Lord v The Queen
[2018] VSCA 52
•7 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0051
S APCR 2017 0054
| DWAYNE MICHAEL LORD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 February 2018 |
| DATE OF JUDGMENT: | 7 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 52 |
| JUDGMENT APPEALED FROM: | DPP v Lord (Unreported, County Court of Victoria, Judge Gucciardo, 19 December 2014) DPP v Lord (Unreported, County Court of Victoria, Judge Quin, 6 March 2017) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery (2), false imprisonment (2), burglary (2), handling stolen goods (2) – Offending while on parole – Cancellation of parole – Parole sentence of 14 months served before sentence – Totality – Whether parole sentence taken into account – Whether sentence manifestly excessive – Serious instances of armed robbery – Presumption of cumulation – Prior convictions – Parity – Co-offender gave evidence – Discount for co-operation – Whether sentencing differential justified – No error – Leave to appeal refused.
PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Consideration by single judge on papers – Leave refused – Written reasons given – Election to renew application – Need for proper basis for renewal – Criminal Procedure Act 2009 s 315(2) – Supreme Court (Criminal Procedure) Rules 2008 r 2.08.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald | Dr Martine Marich and Associates |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA:
Summary
The applicant sought leave to appeal against sentences respectively imposed on him by Judge Gucciardo in December 2014 and by Judge Quin in March 2017. He did not seek an oral hearing of his application and, on 11 July 2017, Priest JA refused leave to appeal on all grounds. His Honour gave lengthy written reasons for the refusal of leave.
As the applicant is entitled to do under the Criminal Procedure Act2009 (‘CP Act’) and the Supreme Court (Criminal Procedure) Rules 2008 (‘Rules’), he has renewed his application for leave.[1] For reasons which follow, we would likewise refuse leave to appeal on all grounds, for reasons very similar to those given by Priest JA.
[1]CP Act s 315(2); Rules r 2.08.
Although the issues in the case are themselves unremarkable, three matters of general importance arose in the course of argument. The first concerns the right of election. Section 315(2) of the CP Act entitles a person in the applicant’s position, whose application for leave has been considered by one judge of appeal and refused, to elect to renew the application before a different bench. Since the right of election was introduced, the number of applicants seeking a hearing in the first instance has dropped substantially, which has in turn reduced cost and improved timeliness in criminal appeals.[2]
[2]In 2016–17, 73 per cent of applications for leave to appeal against sentence were dealt with, in the first instance, by a single judge on the papers.
The availability of the right of election is an important part of the scheme of criminal appeals. But where, as here, a judge of this Court concludes that the proposed grounds of appeal are not reasonably arguable, and has given written reasons for that conclusion, those advising the applicant must give careful consideration to whether there is a proper basis for renewing the application. A renewal entitles the applicant to a hearing de novo. It is not an appeal from the single judge. But, as this Court has repeatedly pointed out, the carefully expressed reasons of a judge of this Court will ordinarily be given considerable weight.[3]
[3]Booysen v The Queen [2014] VSCA 150 [9]; Ayol v The Queen [2014] VSCA 151 [14]; Mifsud v The Queen [2014] VSCA 160 [16]; Booth v The Queen [2015] VSCA 51 [121]–[123]; Sadrani v The Queen [2015] VSCA 202 [5]–[8].
Unless an applicant can identify some quite significant matter which the leave judge has misunderstood or overlooked, it is always going to be difficult to persuade the renewal bench to come to a different conclusion. If we may say so respectfully, there was nothing about the reasons given by Priest JA which suggested the possibility of a different outcome on renewal. On the contrary, his Honour’s reasons were clear, cogent and comprehensive.
The second matter concerns the nature of appellate review of a sentence where no specific error is alleged. As will appear, the applicant variously advanced complaints of manifest excess and infringement of the principles of totality and parity respectively. In the course of argument, however, counsel for the applicant properly conceded that each of those complaints converged into a single question, namely, whether it was reasonably open to the judge, in the circumstances of the case, to impose the sentence which he/she did if proper weight were given to:
(a)the relevant circumstances of the offending and the offender;
(b)the principle of totality; and
(c)the relevant similarities and differences between the position of the offender and that of the co-offender.[4]
[4]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (manifest excess); R v Mangelen (2009) 23 VR 692, 698 [32] (parole cancellation and totality); Teng v The Queen (2009) 22 VR 706, 710 [17] quoting R v Wolfe [2008] VSCA 284 [9] (parity).
Counsel for the applicant also properly conceded that, absent any mis-statement of the facts or failure to take into account a relevant consideration, the only means by which this Court can decide the ‘reasonably open’ question is by looking at the sentence actually imposed. The sentence expresses the judge’s evaluation and synthesis of all the relevant facts and circumstances, informed by the applicable sentencing principles.
If the Court concluded that it was not reasonably open to the judge to impose the sentence under review, it might be inferred that the judge had given inappropriate weight (whether too much or too little) to one or more relevant factors. But rarely, if ever, will it be necessary — or possible — for the appeal court to reach a definite conclusion on that question.[5]
[5]DPP v Terrick (2009) 24 VR 457, 459–60 [5].
Thirdly, and finally, the sentences imposed on this applicant raise what appears to be a serious question of inadequate sentencing for armed robbery. As will appear, the applicant was sentenced for two separate armed robbery offences. On the first occasion, he pleaded not guilty and, after conviction at trial, was sentenced to six years’ imprisonment. On the second occasion, he pleaded guilty and was sentenced to five years’ imprisonment.[6]
[6]See [12] below.
Counsel for the Director submitted that these were ‘extremely serious’ armed robberies, as they plainly were. That being so, substantially higher sentences would have been expected, given that:
(a) the maximum penalty is 25 years’ imprisonment;
(b) the applicant had prior convictions for armed robbery and other offences of violence; and
(c) the offending on both occasions was a breach of his parole.
Questioned by the bench, however, counsel for the Director said that he was not aware that any consideration had been given to a Director’s appeal against either sentence.
Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed. As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of the first importance to public confidence in the criminal justice system.[7] It is to be assumed that the Director will take an early opportunity to bring an appeal to this Court which will enable proper sentencing standards to be set for this offence.
[7]See, eg, DPP v DDJ (2009) 22 VR 444, 461 [71]–[72].
Procedural history
On 14 October 2014, the applicant was convicted in the County Court of one charge of armed robbery and one charge of false imprisonment. On 5 December 2014, he pleaded guilty to one charge of trafficking in a drug of dependence, two charges of burglary, one charge of theft and one charge of handling stolen goods. Following a plea hearing, on 19 December 2014 Judge Gucciardo sentenced the applicant as follows:[8]
[8]DPP v Lord (Unreported, County Court of Victoria, Judge Gucciardo, 19 December 2014) (‘First Sentencing Reasons’).
Charge on
Indictment
C1308985.2Offence Maximum Sentence Cumulation 1 Armed robbery
s 75A(1) Crimes Act 195825y 6y Base 2 False imprisonment
Common law10y 12m Nil Charge on
Indictment
C1308985.31 Trafficking in a drug of dependence
s 71AC Drugs Poisons and Controlled Substances Act 1981
15y 3y 6m 1y 2 Burglary
s 76(1) Crimes Act 195810y 15m 2m 3 Theft
s 74 Crimes Act 195810y 9m Nil 4 Handling stolen goods
s 88(1) Crimes Act 195815m 12m 1m 5 Burglary
s 76(1) Crimes Act 195810y 20m 3m Total Effective Sentence: 7y 6m Non parole period: 4y 6m s 6AAA declaration: But for the plea of guilty, a total effective sentence of 8y 6m with a non-parole period of 6y would have been imposed Pre-sentence detention declared: 54 days
On 22 February 2017, the applicant pleaded guilty in the County Court to a further charge of armed robbery and a further charge of false imprisonment. Following a plea hearing, on 6 March 2017, Judge Quin sentenced the applicant as follows:[9]
[9]DPP v Lord (Unreported, County Court of Victoria, Judge Quin, 6 March 2017) (‘Second Sentencing Reasons’).
Charge on
Indictment
F12765543Offence Maximum Sentence Cumulation 1 Armed robbery
s 75A(1) Crimes Act 195825y 5y Base 2 False imprisonment
Common law
10y
s 320 Crimes Act 195818m N/A Total Effective Sentence: 5y, of which 2y 6m is cumulative on sentence currently being served New non parole period: 6y 6m s 6AAA declaration: But for the plea of guilty, a total effective sentence of 7y with a non-parole period of 5y would have been imposed Pre-sentence detention declared: 53 days
As already mentioned, the applicant filed notices of applications for leave to appeal against the sentences imposed upon him. The proposed grounds of appeal in respect of Judge Gucciardo’s sentence were as follows:
1. The sentencing judge erred in:
(a)failing to adequately take into account the fact that the applicant’s parole had been cancelled shortly after he was arrested; and
(b)failing to adequately apply the principle of totality.
2.The sentencing judge erred in sentencing the applicant on an incorrect factual basis.
3.The sentences and non-parole period imposed are manifestly excessive.
4.The sentences imposed result in an unjustifiable disparity with the sentence imposed on co-accused [AB].
The proposed grounds of appeal in relation to Judge Quin’s sentence were as follows:
1. The sentencing judge erred in:
(a) misapplying the principle of totality; and
(b)making orders for cumulation and a new non-parole period which were manifestly excessive.
2.The sentences and non-parole period imposed are manifestly excessive.
3.The sentences imposed result in an unjustifiable disparity with the sentence imposed on co-accused [AB].
In respect of each of the grounds asserting manifest excess, the applicant provided identical particulars as follows:
(a)the sentences and non-parole period have the effect that the period which the applicant is required to spend in custody between his arrest and:
(i)eligibility for parole; and
(ii)the expiration of his sentence
is manifestly excessive.
(b)insufficient weight was given to:
(i)the applicant’s plea of guilty and remorse;
(ii)the applicant’s prospects of rehabilitation;
(iii)the effect on the applicant of the prospect of deportation; and
(iv)totality considerations arising from the cancellation of the applicant’s parole.
On 11 July 2017, Priest JA refused the applicant’s applications for leave to appeal.[10] Pursuant to s 315(2) of the CP Act, the applicant has elected to renew his applications. The applicant has, however, abandoned proposed ground 2 in relation to the sentence imposed upon him by Judge Gucciardo.
[10]Lord v The Queen (Unreported, Court of Appeal, Priest JA, 11 July 2017) (‘Leave Reasons’).
Circumstances of the offending
The applicant was sentenced on three indictments, the first two by Judge Gucciardo and the third by Judge Quin. The first indictment (C1308985.2) related to offending on 23 June 2012. The second indictment (C1308985.3) related to offences committed between 18 December 2012 and 11 January 2013. The third indictment (F12765543) related to offending on 7 October 2012. In brief summary, the facts of the applicant’s offending were as follows.
Armed robbery and false imprisonment: first indictment
The prosecution case was that the applicant and AB had acted in concert to rob a TAB agency at Mentone on 23 June 2012 (the ‘Mentone armed robbery’). Each offender wore gloves and balaclavas, and they were equipped with duct tape, a bag and a metal tool. They lay in wait in bushes near the entrance to the TAB premises and, shortly before midnight, seized the agency’s duty manager, Ms Melissa Hathaway, as she was leaving work. The offenders forced Ms Hathaway to re-enter the agency. Once inside, they forced her to open a safe containing cash. The safe had a 15-minute time delay security mechanism, so that Ms Hathaway was forced to remain whilst waiting for the safe to open. At the conclusion of the 15-minute security delay the opening of the safe was further delayed when one of the offenders accidentally caused the timing mechanism to reset. Although the offenders had intentionally damaged a security camera, their activities were nonetheless recorded by CCTV cameras.
One of the offenders obtained a roll of clear adhesive tape and a kitchen knife and informed Ms Hathaway that she was to be tied up. Ms Hathaway protested that if this were done, she would not be released until the morning. As a result, the adhesive tape was not used. Police located a roll of opaque duct tape at the premises. DNA consistent with that of the applicant was found on the tape.
Approximately $70,000 cash was removed from the safe. It was placed in the bag brought by the offenders. The offenders initially left the premises without the bag, but then smashed a glass door to re-enter and retrieve it before fleeing.
Trafficking in a drug of dependence and other offences: second indictment
Between 18 December 2012 and 11 January 2013, the applicant trafficked MDMA and methylamphetamine. The applicant’s trafficking business was revealed by intercepted telephone communications. Police executed a search warrant at the applicant’s residence on 11 January 2013, and seized plastic snap-lock bags, digital scales, 1.1 grams of a powder containing methylamphetamine and 4.9 grams of tablets containing MDMA (charge 1 – trafficking in a drug of dependence).
On 29 December 2012, the applicant and AB broke into a home in Wantirna South (charge 2 – burglary). The homeowner, whom the applicant knew, had told the applicant on 26 December 2012 that he was going on holidays. The property stolen included a computer, two cameras, an Apple iPad and assorted jewellery (charge 3 – theft).
On or about 30 December 2012, a home was broken into in Pakenham and property including a 32-inch Samsung television and an Apple laptop computer were stolen. The applicant was in telephone contact with the person who committed the burglary. He met with that person later and took possession of the Samsung television and laptop computer, which were seized when police executed a search warrant at the applicant’s residence on 11 January 2013 (charge 4 – handling stolen goods).
A burglary was committed by AB and another at the applicant’s ex-partner’s residence on 2 January 2013. At about 3.00 am, the applicant’s ex-partner, Ms Shivonne Cassidy, was asleep in her home in Maryknoll, when AB and another person gained entry through a window. The applicant had been in contact with them before the entry and had directed them to the property. Ms Cassidy awoke when the intruders entered her bedroom. She screamed and the intruders fled. The applicant was charged on the basis of joint criminal enterprise (charge 5 – burglary).
Armed robbery and false imprisonment: third indictment
The charges on the third indictment related to an armed robbery of a TAB in Braybrook (the ‘Braybrook armed robbery’). The Braybrook armed robbery was committed after the Mentone armed robbery, but before the offending the subject of the second indictment. The circumstances of the Braybrook armed robbery were similar to the circumstances of the Mentone armed robbery.
On Sunday 7 October 2012, the applicant and AB drove to the Central West Plaza carpark near the Braybrook TAB. They waited for the TAB to shut and for its only employee on the premises, Ms Sharon Allen, to leave. She ultimately left at about 9:50 pm, having locked both doors and activated the alarm.
The applicant and AB were both disguised, wearing dark blue overalls, black boots, black gloves and black beanies with material covering their mouths and noses.
When Ms Allen opened the door of her car, she was accosted by the applicant with a gun. The applicant yelled at her to get in the front passenger seat. Ms Allen asked the applicant not to hurt her, and told him that she suffered from panic attacks. The applicant told her to put her head down and to give him the keys and security code for the TAB. AB got into the back seat of Ms Allen’s car. AB remained in the car with Ms Allen while the applicant went to the TAB to disable the alarm. The applicant returned about a minute later, accusing Ms Allen of giving him the wrong code. The applicant then directed Ms Allen to go with him and AB into the TAB. Ms Allen was taken into the TAB where she disabled the alarm system.
The applicant told Ms Allen to open the safe. The safe had a 15-minute time delay. While waiting for the safe to unlock, the applicant and AB commenced stealing various amounts of money from other areas in the TAB.
At the conclusion of the countdown timer, Ms Allen unlocked the safe. The applicant and AB removed approximately $76,000 from the safe. The applicant then directed Ms Allen to show him to the courtyard area where he placed a table to use as a step to get over the fence. Subsequently, Ms Allen was directed back outside to the courtyard and made to sit on a chair. The applicant went back inside the premises where he obtained the CCTV recording hard drive. Ms Allen was then told to wait five minutes before calling the police. The applicant and AB then jumped over the fence and left the scene.
On 22 July 2015, after the applicant had been sentenced by Judge Gucciardo on the first two indictments, the applicant was charged on the third indictment with the offences of armed robbery and false imprisonment.
Applicant’s background
The applicant was born in New Zealand and came to Australia as a young child. He was 46 years of age at the time of his offending, 48 years of age when he was sentenced by Judge Gucciardo and 50 years of age when he was sentenced by Judge Quin.
The applicant’s mother died when he was very young, and this impacted on his education and behaviour as a young adult.[11] The applicant attended school until year 11, before completing a four-year motor mechanic apprenticeship.
[11]Second Sentencing Reasons [19].
In 1999, the applicant married. He subsequently had two children, but separated from his wife five years after they were married. He later commenced a new relationship with a woman who had two children of her own, and they lived as a family from 2009.
The applicant has prior convictions going back to 1984. These include convictions for armed robbery, attempted armed robbery, robbery, recklessly causing serious injury, intentionally or recklessly causing injury, using a firearm to resist arrest, burglary, criminal damage, theft, sexual penetration of a child under 16 years, making child pornography and trafficking amphetamine.
On 28 November 2016, the applicant was convicted of armed robbery and sentenced to a term of imprisonment of four years and nine months. This sentence was made concurrent with a sentence the applicant was then serving, and a new non-parole period of three years was fixed. On 18 November 2010, the applicant was sentenced to an aggregate prison term of four months for drug and driving offences, cumulative on the then uncompleted term owed to the Parole Board referable to the 2006 sentence for armed robbery.
On 11 January 2013, the applicant was arrested and charged with the offences on Indictment C13008985.3. The applicant was taken into custody. While he was interviewed in relation to the Mentone armed robbery, at that time no charges were laid against the applicant in respect of that matter.
On 14 January 2013, the applicant’s parole referable to the sentence imposed on him on 28 November 2006 was cancelled. As a result, the applicant was then required to serve the unexpired portion of the sentence previously imposed — namely one year, nine months and 16 days. The applicant served this term in prison from 14 January 2013 to 29 October 2014. The applicant then remained in custody until being sentenced by Judge Gucciardo on 19 December 2014, and then subsequently by Judge Quin on 6 March 2017.
As was observed by both sentencing judges, when not incarcerated, the applicant had a good work history in hotels which he both owned and managed.[12] More recently, the applicant has held positions of trust while in custody, acting as a disability mentor for prisoners with a cognitive impairment, and as a ‘peer educator’.[13]
[12]First Sentencing Reasons [56]; Second Sentencing Reasons [23].
[13]First Sentencing Reasons [48]–[50]; Second Sentencing Reasons [42]–[43].
The co-offender
In October 2014, AB was convicted by a jury of armed robbery and false imprisonment for his involvement in the Mentone armed robbery. Following his conviction, AB agreed to co-operate with the authorities and to give evidence against the applicant at the applicant’s trial for the Mentone armed robbery. AB then gave evidence against the applicant in relation to the Mentone armed robbery and, as we have noted, the applicant was convicted of that armed robbery and the related charge of false imprisonment. In sentencing AB, on 5 February 2015,[14] Judge Gucciardo described AB’s evidence at the applicant’s trial as ‘no doubt a vital lynchpin in his conviction’.[15]
[14]DPP v [AB] (Unreported, County Court of Victoria, Judge Gucciardo, 5 February 2015) (‘AB’s Sentencing Reasons’).
[15]Ibid [11].
In addition to giving evidence against the applicant, AB also co-operated with the authorities in relation to the burglaries committed on 29 December 2012 and 2 January 2013 (charges 2, 3 and 5 on the applicant’s second indictment) and in relation to the Braybrook armed robbery.
After the applicant was convicted on the first indictment in relation to the Mentone armed robbery, the applicant pleaded guilty to the charges on the second indictment — including those relating to the burglaries committed on 29 December 2012 and 2 January 2013. Subsequently, the applicant pleaded guilty to the charges on the third indictment in relation to the Braybrook armed robbery.
As we have already observed, on 5 February 2015, Judge Gucciardo sentenced AB in relation to the Mentone armed robbery, the Braybrook armed robbery and the burglaries committed on 29 December 2012 and 2 January 2013. AB was sentenced as follows:
Mentone armed robbery indictment Offence Penalty Cumulation Armed robbery (Mentone armed robbery) 3y 6m Base False imprisonment 9m Nil Braybrook armed robbery indictment Armed robbery (Braybrook armed robbery) 3y 6m False imprisonment 9m Nil Burglary indictment Burglary (committed 29 December 2012) 18m 6m Theft 6m Nil Burglary (committed 2 January 2013) 24m 6m Total effective sentence 4y 6m Non-parole period 2y 3m
In sentencing AB, Judge Gucciardo described the assistance given by AB to the authorities and said that he accepted that the assistance given by AB was ‘a genuine attempt to clear [his] conscience and attempt to rehabilitate [himself] towards a new life’.[16] His Honour also described the fact that AB had to endure being locked down for over 21 hours a day since providing statements, and that AB had been punched and spat upon and had hot water poured on him while in custody.[17]
[16]AB’s Sentencing Reasons [46].
[17]Ibid [51].
Like the applicant, AB had a prior criminal history. AB’s criminal history, however, was significantly less extensive than the applicant’s. AB’s criminal history included prior convictions for burglary, theft, assault with a weapon, threatening to inflict serious injury, altering a firearm, possessing a controlled weapon without excuse and handling stolen goods. Unlike the applicant, however, AB did not have any prior convictions for armed robbery, attempted armed robbery or robbery.
The applicant’s contentions
The applicant’s complaints about the sentences may broadly be described under three headings: totality;[18] parity;[19] and manifest excess.[20] Under the heading of totality, the applicant makes complaint about an alleged failure by both judges to properly consider the time he spent in custody between 14 January 2013 and 29 October 2014, when he was required to serve the unexpired portion of the sentence imposed upon him on 28 November 2006 (the ‘November 2006 sentence’). The applicant also submits that account was required to be taken of all of the time he spent in custody for the offending that led to the November 2006 sentence — offending which was said to be ‘similar’ to the offending for which he fell to be sentenced in December 2014.
[18]Proposed ground 1 in relation to Judge Gucciardo’s sentence and proposed ground 1(a) in relation to Judge Quin’s sentence.
[19]Proposed ground 4 in relation to Judge Gucciardo’s sentence and proposed ground 3 in relation to Judge Quin’s sentence.
[20]Proposed ground 3 in relation to Judge Gucciardo’s sentence and proposed grounds 1(b) and 2 in relation to Judge Quin’s sentence.
Under the heading of parity, the applicant contends that there is an unjustified disparity between the sentences imposed upon him and AB respectively for the Mentone armed robbery and the Braybrook armed robbery, and also between the respective total effective sentences and non-parole periods.
The applicant points out that his ‘global sentence’ is 10 years with a non-parole period of six years and six months, whereas AB received a total effective sentence of four years and six months with a non-parole period of two years and three months. The applicant contends that the disparity between the sentences is accentuated when account is taken of the cancellation of his parole after his arrest on 11 January 2013. It is submitted that the addition of the cancelled parole period means a total time spent in custody of 11 years and nine months, with a period of more than eight years and three months before the applicant can become eligible for parole.
Putting the cancelled parole period to one side, and also ignoring any totality issue created by the imposition of the 2006 sentence, the applicant also contended that:
(1)his total non-parole period (six years and six months) is nearly three times as long as that fixed in AB’s case.
(2)the cumulation of sentence for the Braybrook armed robbery for the applicant (two years and six months) is five times the cumulation in AB’s case (six months).
Each of these differences is said to reveal impermissible disparity between the sentences imposed upon the applicant and upon AB. Specifically, it is said, the discrepancy is too wide to be justified by AB’s co-operation and assistance.
The applicant next contends that both sentences are manifestly excessive. He relies upon his submissions with respect to totality; his detention in custody between 14 January 2013 and 29 October 2014; his pleas of guilty in relation to the second and third indictments; remorse; his prospects of rehabilitation; and the effect on him of the prospect of his deportation once he is released from custody.
The submissions on totality are directed at the period of time the applicant served in custody between 14 January 2013 and 29 October 2014 (the ‘parole sentence’). It is said that the time served under the parole sentence was not adequately taken into account by Judge Gucciardo and that, in any event, both sentencing judges failed to correctly apply the principle of totality.[21]
[21]As to parole sentences and totality, see R v Hunter (2006) 14 VR 336; Waugh v The Queen [2013] VSCA 36.
Totality
In sentencing the applicant, Judge Gucciardo noted that the applicant’s plea to the offences on the second indictment was not an early plea and was probably motivated in part by the late co-operation offered by AB. As Judge Gucciardo put it, the applicant’s plea became inevitable following AB’s co-operation.[22] The judge did, however, accept that there were matters on the second indictment to which the applicant pleaded out of a desire on his part to ‘finally accept responsibility’ for his offending.[23] The judge accepted that that plea had a utilitarian value and was accompanied by some regret. The judge was, however, unable to find any clear evidence of remorse.[24]
[22]First Sentencing Reasons [39].
[23]Ibid [40].
[24]Ibid [41].
In relation to the Mentone armed robbery, Judge Gucciardo considered that the applicant was ‘the instigator and organiser and main protagonist of that criminal enterprise’.[25] The judge then referred to the applicant’s extensive prior convictions, before concluding that the applicant was ‘probably a recidivist from whom the community rightly seeks protection’.[26]
[25]Ibid [42].
[26]Ibid [46].
After referring to various references, Judge Gucciardo then referred to the parole time, saying that the applicant had only had ‘about 20 months in the community over the last few years’ and had been ‘in effect in custody since about 2012’.[27] The judge’s declaration of the pre-sentence detention of 54 days[28] further supports the proposition that the judge was well aware of the parole time and the totality issue created by its existence. Moreover, in sentencing the applicant, the judge expressly stated that he took into account the principle of totality.[29]
[27]Ibid [52].
[28]Erroneously referred to as 53 days in the First Sentencing Reasons at [53], but corrected at [67].
[29]First Sentencing Reasons [51].
In our view, the contentions that Judge Gucciardo failed to take into account the parole period or the principle of totality are without substance. The matters were expressly taken into account by his Honour in his reasons for sentence. Moreover, there is nothing in the individual sentences, the orders for cumulation, the total effective sentence or the non-parole period that is suggestive of any failure to take these matters into account.
The Mentone armed robbery was a serious example of a very serious crime. The crime was committed by an offender with a very significant and poor criminal history including prior convictions for armed robbery, attempted armed robbery and robbery. Notwithstanding the requirement for the applicant to serve the parole period before being sentenced by Judge Gucciardo, the sentence for armed robbery (following a trial) could only be described as moderate.
Similarly, the sentences imposed on the second indictment, resulting in a cumulation of an additional 18 months for offending including two burglaries and a charge of trafficking in a drug of dependence, were also moderate. The imposition of the sentences on the second indictment do not bespeak any totality error.
While Judge Quin sentenced the applicant to five years’ imprisonment in respect of the Braybrook armed robbery, she only cumulated two years and six months on the sentences imposed by Judge Gucciardo. Judge Quin’s sentence resulted in the applicant’s non-parole period being increased by two years because of the Braybrook armed robbery.
In sentencing the applicant, Judge Quin made two express references to the issue of totality.[30] Her Honour said that totality was relevant to the sentence she had to impose ‘particularly given the very similar nature of the offending relating to the Mentone armed robbery’.[31] Her Honour then said:
The maximum penalty for armed robbery demonstrates the need to impose condign punishment and community denunciation. General deterrence is also an important sentencing consideration.
Given your very significant history, particularly that this is now your third armed robbery conviction, specific deterrence has a significant role to play.
These sentencing considerations must be balanced with your personal circumstances, plea of guilty and principles of totality.[32]
[30]Second Sentencing Reasons [47], [52].
[31]Ibid [47].
[32]Ibid [50]–[52].
The Braybrook armed robbery was, like the Mentone armed robbery, a serious example of a very serious crime. From her Honour’s reasons for sentence, it cannot reasonably be submitted that Judge Quin did not have regard to the principle of totality. Moreover, like Judge Gucciardo’s sentence, there is nothing in Judge Quin’s sentence to suggest that any totality error was made by her Honour. The applicant’s totality complaints are not reasonably arguable.
Parity
The principles governing parity are well established.[33] As was said in Collins v The Queen:
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.[34]
[33]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharpv The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]–[25]; Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’).
[34]Collins [2015] VSCA 106 [23] (citations omitted).
In Hilder v The Queen,[35] Maxwell ACJ identified ‘the true nature of the question which must be addressed when the ground of parity is advanced’ as being ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co-offenders in the way that he or she did’.[36] His Honour went on to say that there was a ‘close analogy with the stringency of the test of manifest excess’, and then said that, for a parity ground to succeed, ‘it must be shown that the conclusion as to sentence differentials was not reasonably open’.[37]
[35][2011] VSCA 192 (‘Hilder’).
[36]Ibid [37].
[37]Ibid [38]; Collins [2015] VSCA 106 [23].
More recently, in Ryan v The Queen, Weinberg, Whelan and Priest JJA said:
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.[38]
[38]Ryan [2016] VSCA 255 [42].
As we have already noted, the applicant makes parity complaints at a number of levels:
(1)The applicant’s total effective sentence after being sentenced by Judge Quin was 10 years, whereas AB’s total effective sentence was four years and six months.
(2)The applicant’s total non-parole period was six years and six months, whereas AB received a non-parole period of two years and three months.
(3)The differences identified in (1) and (2) were accentuated by the applicant being required to serve the parole time following his arrest in January 2013.
(4)The cumulation ordered in respect of the applicant’s participation in the Braybrook armed robbery was five times the amount of cumulation ordered by AB in respect of his participation in the Braybrook armed robbery.
The arithmetical comparisons which the applicant seeks to make do not assist in the resolution of the parity question. First, one cannot simply add the parole time to the sentences imposed by Judge Gucciardo and Judge Quin on the applicant so as to make a new total effective sentence imposed by those judges. Secondly, the total effective sentence resulting from Judge Gucciardo’s and Judge Quin’s sentences contains a period of 12 months’ cumulation for trafficking in a drug of dependence — an offence which involved the applicant but not AB.
The real parity issue in this case concerns a comparison between the applicant’s total effective sentence of nine years (six years and six months on the first and second indictments, minus the one year cumulation for trafficking, upon which two years and six months was cumulated by Judge Quin) with the sentence of four years and six months’ imposed on AB. That comparison must be looked at in all the circumstances of both cases — including the fact that the applicant was required to serve the parole time and other time in custody as a result of the 2006 sentence. Some comparison must also be made between the non-parole periods imposed on the applicant and AB (but again remembering that the applicant’s non-parole period attaches to a total effective sentence that contains a sentence for drug trafficking).
The respondent submitted that neither sentencing judge made any parity error. In support of that submission, the respondent contended that the following factors differentiated the applicant’s position from AB’s position:
·as to the armed robberies and burglaries, the applicant was the instigator, organiser and leader of the ‘criminal expedition’, AB’s role generally being that of assistant;
·with respect to the Mentone armed robbery, the applicant retained $52,000 of the $70,000 that was stolen, AB receiving $18,000;
·AB gave evidence at the applicant’s trial for the Mentone armed robbery, for which he was entitled to a substantial discount on sentence;
·AB also made statements against the applicant and gave undertakings to give evidence against him in respect of the offending on the second indictment and the Braybrook armed robbery, again entitling him to a very substantial discount on his own sentence;
·the applicant had a far more serious criminal history than AB, he having previously been sentenced to terms of imprisonment of four years and nine months for armed robbery and three years and three months for attempted armed robbery (AB having no prior history of armed robberies, he however having been sentenced to comparatively smaller sentences of imprisonment for burglaries and related types of offending);
·the applicant was initially prepared to stand trial on the second indictment, only pleading guilty at a late stage after AB made statements against him in respect of all his offending;
·there was little, if any, remorse attached either to the applicant’s pleas of guilty or more generally, whereas AB showed a level of remorse by his assistance to the authorities;
·the applicant was found to have poor prospects of rehabilitation;
·community protection ‘loomed particularly large’ in sentencing the applicant, since much of the offending was at his behest rather than AB’s; and
·specific deterrence was particularly relevant to the sentence imposed on the applicant, as he had now been sentenced to imprisonment for a total of three armed robberies and one attempted armed robbery.
There have been many cases concerning the appropriate discount to be given to offenders who co-operate and give evidence against their co-accused. As Judge Gucciardo observed when sentencing AB, there are adverse consequences in custody for those who give evidence against other offenders. There is no necessarily correct discount to be given in relation to co-operation, but discounts of up to 50 per cent and even a little more are not unheard of.[39]
[39]See R vJohnston [2008] VSCA 133 [18] (Nettle JA). See also, R v Perrier [No 2] [1991] 2 VR 717, 726.
The co-operation given by AB in giving evidence against the applicant was very significant. As Judge Gucciardo described it, it was a ‘vital lynchpin’ in the applicant’s conviction on the first indictment and undoubtedly led the applicant into pleading guilty to the charges on the second and third indictments. AB’s co-operation had for him the detrimental effects described by Judge Gucciardo when he sentenced AB.
Contrary to the applicant’s submission, we see no basis for the contention that the discrepancy between the sentences imposed was ‘too wide to be justified by [AB’s] co-operation and assistance’. In our view, the different sentences were well justified by AB’s co-operation alone. Moreover, when one looks at the other differences between the applicant and AB (such as role in the offending and different prior criminal histories) the imposition of different sentences on the applicant and AB cannot be impeached.
Manifest excess
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether it was reasonably open to the judge in the circumstances of the case to impose the sentence which he/she did.[40]
[40]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
In refusing leave to appeal on the grounds of manifest excess, Priest JA dealt with the applicant’s arguments as follows:
The judge [Judge Gucciardo] was satisfied that ‘the evidence was indicative of some remorse’, but found that it was ‘limited’ given the nature of the applicant’s record of interview, the contested committal and the manner in which the proceedings had been conducted.
Both sentencing judges, the respondent submitted, regarded the applicant’s prospects of rehabilitation as poor. At the time of the first sentence, the applicant had a prior criminal record that spanned more than twenty years, during which time ‘he had offended in very serious ways on numerous occasions’. Notwithstanding that the applicant had been sentenced to significant terms of imprisonment on a number of occasions, however, ‘he continued to re-offend by committing very serious offences in a deliberate and brazen fashion’.
With respect to the prospect of deportation, the respondent submitted that it was not raised before Judge Gucciardo, but that Judge Quin paid proper regard to it. Thus, in her sentencing remarks, her Honour said:
At the completion of your term of imprisonment you face the prospect of deportation. You are a permanent resident in Australia, having migrated here when you were aged two and having lived here all your life. All of your family, connections and friends are in this country and you have no ties or links with New Zealand. I accept the prospect of your deportation, having established your life in this country, will render your incarceration more burdensome.
In my opinion, both sentencing judges gave appropriate weight to the specific sentencing considerations referred to in the applicant’s written case. The individual and total effective sentences imposed were well within the range of those properly open when due regard is had to the very serious nature of the applicant’s offending and the matters personal to him (including his relevant and extensive criminal history). Moreover, as I have said earlier in these reasons, the sentences imposed reflect adherence to the principle of totality, and include consideration of the cancellation of the applicant’s parole.
In my view, leave to appeal should be refused on these grounds [of manifest excess] since they are not reasonably arguable.[41]
[41]Leave Reasons [58]–[62].
Having analysed the material for ourselves, our view accords entirely with the views of Priest JA set out above. In the result, it would be mere supererogation to say more than that there is no merit in the applicant’s assertions that any of the sentences imposed upon him were manifestly excessive.
Conclusion
The applicant’s proposed grounds of appeal are not reasonably arguable. Leave to appeal must therefore be refused.
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