Mark Brown v The Queen

[2017] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0255

MARK BROWN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	22 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 268
JUDGMENT APPEALED FROM:	[2016] VCC 1402 (Judge McInerney)

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CRIMINAL LAW – Application for leave to appeal against sentence – False imprisonment – Extortion with a threat to inflict injury – Sentenced to total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 8 months – Whether individual sentences and total effective sentence manifestly excessive – Whether sentencing judge gave too much weight to the applicant’s criminal record in assessing the applicant’s prospects of rehabilitation – Crimes Act 1958 ss 27, 320 – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Pearson	Vassis & Co
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA:
COGHLAN JA:

1. This is an application for leave to appeal against sentence on the ground of manifest excess. 

1. In relation to Indictment F1362077, the applicant was arraigned and pleaded guilty on 19 August 2016. 

1. The indictment offences were committed in breach of a community correction order (‘CCO’) imposed on 29 May 2014 by the County Court following appeal against sentence in the Magistrates’ Court. 

1. The applicant was sentenced in relation to both the Indictment and contravention of the CCO on 21 September 2016. 

1. The penalty imposed for contravening the CCO (3 months’ imprisonment) is not the subject of an application for leave to appeal. 

1. The sentences the subject of appeal are as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (Common Law)	10 years (s 320 Crimes Act 1958)	2 years	14 months
2.	False imprisonment (Common Law)	10 years (s 320 Crimes Act 1958)	3 years	Base
3.	Extortion with a threat to inflict injury (s 27 Crimes Act 1958)	15 years (s 27 Crimes Act 1958)	2 years	16 months
Total Effective Sentence:		5 years 6 months
Non-Parole Period:		3 years 8 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		332 days
6AAA Statement:  Total Effective Sentence: 7 years 4 months; Non-Parole Period: 5 years 9 months
Other relevant orders: The sentence imposed in regard to this Indictment of 5 years and 6 months be served cumulatively on the sentence of 3 months imposed for contravening the community correction order.

1. The applicant was born on 8 February 1987 and was 28 years old at the time of the offending.  At the time of sentence, he was 29 years old; he is now 30 years old. 

1. The victim, Luke O’Loughlin, was 26 years old at the time of the offending.  He was a crystal methylamphetamine (‘ice’) user with drug debts. 

1. Mr O’Loughlin had known the applicant for approximately two weeks.  On or about 12 October 2015, a mutual acquaintance brokered contact between Mr O’Loughlin and the applicant.  The applicant was to supply Mr O’Loughlin with some ice which he would sell at a profit to service his drug debts. 

1. Mr O’Loughlin met the applicant in Footscray and was supplied with a quantity of ice.  Mr O’Loughlin was to return money to the applicant in the following couple of days.  Instead, Mr O’Loughlin consumed a large proportion of the drugs himself.  He made a small amount of money through sale of the remaining drugs but subsequently lost the money gambling. 

1. The applicant was displeased with Mr O’Loughlin when they spoke by telephone on 19 October 2015 and instructed him to meet the applicant in Dandenong later that day. 

Charge 1 — false imprisonment

1. The victim was picked up in a car driven by an unknown female with one unknown front seat passenger, an unknown backseat passenger and the applicant.  Mr O’Loughlin was compelled to sit in the middle of the backseat, between the applicant and an unknown male. 

1. Once they started driving, the applicant punched Mr O’Loughlin in the mouth several times.  Mr O’Loughlin telephoned a female, on speaker, who owed him money.  She acknowledged the debt but was not prepared to be forthcoming with money.  Upon hearing this, the applicant punched Mr O’Loughlin in the mouth again. 

1. The applicant told Mr O’Loughlin he should rob a jewellery store.  When Mr O’Loughlin declined, the applicant punched Mr O’Loughlin in the mouth again. 

1. Mr O’Loughlin telephoned a male, on speaker, and asked to borrow $300.  The male agreed and they drove to Carrum Downs to meet him and collect the money.  The applicant took the $300 and told Mr O’Loughlin that he could go after handing over his wallet.  The applicant said ‘Make sure you answer your fucking phone and make sure you have my money.  Each day it goes up by $500.’ 

1. The applicant observed Mr O’Loughlin’s parents’ address in the wallet and told Mr O’Loughlin he would ‘go knocking’ on the door if he did not get the money. 

1. During the time Mr O’Loughlin had been in the car he had felt threatened and unable to leave, placed as he was between the applicant and the other male.  

Charge 3 — extortion with a threat to inflict injury[1]

[1]Section 27(a) of the Crimes Act provides:

A person who makes a demand of another person—

(a)with a threat to kill or inflict injury on a person (other than the offender or an accomplice of the offender);

1. The following day, the applicant telephoned Mr O’Loughlin to advise him that he now owed $2000.  The applicant texted his bank account details to Mr O’Loughlin so that he could deposit the money into the applicant’s account. 

1. Mr O’Loughlin attempted unsuccessfully over the following days to borrow money from friends and family. 

1. On Sunday 25 October 2015, Mr O’Loughlin went to the Mordialloc Sports Club with co-accused, Joshua White.  Mr O’Loughlin had known the co-accused for approximately a month.  Mr O’Loughlin was using GHB and Xanax and he lost consciousness in his car, whilst parked in the Seaford area.  He had no memory of attending the sports club. 

1. Later that evening, the co-accused checked himself and Mr O’Loughlin into the Palms Motel, Footscray. 

1. Mr O’Loughlin awoke around 9:00 am the following morning, which was 26 October 2015.  The applicant and the co-accused were present; Mr O’Loughlin noticed there was blood on his pillow and his head.  He was dazed and confused.  The applicant said ‘Good you’re awake finally.  Better get to work’ and ‘There are other ways of making you feel pain.  We could send parts of you home until the money is sent’. 

Charge 2 — false imprisonment

1. The applicant and co-accused forced Mr O’Loughlin to telephone his parents on speaker to ask for money. 

1. They used the co-accused’s phone.  Mr O’Loughlin told his parents he needed $5000 and that the amount would go up every day it was not paid.  His father said ‘Tell them you need to go somewhere to organise the money.  I will meet you somewhere.’  Mr O’Loughlin replied ‘They will be there, they won’t let me go.’  The call was terminated. 

1. Shortly thereafter, Mr O’Loughlin was forced to telephone his parents again.  His father screamed at the applicant and co-accused to release his son, refusing to pay.  Then, Mr O’Loughlin’s father called the police. 

1. The applicant told Mr O’Loughlin to have a shower and start making phone calls to obtain money.  Mr O’Loughlin was told to call Sunshine Loans and was provided with an iPad to make an online loan application.  The applicant left, telling Mr O’Loughlin that ‘if nothing comes about by the time I come back, you’ll be put in the boot’. 

1. The co-accused drove Mr O’Loughlin to a bank branch to open a loan account, which the bank refused.  Then, they drove to a McDonald’s restaurant where they met with the applicant.  The three of them then drove back to the Palms Motel and checked into a different room at approximately 5:00 pm.

1. Sometime later, Matthew Mayne arrived at the motel room and gave money to the applicant, who then left. 

1. Throughout the evening, the co-accused and Mr Mayne reported Mr O’Loughlin’s progress in making loan applications to the applicant via telephone calls.  The applicant instructed Mr Mayne to ‘give him one or two, fuckin take the little cunt, punch his head in’. 

1. At 9:10pm, Mr Mayne and the co-accused took Mr O’Loughlin to a Hungry Jack’s restaurant.  Upon returning to the motel, they continued to provide telephone updates regarding the progress of the loan applications to the applicant.  The applicant became angry and said ‘Nothing has been achieved since I left? Well I’ll come up and give him the tune up then alright? I’ll break his nose this time’. 

1. At 10:45 pm, members of Victoria Police Special Operations Group entered the motel room.  Mr Mayne and the co-accused were arrested.  Approximately an hour later, police arrested the applicant at a service station in Footscray. 

Personal circumstances of the applicant

1. As we have said, at the time of sentence, the applicant was 29 years old.  He had been raised by a single mother, with the assistance of his grandparents.  At the time of sentence he was living in a steady de facto relationship. 

1. In his mid-teens he developed a chondrosarcoma at the bridge of his nose which required surgery in 2005 and again in 2010.  He developed seizures in 2011 but at the date of sentence had not suffered a seizure for several years. 

1. Following the surgery which he had required, the applicant became addicted to benzodiazepine and commenced self-medicating with ice.  He had become a drug addict.  His employment record was poor and he had two sets of convictions for the same type of offending for which he fell to be sentenced on this occasion. 

1. On 29 May 2014, in the County Court at Melbourne on appeal from the Magistrates’ Court, the applicant was placed on a four year CCO following convictions for possess methylamphetamine, recklessly cause injury and extortion with threat to kill.[2] 

   [2]The applicant had been sentenced on 19 June 2013 to three months’ imprisonment and an 18 month CCO at first instance in the Magistrates’ Court. 

1. On 19 June 2015, in the Sunshine Magistrates’ Court, he was sentenced to 215 days’ imprisonment (being time served) and placed on a 12 month CCO following conviction for false imprisonment, theft, assault with a weapon and traffic offences. 

1. On the plea, the applicant presented evidence of remorse and of rehabilitation in respect of his drug habit including, in particular, evidence of clean urine tests. 

1. The sentencing judge addressed each of the relevant sentencing considerations in the course of his reasons.  Amongst other matters:

·the judge referred to the different maximum penalties for each offence;

·the judge assessed the culpability of the applicant in regard to charge 1 as mid-range, as to charge 2 at the level of between mid-range and high, and in regard to charge 3 between low and mid-range; 

·the judge noted the applicant’s prior convictions including the two prior occasions on which he had been convicted of similar offending and received CCOs including one occasion on which the judge had been the sentencing judge;

·the judge identified relevant matters relating to the applicant’s medical and personal history including, in particular, his history of addiction to ice;

·the judge accepted that there was some evidence of remorse on the applicant’s part, evidence that he had commenced rehabilitation and evidence that he had developed a steady relationship with a young woman;

·the judge took into account that the applicant had served considerable time in custody apart from the period properly regarded as pre-sentence detention;

·the judge expressly recognised that totality bore on the penalty he should impose. 

1. It was submitted in the applicant’s written case that the sentence imposed should be regarded as manifestly excessive and in particular:

(a)               that the sentencing judge gave too much weight to the applicant’s criminal record in assessing the applicant’s prospects of rehabilitation;

(b)               that the sentencing judge failed to have due regard to the principle of totality;

(c)               that the sentencing judge should have sentenced the applicant to a lesser sentence of imprisonment coupled with a CCO; and

(d)              that looked at in the broad, both the individual sentences and total effective sentence were manifestly excessive. 

1. The applicant refined his case in argument before this Court and focussed upon the question of totality.  It was submitted first that the sentences imposed were individually at the upper end of the range, secondly that the cumulation imposed in respect of the sentence for charge 3 upon the base sentence for charge 2 was manifestly excessive, and thirdly that in consequence the total effective sentence was manifestly excessive. 

The applicant’s criminal  record

1. It is convenient to say something about the applicant’s criminal record before turning to the question of totality. 

1. I do not accept that it can be inferred that the judge gave too much weight to the applicant’s criminal record.  That record was properly regarded as bearing directly upon the realistic prospects of the applicant’s rehabilitation and upon the need for both substantial specific deterrence and for general deterrence.[3] 

   [3]Sentencing Act 1991 s 5(2)(f); Veen v The Queen [No 2] (1988) 164 CLR 465.

Totality

1. When regard is had to the relevant maximum penalties (including the higher maximum for the extortion charge), the gravity of the offending and the applicant’s prior record, none of the individual penalties can be regarded as manifestly excessive. 

1. It may be noted that the maximum penalty for a breach of s 27 of the Crimes Act 1958 is higher than that for threat to inflict serious injury (s 21) or threat to kill (s 20) or false imprisonment (s 320). On the other hand, s 27 covers both extortion with a threat to kill and extortion with a threat to inflict injury.

1. Moreover, both charges 2 and 3 arose out of the same episode.  The Director properly conceded that the cumulation imposed in respect of charge 3 raises an arguable issue of manifest excess having regard to the principle of totality.[4] 

   [4]Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The Queen (2011) 35 VR, 43, 64 [75].

1. Nevertheless, it seems to us that the essence of the criminality involved in charge 3 is quite distinct from that involved in the false imprisonment charges and that, having regard to the context in which the extortion coupled with the threats of injury occurred (including previous actual blows to the victim), some material cumulation of penalty was required. 

1. The threat forming the basis of charge 3 was made at the outset of the extended false imprisonment forming the basis of charge 2.  It denoted the commencement of a new period of gross intimidation of the victim undertaken in the conduct of illicit drug trafficking and presaged with acts of actual violence and the first episode of false imprisonment. 

1. Further, the threat of progressively sending body parts to the victim’s home was a threat of very serious injury made to the victim when he was in a very vulnerable position. 

1. Although the cumulation of 16 months in respect of charge 3 was stern, it could not be said to be manifestly excessive.  It was reasonably open to the judge to cumulate two-thirds of the penalty imposed on the extortion charge upon the penalties imposed for false imprisonment. 

1. Likewise, we are not persuaded that the total effect of the orders for cumulation was manifestly excessive, relating as they did to two distinct episodes. 

1. They were justified in particular by consideration of specific and general deterrence. 

Conclusion

1. We would refuse leave to appeal. 

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