Later that day, Mr Freeland spoke to the applicant over the phone and told him that he was banned from the site. Despite this, at 4:10 pm that day, the applicant attended at 250 Collins Street. Police attended and the applicant was subsequently arrested. The access cards that had been used to gain entry to 250 Collins Street, a number of keys and tools were found in his possession.
Searches of both the applicant’s car and home revealed a number of the stolen items including the toolbox, the orange high-visibility top worn during the burglary, a large number of keys and a white bag that had been used to carry the items from 250 Collins Street. The master keys and security shirts were not recovered.
The applicant participated in a record of interview with police in which he was less than forthcoming. He denied the thefts, said that he was being set up by Mr Freeland and said that he may have ‘on occasion picked up a wrong tool or something like that’.[6] Following the interview, the applicant was released from custody pending summons.
[6]Sentencing Reasons (n 1) 46 [16].
Undeterred, on the following day, 13 July 2016, the applicant contacted Mr Freeland and demanded $500 for the return of the master keys and uniforms. The applicant stated that he wanted $300 now and that the rest could be paid at a later time.
Later that day, the applicant met with Mr Freeland at the Miller’s Inn Hotel in Altona. Mr Freeland paid the applicant $300. The applicant did not hand back the keys and left shortly after receiving the money.
The applicant made further demands of Mr Freeland that day via text message, resulting in Mr Freeland depositing a further $350 into the applicant’s bank account.
During the course of 13 July 2016, the applicant continued to demand money from Mr Freeland. He asked Mr Freeland for a further $300 and arranged to meet him. When Mr Freeland was on the way to the meeting point, the applicant sent him a text message stating that he was dropping the keys into the water. Mr Freeland asked a former employee, Adrian Newman, to accompany him to the meeting. According to Mr Newman, the applicant did not have the keys with him at the meeting, and so Mr Freeland and Mr Newman left.
Subsequently, the applicant sent a text message to Mr Freeland stating, ‘silly boy 500 now’.[7]
[7]Ibid 47 [20].
Mr Freeland paid a total of $650 to the applicant in two separate transactions as a result of the applicant’s demands (Charge 13 — Blackmail).
On 17 July 2016, the applicant went to Werribee Cash Converters with the planer that he had purchased using Mr Hart’s credit card. He sold the planer to Cash Converters for $20, using his driver’s licence for identification (Charge 14 — Obtain property by deception).
On 2 November 2016, the applicant participated in a taped record of interview with police where he made substantial admissions and attributed his offending to desperation, stupidity and being affected by ice. In relation to the blackmail charge the applicant said that he had a number of conversations with Mr Freeland about returning the stolen keys, stating that, ‘what I was trying to do was basically get some money out of him’.[8] The applicant further stated, ‘[o]n a couple of occasions, he gave me some money and then he sent Adrian and Wade to beat me up’.[9]
[8]Ibid 48 [22].
[9]Ibid.
The applicant subsequently pleaded guilty and was sentenced as set out above.
Subsequent offences
At the time of sentence the applicant was under a Community Correction Order (‘CCO’) that had been imposed in the Magistrates’ Court for other offending.[10] It is convenient at this point to refer to that offending.
[10]Ibid 55 [53], 57 [63].
On 12 July 2017, the applicant appeared in the Magistrates’ Court charged with a number of offences.[11] He was convicted on these charges and sentenced to eight months’ imprisonment with a CCO for 15 months to follow.[12] Those proceedings involved the consolidation of 31 charges including property offences, drug offences and offences of violence. The offending occurred between March 2016 and June 2017. As is apparent, the current offending occurred within that date range.
[11]Ibid 54–5 [52].
[12]Ibid 55 [53].
The first charges to which the applicant pleaded guilty related to a burglary of a residential premises on 22 August 2016 during which the applicant stole, amongst other things, two drills, a handsaw and jumper leads. On 7 August 2016 and 14 August 2016 the applicant burgled another residential address, where construction work was being undertaken, stealing a large number of items including circular saws and drills.
On 26 October 2016 the applicant breached a family violence intervention order which had been served on him on 8 October 2016 and which prohibited contact with his former partner. It appears that the applicant and his former partner continued to reside together notwithstanding it constituted a breach of the intervention order obtained by his domestic partner. In the course of an argument, the applicant assaulted her by throwing a drink bottle at her striking her in the head and by striking her in the mouth with his right fist.
In April 2016 the applicant assaulted and threatened to kill or inflict serious injury to his former partner.
In June 2017 the applicant again breached a family violence intervention order and assaulted his former partner. In doing so, he committed an indictable offence whilst on bail.
It is not necessary to rehearse the individual sentences for each of these charges to which the applicant pleaded guilty. He was sentenced to a total effective term of imprisonment of eight months with a CCO for 15 months commencing on the completion of the prison term. It appears from the summary before the Magistrate that the current charges were identified as outstanding matters, although at that stage the charges were still pending authorisation.
Reasons for sentence in the County Court
After reciting the details of the offences, which we have set out above, the judge explained his assessment of the seriousness of the offending, addressed the personal circumstances of the applicant, including his substance abuse and mental health, the applicant’s prior criminal history and subsequent offending and mitigating factors. In recounting the reasons for sentence, it is convenient to use the same headings as those given by the judge.
Offence seriousness
The judge identified the blackmail charge as being the most serious of the offences and noted that the gravity of the offending was increased because it had been committed the day after the applicant had been arrested, searched and interviewed by police in relation to the matters giving rise to Charges 1 to 12.[13] The seriousness of the offence was also increased because it involved the applicant seeking to further profit from his earlier offending.[14]
[13]Ibid 48 [25].
[14]Ibid 49 [26].
Although the amount sought from the blackmail was relatively modest, the judge noted that, as a consequence of the fact that the keys had never been recovered, the owner of the buildings had to change a large number of locks in three city buildings at a cost of $19,765.66.[15] This amount was the subject of an order for compensation made against the applicant.[16]
[15]Ibid.
[16]Ibid.
In the applicant’s favour, the judge noted that it was not a continuing case of blackmail, the offence had been committed during the course of a single day and it did not involve actual or threatened physical violence directed towards the victim.[17]
[17]Ibid 49 [27].
Having regard to those matters, the judge said that the blackmail fell ‘at the lower end of the mid-range level of seriousness for offences of this kind’.[18] The judge noted that general deterrence, denunciation and just punishment are significant sentencing considerations in relation to blackmail.[19] Further, the judge noted that blackmail is an offence that is frequently hard to detect, especially when the perpetrator preys, or attempts to prey, on the fear that their conduct inspires.[20]
[18]Ibid 49 [28].
[19]Ibid 49 [29].
[20]Ibid 49–50 [30], citing R v Vo (Victorian Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998) (‘Vo’).
Although the reasons concentrated on the gravity of the blackmail, the judge noted the other offences were also serious.
Applicant’s personal circumstances
The judge first referred to the applicant’s family background, noting that the applicant was born in the United Kingdom and immigrated to Australia with his parents when he was 10 years old.[21]
[21]Ibid 50 [34].
The applicant married in 2001 and had three sons (one who took his own life in December 2015 at the age of 14).[22] The marriage broke down in 2005 and his surviving sons, aged 15 and 11, are in the care of their mother and stepfather.[23]
[22]Ibid 52 [41].
[23]Ibid.
In 2012, the applicant remarried and subsequently separated in 2014.[24] The applicant has three daughters born to this relationship who are now aged nine, seven and four.[25] The judge noted that the applicant was uncertain of the exact location of his daughters, but believed they were living in Perth.[26]
[24]Ibid 52 [42].
[25]Ibid.
[26]Ibid.
After completing schooling to year 12, the applicant worked in various positions in a supermarket, the building industry, a security company, a carpet company, a tele-marketing company, his father’s air-conditioning company, another air-conditioning company and his own company selling mobile telephones.[27]
[27]Ibid 51 [38].
The applicant moved to Victoria in the latter part of 2014 and was employed by another air-conditioning company, his father in a fitness business and as a sub-contractor to his father’s former business partner, Mr Freeland.[28] The judge also noted that the applicant had recently established a small business in cleaning and maintenance.[29] In addition, over the three month period prior to sentencing, the applicant had performed other work as an employee and/or subcontractor in cleaning, maintenance and construction.[30] The judge referred to evidence that, at the time of sentencing, the applicant’s employer was unaware of the fact that he is subject to a CCO and that he was facing charges in the County Court.[31]
[28]Ibid 51 [37]–[38].
[29]Ibid 51 [38].
[30]Ibid.
[31]Ibid.
The judge then referred to character references, including one from Mr Carney who spoke of the applicant’s general character and work ethic.[32] Mr Carney stated that he looks forward to ‘an ongoing relationship with [the applicant] in both a business and personal capacity’.[33] The judge took all of the character references into account in the applicant’s favour.[34]
[32]Ibid 51–2 [39].
[33]Ibid 52 [39].
[34]Ibid.
Substance abuse and mental health
The judge noted that the applicant began using cannabis at the end of 2014 before starting to use methamphetamine.[35] By 2015, the applicant had developed a daily habit of use of methamphetamine.[36] According to Mr Healey, who prepared a psychological report in relation to the applicant, the applicant’s drug abuse was ‘exacerbated by the death of his father’s partner, Julie, [in early 2016] further compounded by the suicide of his son in December 2015’.[37]
[35]Ibid 53 [45].
[36]Ibid.
[37]Ibid 52 [40].
Not long before the applicant was remanded in custody in June 2017, he made an attempt to cease his substance abuse.[38] The judge noted that the applicant claimed to have abstained from drugs while in custody, and on bail.[39] However, as set out in further detail below, the applicant returned two positive drug screens undertaken during his CCO.[40]
[38]Ibid 53 [45].
[39]Ibid.
[40]See [53]–[55] below.
In addition to the taking of illicit drugs, the applicant also had a history of excessive alcohol consumption.[41] The judge noted that the applicant had voluntarily admitted himself into a rehabilitation unit run by the Salvation Army.[42]
[41]Sentencing Reasons (n 1) 53 [46].
[42]Ibid.
The applicant suffers from ongoing grief as a consequence of the deaths of his son and his stepmother.[43] Further, since his early thirties, the applicant has been treated for depression and was previously prescribed an anti-depressant.[44] It was the view of Mr Healey that the applicant no longer suffers ‘the significant depression and anxiety that troubled him previously’.[45]
[43]Ibid 52 [40].
[44]Ibid 53 [47].
[45]Ibid.
Mr Healey did not diagnose any relevant mental illness and, accordingly, the judge stated that no Verdins principles were engaged in the applicant’s case.[46]
[46]Ibid 54 [50].
Applicant’s prior criminal history
The applicant has a prior criminal history in Western Australia, including an offence of breaching a violence restraining order, breaching a police order and assault occasioning bodily harm.[47] The judge correctly noted that the convictions in the Magistrates’ Court in July 2017, which we have set out above, did not constitute prior convictions however, as subsequent convictions, they bore upon an assessment of character, risk of recidivism and the need for specific deterrence and protection of the community.[48]
[47]Ibid 54 [51].
[48]Ibid 56 [59]–[60].
The judge noted that the offences for which the applicant was being sentenced occurred in July 2016 and, but for the blackmail charge, could have been dealt with summarily at the same time as he was sentenced in the Magistrates’ Court on 12 July 2017 on the other unrelated offences. As the judge noted, had all of the offences been dealt with in July 2017 in the Magistrates’ Court, there would have been a likelihood of some concurrency between the unrelated offences dealt with by the Magistrates’ Court and the present offences.[49]
[49]Ibid 55 [55]–[56].
Mitigating circumstances
The judge observed that, notwithstanding early guilty pleas, there was insufficient evidence before him to make a finding in the applicant’s favour of true contrition and remorse.[50] He observed that he did not understand the applicant’s counsel to have submitted to the contrary. The judge said that given the applicant’s attitude to the blackmail offence, particularly as expressed to the author of the pre-sentence report by Corrections Victoria which the judge had ordered, it was clear that the applicant was unrepentant, entirely lacking in remorse and lacking insight into the offending.[51]
[50]Ibid 56 [61], citing Barbaro v The Queen (2012) 226 A Crim R 354, 364–5 [32]–[38] (Maxwell P, Harper JA and T Forrest AJA).
[51]Sentencing Reasons (n 1) 56–7 [61].
The judge observed that the applicant’s compliance with his existing CCO had been poor. The applicant had missed nine scheduled appointments for drug counselling.[52] The applicant’s two supervised drug screens had returned positive findings, one for methamphetamine and the second for marijuana.[53]
[52]Ibid 57 [64].
[53]Ibid.
The judge said that testing undertaken as part of the assessment of his suitability for a CCO, using the Level of Service/Risk-Need-Responsivity tool, had recorded a high risk of reoffending for the applicant.[54] The assessment report also revealed that the applicant drank alcohol excessively and had reported for an interview with a blood alcohol reading of .099% at 10:10 am. He had admitted to continuing to smoke marijuana and had expressed the belief that drug and alcohol counselling was a waste of time.[55]
[54]Ibid 57–8 [66].
[55]Ibid 58 [66].
The judge rejected a submission that the applicant should have a further CCO imposed and concluded that a sentence of imprisonment was the only appropriate sentence in the circumstances.[56]
[56]Ibid 58 [68].
Migration Status
In relation to the applicant’s migration status, the judge noted the evidence, contained in a psychologist report tendered on the plea, that the applicant is not an Australian citizen.[57] The judge said that no submission had been made regarding the relevance of that fact for sentencing purposes.[58]
[57]Ibid 50 [34].
[58]Ibid.
Parties’ submissions
Ground 1
The applicant submitted that the judge mischaracterised the gravity of the blackmail charge in concluding that it fell within the mid-range, albeit at the lower end, of seriousness for offences of this kind. The applicant emphasised that the offending was of limited duration, there was no actual or threatened physical violence, no weapon was used, no victim impact statement was tendered, the relatively modest amount demanded and the applicant’s plea of guilty. In the applicant’s submission, these matters warranted a finding that the blackmail was at the lowest end of the spectrum.
In the course of oral argument, counsel for the applicant referred to, by way of comparison, the sentences considered by this Court in Aitken v The Queen (‘Aitken’)[59] and DPP v Oksuz (‘Oksuz’).[60] The point being made was that in those cases the blackmail involved significant threats of violence and various aggravating features not present here, but the offenders were given a sentence of two years and six months in Oksuz and three years and six months in Aitkin.
[59][2017] VSCA 103 (‘Aitken’).
[60](2015) VR 731 (‘Oksuz’).
In Oksuz, Redlich JA noted that the blackmail in issue was ‘a very serious example of the offence’.[61] His Honour acknowledged that the offending was a ‘particularly nasty’ blackmail as it involved a threat of serious physical harm and the threats were largely directed at the victim’s son in prison.[62] Accordingly, Redlich and Kyrou JJA and Croucher AJA found that, although lenient, the sentence imposed for the blackmail charge (of two years and six months) fell within the available range.[63]
[61]Ibid 735 [11].
[62]Ibid.
[63]Ibid 735 [11] (Redlich JA), 758 [116] (Kyrou JA), 784 [227] (Croucher AJA).
The offending in Aitken occurred over a period of two months and involved ‘chilling threats’ to kill made to the complainant, as well as her friends and members of her family.[64] Further, the appellant in that case included graphic images of guns and bullets and ‘an unknown face that had been shot’ with the threats.[65] In that case, this Court overturned a sentence of five years and resentenced the offender to three years and six months on the blackmail charge.
[64]Aitken (n 59) 42 [101].
[65]Ibid.
The applicant submitted that Oksuz and Aitken represent serious cases of blackmail, with features that are absent in the present case.
In relation to Ground 1, the respondent noted that the maximum penalty for blackmail is 15 years’ imprisonment and that it has long been regarded as a very serious offence. The respondent noted that the essence of the offence is the making of a demand with menaces or threats[66] and that a menace can include a threat of harm to property belonging to another.[67] The respondent submitted that the blackmail in the present case was persistent, with the applicant increasing his demands during the course of the day.
[66]Austin v The Queen (1989) 166 CLR 669, 675.
[67]See, eg DPP v Kuo (1999) 49 NSWLR 226.
The respondent noted that physical violence is not an element of the crime of blackmail and that general deterrence remained in this case an important consideration in imposing the sentence.
The respondent submitted that there was no error in the judge’s characterisation of the blackmail offence which, allowing for the matters relied on by the applicant, nevertheless was aggravated by the fact that it occurred after the applicant had been arrested and interviewed on the burglary charges.
Ground 2
The applicant submitted that the fact that a person may be deported, as a result of a sentence, is a relevant factor in sentencing. He relied on the decision of this Court in Allouch v The Queen (‘Allouch’)[68] as confirming that the prospect that an offender is liable to deportation following sentence is a relevant sentencing factor. In these circumstances, the possibility of deportation may be relevant to the hardship that will be felt by an offender, uncertain as to whether at the end of his sentence he will be required to leave Australia and return to his country of origin.[69] It is additionally punitive because it destroys the opportunity to settle permanently in Australia.[70]
[68][2018] VSCA 244 (‘Allouch’).
[69]Ibid 9–10 [39].
[70]Ibid 10 [39].
The applicant submitted that the judge recognised the possibility of deportation as a potential matter that might bear upon sentencing, however, the judge noted that no submissions had been advanced on this matter and so he had put it to one side.
The applicant recognised that it was a failure, on the part of the applicant, not to rely on the relevance of the risk of deportation in sentencing. Nevertheless, the applicant submitted that, this failure resulted in the judge failing to take a material mitigating factor into account, with the consequence that the sentencing discretion miscarried.
The respondent accepted that the potential for deportation is a relevant sentencing consideration, however submitted that, in the circumstances, there was no error where this consideration was not relied on by the applicant before the sentencing judge. Further, the respondent submitted that no lesser sentence should be imposed on the applicant.
Analysis
It is convenient to deal first with Ground 2.
We note that no evidence was filed in support of Ground 2 to establish that the applicant is not a citizen of Australia or the impact that deportation would have on him.
In this case, the respondent accepted that the applicant is not an Australian citizen and did not object to submissions from counsel for the applicant that the applicant has no ties in the United Kingdom and that the prospect of deportation is a significant burden. It is possible to draw general conclusions on the likely impact of deportation of a person such as the applicant who has lived in Australia since he was 10 years old and has no apparent ties to the United Kingdom. We proceed on that basis.
The applicant is not a citizen of Australia. His ability to lawfully remain within Australia depends on him holding a visa granted to him under the Migration Act 1958 (Cth) (‘Migration Act’). In the event that he ceases to hold a visa, the Migration Act requires that he be detained in immigration detention pending his removal from Australia.[71]
[71]Migration Act (n 2) ss 503, 189, 198(2B).
Section 501 of the Migration Act provides the Minister with the power to cancel a visa on character grounds. Section 501(2) provides that the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the ‘character test’ and the person does not satisfy the Minister that he or she passes that test.
Section 501(6) provides the circumstances in which a person does not pass the character test, including if the person has a substantial criminal record. A substantial criminal record relevantly means that the person has been sentenced to death,[72] life imprisonment,[73] a term of imprisonment of 12 months or more[74] or where the person has been sentenced to two or more terms of imprisonment, where a total of those terms is 12 months or more.[75]
[72]Ibid s 501(7)(a).
[73]Ibid s 501(7)(b).
[74]Ibid s 501(7)(c).
[75]Ibid s 501(7)(d).
If the person does not pass the character test on the basis of ss 501(7)(a), (b) or (c), the discretion to cancel is converted into a duty on the Minister, who must cancel the visa if satisfied of that circumstance.[76] Relevantly, in the event a person in the position of the applicant is sentenced to a term of 12 months or more, the Minister must cancel the visa. Alternatively, if the person is sentenced to two or more terms of imprisonment that together amount to 12 months or more, the person fails the character test but the Minister retains a discretion as to whether or not to cancel the visa.
[76]Ibid s 501(3A)(a)(i).
Section 501(7A) provides that, for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms of imprisonment. To assist an understanding of that provision, the Migration Act supplies the example where a person is sentenced to two terms of three months’ imprisonment for two offences, to be served concurrently. For the purpose of the character test the total of those terms is six months’ imprisonment.
In addition to failing the character test based on specific sentences, a person may fail the character test if, having regard to their past and present criminal conduct or general conduct, the person is not of good character.[77]
[77]Ibid s 501(6)(c).
In the event that the a visa is mandatorily cancelled, the Minister retains the power to revoke the cancellation.[78] Unless the Minister does so, the visa remains cancelled and the person is required to be removed from Australia.[79]
[78]Ibid s 501CA(4).
[79]Ibid ss 501, 503, 198.
The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult.[80] Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.[81]
[80]Allouch (n 68) 9–10 [39].
[81]Ibid 10 [39].
In assessing, for the purposes of sentencing, the chance of deportation, it will be relevant to consider whether the sentence imposed would trigger a discretion, or alternatively a duty, to cancel the visa held by the offender.
Although the potential that an offender may be deported following sentence is a relevant consideration in sentencing in the way explained above, that potential cannot control or dictate the sentencing outcome. It would be an error for the sentencing judge to impose a sentence, that would otherwise not be appropriate, for the purpose of avoiding the operation of the Migration Act.
It is difficult to be critical of the judge for not taking the matter further, it having not been raised by the applicant, but it meant that a significant factor was not considered in formulating the appropriate sentence. This is not a case where the failure of the applicant to raise the matter before the sentencing judge should preclude him from raising it on appeal. There was no forensic reason not to raise it and we are satisfied that the failure to do so was a product of inadvertence. The failure to have regard to a significant relevant matter vitiates the sentence.
In the circumstances, we grant the applicant leave to appeal and allow the appeal. Accordingly, the applicant falls to be resentenced by this Court.
Ground 1
Given our conclusion that the failure to bring to account the risk of deportation into the sentencing process involves an error, requiring the applicant to be re-sentenced by this Court, it is not necessary to determine whether or not the sentence imposed fell wholly outside the permissible range so as to be manifestly excessive. However the submissions that were advanced by both parties on this ground are relevant to the sentence this Court should impose.
Re-sentence
In making our own assessment of the gravity of the blackmail offence, we would not accept the applicant’s submission that the offence was at the lowest end of the spectrum. Each of the matters advanced by the applicant must be taken into account, however, the conduct was a blatant attempt to extort money from the victim, immediately after his arrest for burglaries and thefts in the course of which he had obtained the keys he then used to extort money from the victim.
Blackmail is an inherently serious offence. The threatened harm may involve physical harm, threat to property (including property of another), embarrassment or shame. It is usually predicated on persuading the victim that compliance with the demands is likely to be less onerous than the consequences of refusing to meet the demands.
As Philipps CJ, Callaway and Batt JJA have remarked, the fear that the crime of blackmail often instils in the victim means that it is difficult to detect and insidious.[82] For that reason, where a victim comes forward, it is essential that they know that their courage to report the offence or give evidence will not be wasted and that the offenders will be appropriately punished.[83] These features mean that general deterrence is a very important sentencing consideration.
[82]Oksuz (n 60) 757–8 [113] (Kyrou JA), citing Vo (n 20) 4–6.
[83]Ibid.
There are a number of features of the offending which diminishes, to an extent, the gravity of the offence. As Winneke P said in R v Sun, ‘blackmail is a cowardly offence and invariably is aimed at those who are exposed and powerless to resist’.[84] Here, the threat was to the property of a third party, and there was scant material about the impact that it had on the victim other than that he had complied and made a payment in order to secure the keys. There does not seem to have been any significant inhibition on the part of Mr Freeland to report the offence. He had already identified the applicant in the CCTV footage. The offending was unsophisticated and, once reported, easily investigated and prosecuted.
[84][2004] VSCA 190, 9 [19].
Notwithstanding those factors that tend to mitigate against the seriousness of the offence, there are a number of features that point the other way. First, and most importantly, the applicant had been arrested the day before. Undeterred and brazenly, he sought to further profit from his crime. That behaviour reflects the pattern of defiance demonstrated by the applicant. Further, it is clear that the victim paid over the money in order to avoid the landlord looking to him to recover the substantial cost of replacing the locks on three buildings and the threats had the desired effect. As the judge correctly observed, specific deterrence was important.
The other offences were serious. The burglaries occurred using the access that the applicant had been given to the buildings in the course of his work. He stole from his co-workers. His offending constituted a significant breach of trust.
We accept, as did the judge, that the charges, other than blackmail, could have been dealt with in the Magistrates’ Court at the same time as unrelated offences. In effect, greater overall concurrency may then have occurred. It is necessary to take that into account. Before the sentencing judge, the applicant submitted that he should be given an extended CCO. That submission was not repeated before us, and the applicant accepted that a CCO alone would not be an appropriate disposition. We are satisfied that a CCO would not be appropriate and that it is necessary for the applicant to be sentenced to a term of imprisonment.
The applicant’s conduct reveals an arrogant disregard for the law and is consistent with the pattern that the applicant’s criminal history reveals, including disregarding intervention orders made by the court and his poor compliance with the CCO. We would endorse the judge’s conclusion that the applicant lacks insight into his offending conduct and that there is no basis to find any significant degree of genuine remorse.
We note that the applicant had been interviewed by the police and searched for the current offences in July 2016. However, he went on to offend, including offences of burglary and theft, between August 2016 and June 2017. This conduct formed the basis of the subsequent consolidated case.
The necessity that the applicant be sentenced to a term of imprisonment inevitably raises the prospect that the sentence might lead to the cancellation of the applicant’s visa and his removal from Australia. That constitutes a significant factor in sentencing because the applicant has lived in Australia since he was 10 years old, his children are in Australia and he has no relevant ties to the United Kingdom.
It follows that, during any period of incarceration, there will be the uncertainty as to his migration status and his ability to remain lawfully in Australia. That is likely to weigh heavily upon him during any term of imprisonment.
Nevertheless, the offending is serious and we are satisfied that a term of imprisonment is inevitable. We would re-sentence the applicant to 12 months’ imprisonment for the blackmail charge (reduced from 18 months’ imprisonment). In our view, with one exception, the other sentences are appropriate and we would confirm them. The exception is to Charge 11, we would reduce the term to 12 months.
We have had regard to the principle of totality and agree with the judge that it is appropriate to impose an aggregate sentence of imprisonment on Charges 2, 4, 5, 6, 7, 8, 9 and 10 as they are founded on the same facts and form part of a series of offences of similar conduct. We would also modify the degree of cumulation as set out below.
We would re-sentence the applicant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation
1 Burglary [Crimes Act 1958 s 76(1)] 10 years 12 months’ imprisonment 4 months 2 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment
(aggregate sentence for Charges 2, 4, 5, 6, 7, 8. 9 and 10)2 months 3 Theft [Crimes Act 1958 s 74] 10 years
4 months’ imprisonment 1 month 4 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 5 Attempt to obtain property by deception [Crimes Act 1958 ss 81 and 321M] 5 years See Charge 2 6 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 7 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 8 Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 9
Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 10
Obtain property by deception [Crimes Act 1958 s 81] 10 years See Charge 2 11 Burglary [Crimes Act 1958 s 76(1)] 10 years 12 months’ imprisonment 4 months 12 Theft [Crimes Act 1958 s 74] 10 years 6 months’ imprisonment 1 months 13 Blackmail [Crimes Act 1958s 87] 15 years 12 months’ imprisonment Base 14 Obtain property by deception [Crimes Act 1958 s 81] 10 years 3 days’ imprisonment Nil Total Effective Sentence: 2 years’ imprisonment Non-Parole Period: 12 months
Accordingly, we would re-sentence the applicant to a total effective sentence of two years’ imprisonment with a non-parole period of 12 months.
Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the applicant's plea of guilty, we would have sentenced him to a total effective sentence of three years and six months’ imprisonment with a non-parole period of two years.
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