Makieng v The Queen
[2022] VSCA 52
•5 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0047
| PATREES MAKIENG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 March 2022 |
| DATE OF JUDGMENT: | 5 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 52 |
| JUDGMENT APPEALED FROM: | DPP v Makieng [2020] VCC 2081 (Judge Doyle) |
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CRIMINAL LAW — Sentence — Application for extension of time within which to seek leave to appeal — Aggravated home invasion and armed robbery — Youthful offender — Total effective sentence of 6 years and 4 months’ imprisonment with non-parole period of 3 years and 9 months — Home invasion a category 1 offence — Whether applicant had ‘assisted’ law enforcement — Whether substantial and compelling circumstances that are exceptional and rare justified a non-custodial sentence — Whether Youth Justice Centre order appropriate — Whether sentence manifestly excessive — Sentencing Act 1991 ss 5(2H), 10A, 10AC, 32(2C) — No satisfactory reason for delay — Appeal having no prospects of success — Extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood and Ms B Kelly | Greg Thomas Barrister & Solicitor |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
In the morning of Sunday, 16 February 2020, the Hamad family were inside their home in a residential street in Greensborough when, at about 7.10 am, the applicant and three co-offenders — disguised and armed — smashed their way in and subjected the family to a vicious and terrifying attack. Later that morning, the applicant was arrested by police.
Subsequently, on 27 November 2020, the applicant pleaded guilty before a judge in the County Court to aggravated home invasion[1] and armed robbery,[2] and to the related summary offence of committing an indictable offence whilst on bail.[3]
[1]Crimes Act 1958, s 77B. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[3]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment.
Following a plea in mitigation, on 18 December 2020 the judge sentenced the applicant to a total effective sentence of six years and four months’ imprisonment, with a non-parole period of three years and nine months, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Aggravated home invasion 5 years and 2 months Base 2 Armed robbery 4 years 14 months Related summary offence 12 Committing offence on bail Convicted and discharged Total effective sentence 6 years and 4 months’ imprisonment Non-parole period 3 years and 9 months Section 6AAA statement 9 years’ imprisonment with 6 years and 2 months non-parole Other orders Compensation
The applicant filed a notice of application for leave to appeal against sentence almost five months after the prescribed time.[4] Accordingly, the applicant has also made application for an extension of time within which to seek leave to appeal against sentence.[5] Should he be granted an extension of time, the applicant seeks leave to appeal against sentence on three proposed grounds:
[4]See Criminal Procedure Act 2009, s 279.
[5]See Criminal Procedure Act 2009, s 313.
1. The sentencing judge erred in his application of section 10A(2)(a) of the Sentencing Act 1991.
Particulars
(i) His Honour construed the provision as applying only to assistance of a particular kind, extent or quality; and
(ii) Because of this construction, his Honour did not find that the applicant had assisted law enforcement authorities in the investigation or prosecution of an offence, within the meaning of the provision.
2. The sentencing judge erred in not finding that there were substantial and compelling circumstances that are exceptional and rare, within the meaning of section 10A(2)(e) of the Sentencing Act 1991.
3. In all of the circumstances of the offending and the offender, the sentences imposed on charges 1 and 2 and the order for cumulation are manifestly excessive.
Particulars
(i) The sentencing judge erred in not finding that there were ‘exceptional circumstances’ that permitted the making of a Youth Justice Centre Order, pursuant to section 32(2C) of the Sentencing Act 1991; and
(ii) The sentencing judge erred in not sentencing the applicant to a Youth Justice Centre Order.
For the reasons that follow, the extension of time will be refused. Not only is the reason given for failing to file the notice of application for leave to appeal against sentence unsatisfactory, but the proposed appeal enjoys no prospects of success.[6]
[6]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The offending
The applicant’s offending was outrageous and disturbing in its audacity. It was described in the Amended Summary of Prosecution Opening as follows:[7]
[7]Footnotes omitted; emphasis added.
1. The [applicant], is a 19-year-old male. At the time of the offending he was 18 years old. The co-accused are William Afath [Afath] (18yo), Abrhm Chol [Chol] (18yo) and Yoro Deng [Deng] (19yo) (‘the co-accused men’).
2. The victims are the Hamad family: Henry (52yo), Josette (48yo), James (24yo), George (22yo) and Christopher (19yo). The Hamads have no prior association with the four co-offenders.
3. At approximately 6.30 am on Sunday 16 February 2020 [the applicant] and the co-accused men were travelling in a Hyundai Kona … which had a flat front right tyre. They abandoned the car in Tarwarri Court, Greensborough and walked south.
…
4. At approximately 7.10 am the four offenders attended the rear of the [Hamad premises in] Greensborough. The victim family were inside the premises.
5. Henry Hamad walked into the kitchen area on hearing a noise and observed the four offenders trying to open windows and doors. All four were wearing hoodies and two had on face masks. Henry Hamad yelled at the offenders, telling them to leave. They ran from the deck into the backyard.
6. Henry Hamad went out onto the deck, continuing to yell at them. His wife, Josette Hamad came downstairs and told Henry Hamad to get back inside the house. Henry Hamad locked the glass kitchen sliding door. Henry and Josette Hamad observed the offenders return to the deck, one holding a shovel which had been in the backyard.
7. The offender armed with the shovel approached a glass door and started hitting the door. The glass door shattered after repeated strikes, during which time Henry Hamad was attempting to hold the glass door shut. Small fragments of shattered glass impacted his chest and the shovel hit him on the left side of his chest.
8. The four offenders pushed past Henry Hamad and entered the house. The offenders were armed with the shovel, knives and screwdrivers (Charge 1: Aggravated Home Invasion). Hearing the commotion, George Hamad ran into the living room and tried to intervene, seeing his father being swarmed and threatened by the offenders. James Hamad also ran into the living room. Christopher Hamad heard his father yelling ‘call the police’ so he locked himself in his bedroom to call triple zero (‘000’). A neighbour, Peter Wilkinson could also hear yelling and shouting from the Hamad’s residence.
9. All four offenders demanded the victim family’s phones, wallets, money and car keys whilst threatening them with the shovel, knives and screwdrivers (Charge 2: Armed Robbery). James Hamad ran upstairs to comply with the demands and was followed by an offender who was carrying what he believed was a chisel. James Hamad gave a $50 note from his wallet to the offender and was instructed to go downstairs again.
10. An offender approached Josette Hamad and demanded her phone and wallet. Josette Hamad retrieved her phone and opened it using fingerprint recognition. The offender demanded she enter a password into the phone. The offender raised a knife and placed it to Josette Hamad’s throat, demanding the password to her phone. [Josettte] Hamad entered the password into the phone and gave it to the offender.
11. All four offenders shouted at the victim family, demanding the keys to their cars. The offenders stole three sets of vehicle keys off the key rack in the house and left via the front door.
12. The four offenders also stole:
a. A jewellery box containing 10 watches,
b. 1 x Apple iWatch,
c. 3 x Apple iPhones,
d. 3 x Seiko watches,
e. Driver licences,
f. Bank cards,
g. A purple purse, and
h. $276.55 in Australian currency.
13. The estimated stolen value of the property was $9,980.00.
14. The damage caused to the victim family’s house (the shattered screen door, various window framing damaged during attempted entry and damaged kitchen counter) totalled approximately $2,480.00.
15. Using the keys taken from inside the house, [Deng] entered the driver’s seat of a blue Honda Civic …, [Afath] entered the driver’s seat of the Holden Astra … and [the applicant] and [Chol] entered the Holden Commodore … It is unknown whether [the applicant] or [Chol] was driving the Holden Commodore.
16. The estimated value of the three cars is $65,000.
17. All three cars drove away from the scene in the same direction … at approximately 7.17 am.
…
24. Police arrived at the intersection of Gipps and Russel Street [Abbottsford] at approximately 7.41 am and observed [the applicant], [Chol] and [Deng] walking together. On catching sight of the marked police car, all three started running in different directions.
25. After a foot chase, [Deng] was arrested in possession of one of the victim’s mobile phones. He was observed during the chase to throw an item over a fence. That item was later recovered and identified as the key to the Honda Civic.
26. [Chol] was arrested at the intersection of Lennox and Victoria Street, Richmond. He was in possession of $155 believed to be belonging to the victim family.
27. [The applicant] entered the apartment complex at 253 Hoddle Street, Collingwood, and security officers called police. Police arrived and identified [the applicant] on the CCTV. Security officers advised police [the applicant] was associated with unit 167. On entering that unit through an open security and front door, police located [the applicant] sitting on a couch in the living room. He was arrested and a 20cm kitchen knife wrapped in a tea towel was located down the front of his pants. [The applicant] was also in possession of driver licences, bank cards, an Apple iPhone, three Seiko watches and a purple purse with coins all belonging to the victim family, as well as two red gloves and two green gloves.
28. [The applicant] was transported to the Melbourne West Police Station and interviewed, where he provided largely no comment [responses], though stated that between 7 – 8 am that morning he was sleeping at his Auntie’s house in Collingwood (where he was arrested) (A31 – 34).
29. Henry Hamad presented to his general practitioner on 16 February 2020 and then the Austin Hospital on 18 February 2020. Hospital medical materials indicate Henry Hamad’s general practitioner removed glass from his chest and he sustained bruising to his left anterior chest wall.
30. [Afath] was located and arrested in Footscray on 21 February 2020.
31. At the time of the offending, [the applicant] was on bail for unrelated offending (Related Summary Offence: Commit Indictable Offence on Bail).
…
Reasons advanced for not filing the application within time
In an affidavit sworn on 4 May 2021, the applicant’s solicitor, Mr Gregory Charles Thomas, deposed as follows:[8]
[8]Save where indicated, reproduced as in original.
2.The applicant pleaded guilty to charges of Aggravated Home Invasion and Armed Robbery in the County Court at Melbourne on the 17th November 2020.
3.Following a further plea on the 16th December 2020, the Applicant was sentenced for those offences on the 18th December 2020 to a total effective sentence of 6 years & 4 months, with a non-parole period of 3 years & 9 months.
4.After his sentence [the applicant] instructed that he wished to appeal the conviction [scil, sentence] in this matter.
5.The Learned Sentencing Judge, in his Sentencing remarks, referred the matter to the Adult Parole Board for consideration of an administrative transfer from adult prison to Youth Justice Centre.
6.On the 18th December, 2020, I sent an email to the Adult Parole Board advising them of His Honour’s referral, and sought information as to how long this process may take, so that I could advise my client. Annexed hereto and marked with the letters “GCT 2” is a copy of that email.
7.On the 21st December 2020 counsel on the plea Ms Sharon Lacy provided me with a memorandum advising that an Application for Leave to Appeal against Sentence was merited and would meet the required test to justify a grant of Legal Aid.
8.On the 31st December 2020 the Adult Parole Board replied to my email, indicating that the Board was seeking further information about this matter, and that they would keep me informed. On the same day I responded to that email, sending them a number of documents that had been tendered on the plea on behalf of the applicant. Annexed hereto and marked with the letters “GCT 2” is a copy of that email and response.
9.On the 4th March 2021 I was advised by Ms Para Grigorakis, Youth Justice Worker, that the Adult Parole Board had refused [the applicant’s] application for an administrative transfer to a Youth Justice Centre.
10.On the 12th March 2021 I contacted Ms Lacy to inform her of the Parole Board’s decision and requested that she draw the Application for Leave to Appeal against Sentence and Written Case.
11.I had not sought to file an Application for Leave to Appeal against Sentence prior to this time as I believed that filing such an application was likely to interfere with the Adult parole Board considering [the applicant] for a transfer to a Youth Justice Centre.
12.On the 29th April 2021 counsel Ms Lacy emailed me the completed Written Case and Notice of Application for leave to Appeal against Sentence for this matter.
13.I have confirmed that those steps were taken having reviewed my file in relation to these proceedings.
14.The delay in commencing the applicant’s appeal is in no way attributable to the applicant.
It will be noticed that, although it appears that the applicant indicated that he wished to appeal following his sentence on 18 December 2020, and counsel who appeared on the plea provided a memorandum of advice by 21 December 2020, the applicant’s solicitor did not ask counsel to draw the application for leave to appeal and written case until 12 March 2021 — a little over a week after he was advised that the applicant’s administrative transfer to a Youth Justice Centre (‘YJC’) had been refused.
Significantly, save that he asserted that he believed that filing an application for leave to appeal ‘was likely to interfere’ with the Adult Parole Board’s consideration of the applicant’s transfer to YJC, the applicant’s solicitor assigned no reason for not filing the necessary application at an earlier time. Certainly, he did not explain any basis for his belief that filing an application for leave to appeal within the prescribed time would impede the Adult Parole Board’s consideration of his client’s transfer.
Further, the solicitor’s affidavit is silent on why it took counsel from 12 March to 29 April 2021 — a period of almost seven weeks — to draw what appears to us to be a relatively straightforward application and written case. Counsel had, after all, appeared on the plea, and had provided an advice within three days of sentence. It was not a situation where counsel had to start ‘from scratch’. The delay in counsel drawing the necessary papers was completely unexplained.
We thus consider that no satisfactory reason has been provided for the delay in filing the application for leave to appeal within time.
Relevant statutory provisions
It is convenient at this point to set out several provisions of the Sentencing Act 1991 (‘the Act’) which have a direct bearing on the application for leave to appeal.
First, s 10AC of the Act provides that, for the offence of aggravated home invasion, an offender must be sentenced to a term of imprisonment with a non-parole period not less than three years, unless a ‘special reason’ exists:
10AC Custodial sentence must be imposed for offence of aggravated home invasion
(1) In sentencing an offender (whether on appeal or otherwise) for an offence against section 77B of the Crimes Act 1958, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 3 years unless the court finds under section 10A that a special reason exists.
Note
Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence.
(2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the offence.
By virtue of s 10A(2)(a), a court may make a finding that a special reason exists if an offender
has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; …
Further, under s 10A(2)(e) a court may also make a finding that a special reason exists if
there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
It should also to be noted that charge 2 — armed robbery ‘committed by the offender in company with one or more other persons’ — is a category 2 offence under s 3(1). Thus, the provisions of s 5(2H) of the Act were engaged. So far as relevant, they provide:
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
Secondly, s 32(2C) of the Act in effect provides that a sentence of YJC is not available to a young offender in the case of aggravated home invasion unless exceptional circumstances exist:
(2C) If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.
Section 3(1) provides that a young offender is ‘an offender who at the time of being sentenced is under the age of 21 years’; and a Category A serious youth offence includes aggravated home invasion.
Thirdly, s 32(1) of the Act provides:
(1) Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and—
(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
Fourthly, the combined effect of ss 32(3) and (4) is that the maximum sentence of YJC available is four years.
Submissions in support of the application for leave to appeal
Counsel for the applicant submitted that the core issue in the application for leave to appeal is the imposition of a period of imprisonment rather than a YJC sentence. In that respect, counsel acknowledged that there were the four ‘statutory hurdles’ in ss 10AC(1) and 10A(2)(a); 32(2C); 32(1); and 32(3) and (4), set out above.
With respect to the first proposed ground of appeal, the applicant’s counsel had argued on the plea that a special reason existed for the purposes of s 10AC(1) because the applicant had provided a sworn statement to police on 31 July 2018 in relation to a fatal stabbing at a party at which he had been present. In this Court, counsel submitted that the judge was wrong to find — as he did — that the applicant did not provide any material contribution to a favourable law enforcement outcome. The judge’s purported error in that regard was the ‘starting point’ for the other error asserted under grounds 2 and 3.
Counsel for the applicant submitted that ground 2 was argued as an ‘alternative’ to the first ground. On the plea, counsel submitted that, if the judge did not accept that the applicant had provided ‘assistance’ to law enforcement authorities in the investigation or prosecution of an offence, then the Court should find that there are ‘substantial and compelling circumstances that are exceptional and rare’ that justify a finding that a ‘special reason’ exists pursuant to s 10A. In this Court, counsel submitted that it was not open to the judge to conclude — as he did — that the combination of factors affecting the applicant, presented on the plea, did not constitute ‘substantial and compelling circumstances that are exceptional and rare’ within the meaning of s 10A(2)(e) of the Act.
The purported ‘substantial and compelling reasons that are exceptional and rare’ relied upon for the purposes of ground 2 included that: first, as a 17-year-old the applicant provided a statement to police in relation to an alleged murder; secondly, following the conviction of the accused in the murder trial, by way of retribution the applicant was assaulted on two occasions around September 2020 by YJC inmates; thirdly, the applicant was aged 18 years at the time of offending and 19 at sentence; fourthly, the applicant was subjected to a childhood of trauma and disadvantage, arriving in Australia as a refugee from Sudan via Egypt; fifthly, the applicant committed the offences whilst on youth parole, upon which he initially had been doing well; sixthly, the applicant served a nine-month sentence in YJC between March and December 2020, for offences committed in November and December 2019, after he sought to have his parole revoked; and, seventhly, during that nine-month period served in YJC, the applicant became respected as a positive role model and leader for the reclamation of young African offenders in detention.
Under cover of ground 3, the applicant’s counsel submitted that the judge was wrong to conclude — as he did — that there were no exceptional circumstances that justified a YJC sentence. Counsel relied upon the seven matters outlined in the paragraph immediately above. Further, counsel submitted that, should this Court accept that a special reason existed, a sentence of YJC should be seen to be appropriate given the applicant’s: early pleas of guilty; remorse; youth; steps towards rehabilitation; reduced risk to the community since entering YJC; rare step in having his youth parole revoked because he was not coping; salutary experience of spending time in adult prison; assistance to law enforcement in the investigation of a homicide; risk of retribution, which was increased in adult custody; and childhood trauma and deprivation.
The respondent’s submissions
With respect to ground 1, the respondent’s counsel submitted that the judge was correct to find that the applicant had provided no information in the investigation of a homicide that properly could be characterised as ‘assistance’.
As to ground 2, the respondent’s counsel submitted that it was open to the judge to conclude that the seven factors relied upon by the applicant did not amount to substantial and compelling reasons which are exceptional and rare.
Finally, with respect to ground 3, the respondent’s counsel submitted that it was open to the judge to conclude that the objective gravity of the applicant’s offending was such that a sentence beyond the length available in youth detention was necessary to give effect to the relevant sentencing purposes.
Ground 1: Failure to find that the applicant had ‘assisted’ law enforcement
Farmer[9] provides guidance in the resolution of the first ground of appeal. That case concerned a sentence imposed on an 18-year-old male for the commission of an armed robbery of a petrol station in the company of two others (one aged 18 years, and the other 16). Since the armed robbery ‘in company with one or more other persons’ was a category 2 offence within the definition in s 3(1), s 5(2H) of the Act required the judge to impose a custodial sentence upon the applicant unless he could bring himself within s 5(2H)(a) — he had assisted law enforcement authorities — or s 5(2H)(e) — there were ‘substantial and compelling circumstances’ that were ‘exceptional and rare’ and that justified the judge not making a custodial order. The applicant had provided some assistance to authorities by virtue of his admissions in the sense that his admissions assisted proving the prosecution case against him. In addition to making admissions, the applicant identified his co-offenders by name. This Court held, however, that the assistance provided was not such as to enliven the provisions of s 5(2H)(a).
[9]Farmer v The Queen [2020] VSCA 140 (Maxwell P, Kaye and Niall JJA) (‘Farmer’).
As was made clear in Farmer, a sentencing judge must be persuaded that an offender has assisted law enforcement authorities (or given an undertaking to do so) in the investigation or prosecution process. Once the judge is so persuaded, there is no warrant to distinguish further and construe s 5(2H)(a) as applying only ‘to assistance of a particular kind, extent or quality’.[10] Whether the judge is persuaded that an offender has relevantly ‘assisted’ will depend on what the offender has said in the context of the investigation or prosecution. Hence, where actual assistance is relied upon, the information imparted must be capable of assisting law enforcement authorities in their investigation of the offence, so that the judge will need to consider the capacity of the purported assistance to achieve a favourable law enforcement outcome.[11]
[10]Ibid [79].
[11]Ibid [80].
In Farmer this Court held that the sentencing judge in that case had been bound to conclude that the applicant had not provided assistance to authorities within the meaning of s 5(2H)(a). That was because it could not be inferred that, by implicating his co-offenders in his admissions, the applicant thereby intended to, or did, assist police.[12] Thus, there was no material before the sentencing judge which suggested that the information the applicant had provided altered the course of investigation; was not already known to investigators; or led investigators to evidence that they would not otherwise have obtained. By the time the record of interview was complete, the applicant had cooperated with police and made full admissions, but he had not provided assistance in the relevant sense.[13]
[12]Ibid [83].
[13]Ibid [84].
Applying Farmer, we consider that the sentencing judge in this case could not have been satisfied that the applicant had, within the meaning of s 10A(2)(a), ‘assisted … law enforcement authorities in the investigation or prosecution of an offence’.
The material before the sentencing judge suggested that, on 18 July 2018, some 18 months before the instant offending, the applicant made a statement to detectives investigating the death of a young woman who had been fatally stabbed. The statement appears to be a routine witness statement taken because the applicant happened to be at the party. In that statement, the applicant did not describe seeing the incident that led to the death, or name anyone as being responsible for the death, or disclose any information that was significant to the investigation. He simply said that he had been at the party where the deceased had also been and described her behaviour, while at the same time declining to name his friends who were present with him at the party where the incident which caused death occurred. Unsurprisingly, the applicant was not called as a prosecution witness at the alleged killer’s trial in 2019.
Given these circumstances, we consider that the judge was correct to observe in his sentencing remarks that, on the evidence before him, the applicant’s statement ‘did not provide any material contribution to a favourable law enforcement outcome’, so that he could ‘not find that the making of that statement in July 2018 constitutes assistance as contemplated by s 10A(2)(a) or s 5(2H)(e)’.[14]
[14]Emphasis added.
Proposed ground 1 is without substance.
Ground 2: Failure to find substantial and compelling circumstances that are exceptional and rare
Proposed ground 2 is also without substance.
In his reasons for sentence, the judge considered the various matters relied upon by the applicant’s counsel in an endeavour to establish the existence of substantial and compelling circumstances that are exceptional and rare, and observed:
In my opinion, notwithstanding the concerns raised for [the applicant’s] safety, the constellation of circumstances submitted do not constitute substantial and compelling circumstances that are exceptional and rare. In coming to this finding, I am not of the view that the cumulative impact of the circumstances of the case would justify a departure from the non-parole period of three years pursuant s 10AC or a period of imprisonment pursuant to [s 5(2H)(e)]. Of course, all these matters have been highly relevant in the formulation of the sentence that I will impose in this case.
We agree with these observations.
Whether, within the bounds of reasonableness, the applicant’s circumstances in combination amounted to ‘substantial and compelling circumstances’ that are ‘exceptional and rare’, was for the judge to determine.[15] As to that, we note the following statements from Farmer:[16]
Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment order or detention in a Youth Justice Centre or youth residential centre. …
In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.
[15]Farmer, [53].
[16]Ibid [51]–[52].
In our view, the concatenation of factors relied upon by the applicant did not compel the judge to find the existence of substantial and compelling circumstances that are exceptional and rare.
As we have said, neither of proposed grounds 1 or 2 can be upheld. We would add that, even had we been of the opinion that either or both of the proposed grounds was reasonably arguable, we would still have refused leave to appeal, since there is no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed, or reduce the total effective sentence despite there being an error in the sentence first imposed.[17] In our view, the contentions that a lesser sentence should be imposed, and that the sentence is manifestly excessive — a matter that we consider under cover of proposed ground 3 — are both wholly untenable.
[17]See Criminal Procedure Act 2009, ss 278(1) and (2).
Ground 3: A manifestly excessive sentence?
Turning to proposed ground 3, it is impossible to conclude that any aspect of the sentence imposed upon the applicant is manifestly excessive.
He may have been a youthful offender, but the applicant’s offending was nothing less than shocking. We need not once more recount its features in detail, but it involved a wantonly violent invasion of a family home — where the occupants were entitled to feel safe — by disguised and armed intruders, in circumstances that must have been absolutely terrifying for the Hamad family.
In the course of their submissions (both written and oral), the applicant’s counsel unsurprisingly placed a degree of emphasis upon his youth. With respect to that, the authorities recognise that the youth of an offender, particularly a first offender — which the applicant is not — is often a primary sentencing consideration, so that rehabilitation in the case of a youthful offender often deserves more prominence in the sentencing task than general deterrence.[18] The authorities also make clear, however, that in cases involving serious violence, whilst an offender’s youthfulness and rehabilitation — both achieved and prospective — are not irrelevant in the exercise of the sentencing discretion, they are of much less significance than in cases of less serious offending. Youth and rehabilitation must be subjugated to other considerations. Indeed, they must take a ‘back seat’ to specific and general deterrence in cases of violent offending,[19] particularly where — as has the applicant — an offender has previously been given opportunities to reform. That is because offending of the kind perpetrated by the applicant is so prevalent that general deterrence, specific deterrence and denunciation must be emphasised.[20] Plainly, in the circumstances of the present offences and the present applicant, his youth must be of reduced significance. That does not mean that there is no scope for his youth to influence the sentence — youth will continue to have a bearing on the type and length of any sentence imposed — but it will not have the same significance as in less serious cases.
[18]R v Mills [1998] 4 VR 235, 241 (Batt JA).
[19]See R v Wright [1998] VSCA 84, [6] (Winneke P).
[20]See DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA) (‘Lawrence’).
In the present case, the applicant’s offending is aggravated by the fact that he was on bail[21] and youth parole[22] at the time.
[21]R v Gray [1977] VR 225, 229–230 (Gillard, McInerney and Crockett JJ); R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J, Fullagar and Marks JJ agreeing); R v Basso & Frazetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA), 404–5 [57]–[63] (Charles JA); DPP v Galea and Mosut (2000) 112 A Crim R 507; Pop v The Queen (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA, Bongiorno JA agreeing); Samuels-Orunmwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA, Maxwell ACJ and Redlich JA agreeing); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA) (‘Milson’). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
[22]Lawrence, 130 [16] (Batt JA); Milson, [66] (Priest and Weinberg JJA). See also s 16(3B) of the Sentencing Act 1991, which requires that every term of imprisonment ‘imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order’.
Moreover, as the judge remarked, for a person of his age, the applicant has ‘a substantial and serious criminal record’. His prior convictions and findings of guilt include a sentence of 12 months’ youth supervision imposed in November 2017 for attempted armed robbery, three armed robberies, obtaining property by deception and robbery. In April 2019, the applicant was sentenced to 15 months’ YJC for handling stolen goods, robbery, violent disorder and other offences. He was on youth parole for that sentence when the present offending occurred. His parole had commenced in July 2019, given pre-sentence.
The applicant’s prior convictions do not aggravate the offending, and, of course, he is not to be punished again for his prior offences. As was made clear in O’Brien,[23] however, although no principle of sentencing requires that more severe sanctions be imposed upon those who persist in criminal behaviour, an adverse criminal record may nevertheless have an impact on the sentencing process in a number of ways: as an indicator of the offender’s moral culpability; his or her prospects of rehabilitation; his or her dangerous propensity (and the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.
[23]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA). See also Leishman v The Queen (2019) 90 MVR 421, 427–9 [19]–[21] (Ferguson CJ, Whelan and Priest JJA); Victorsen v The Queen (2020) 94 MVR 91, 100–101 [33]–[34] (Priest JA, Niall JA agreeing).
Notwithstanding his unenviable criminal history, positive evidence was produced on the plea suggesting the applicant had been, as the judge put it, ‘progressing extremely well’, and had been ‘able to engage very positively with adults in the youth justice system’. The applicant had also written a letter, expressing remorse for what he did, which was also tendered. Evidence in the form of a report by a psychologist, Gina Cidoni, was also produced. Ms Cidoni reported that her testing indicated that the applicant was immature and impressionable, and influenced by his peers. Testing also indicated low mood, antisocial attitudes and impaired empathy. The applicant, she said, had low average to average intellectual functioning, and has a Persistent Depressive Disorder and a substance use disorder.
Another of the principal matters urged in mitigation was the applicant’s disadvantaged background. The applicant was born in Sudan on 15 May 2001, the second of five children, and his ethnicity is Sudanese and his first language is Arabic. His parents escaped the civil war in Sudan by seeking refuge in Egypt with him and another child. During his early years in Egypt, his family was exposed to civil unrest, public violence and an uncertain future. The family was granted a humanitarian visa to Australia in 2004 when the applicant was aged three years. Initially the family settled in the western suburbs, before relocating to public housing in North Melbourne. The applicant attended secondary school at Simmonds Catholic College in West Melbourne until half-way through year 10. In June 2018 he completed an introductory carpentry certificate, but failed to complete the carpentry pre-apprenticeship course that followed. By that time he had already developed negative peer associations and substance abuse problems, and had been in trouble with the law.
Importantly, the High Court made it clear in Bugmy[24] that a deprived background does not have the same relevance to all purposes of punishment, and observed that an inability to control violent responses to frustration, borne of an exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[25]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[26] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[24]Bugmy v The Queen (2013) 249 CLR 571.
[25]Ibid 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citation as in original). See also DPP v Herrmann [2021] VSCA 160 (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
[26]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
In the circumstances of this case, although the applicant’s disadvantaged background had to be given full weight, general and specific deterrence, denunciation, just punishment and the protection of the community also needed to be given appropriate weight in the exercise of the sentencing discretion. The applicant’s offending was breathtakingly bold, and subjected the Hamad family to what the judge described as ‘a terrifying ordeal’, leaving a lasting impression upon them. As the Court observed in Wol,[27] a case that factually bears some similarities to the present, the offence of aggravated burglary ‘strikes fear into law abiding citizens who are entitled to feel safe in their own homes’. The Court further observed that[28]
those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.
[27]DPP v Wol [2019] VSCA 268.
[28]Ibid [79] (Kyrou, Kaye and T Forrest JJA).
Ultimately, we consider that, when due regard is paid to the very serious nature of the applicant’s offending and his criminal antecedents, balanced against his youth, disadvantaged background and other matters in mitigation, the contention that the sentence imposed upon him is manifestly excessive can be seen to be completely devoid of merit.
Conclusion
As we have indicated, no satisfactory reason was provided for failing to file the notice of application for leave to appeal against sentence within time. Furthermore, as we have explained, the application for leave to appeal enjoys no prospects of success. In those circumstances, it would be pointless to grant the application for an extension of time. It must be refused.
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