Mark Robinson v The Queen
[2017] VSCA 98
•3 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0016
| MARK ROBINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 3 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 98 |
| JUDGMENT APPEALED FROM: | [2016] VCC 2068 (Judge McInerney) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary, intentionally causing injury, possessing a firearm whilst a prohibited person and possession of a drug of dependence (methylamphetamine) – Total effective sentence of six years’ imprisonment – Non-parole period of four years – Double punishment – Denial of procedural fairness – Taking into account irrelevant matters – Arguable breach of rule in De Simoni v The Queen (1981) 147 CLR 383 – Manifest excess – Crown concessions – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Stary Norton Halphen |
| For the Respondent | No appearance | Mr John Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, Mark Robinson, seeks leave to appeal against the sentence imposed on him in the County Court of Victoria on 16 December 2016.[1] He pleaded guilty at the committal on 18 May 2016, and again before the plea hearing on 1 August 2016, to one charge of aggravated burglary (trespass with intent to assault, person present, entry while in possession of a weapon) contrary to s 77 of the Crimes Act 1958,[2] one charge of possessing a firearm whilst a prohibited person contrary to s 5 of the Firearms Act 1996, one charge of intentionally causing injury contrary to s 18 of the Crimes Act, and one charge of possessing a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. His older brother, Edward Robinson, who faced similar charges as a co-offender, also pleaded guilty to the charges against him. The two men were sentenced together by the same judge on 16 December 2016.
[1]DPP v Robinson [2016] VCC 2068 (‘Sentencing reasons’).
[2]The details of the charge are set out at [45] below.
Mark Robinson was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 5 years’ imprisonment Base 2 Possessing a firearm whilst a prohibited person [Firearms Act 1996 s 5] 10 years’ imprisonment or 30 penalty units 2 years’ imprisonment 6 months 3 Intentionally causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment 18 months’ imprisonment 6 months 4 Possessing a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73] 1 year imprisonment or 30 penalty units 3 months’ imprisonment - Total Effective Sentence:
6 years’ imprisonment
Non-Parole Period:
4 years
Pre-Sentence detention declaration:
470 days
Section 6AAA Statement: 8 years’ imprisonment, non-parole period 5 years and 4 months.
Other relevant orders: Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958. Disposal order made.
The judge imposed a sentence of five years’ imprisonment on each brother for the charge of aggravated burglary faced by each. This was the base sentence for each man. On the charge of intentionally causing injury, he sentenced Edward to 12 months’ imprisonment and Mark to 18 months’ imprisonment. In relation to the firearms offences, he sentenced Edward to six months’ imprisonment and Mark to two years’ imprisonment. The firearms offence in respect of which Edward was charged was for storing a firearm in an insecure manner whilst unlicensed (Firearms Act s 129A) while the firearms offence in respect of which Mark was charged was possessing a firearm while a prohibited person (Firearms Act s 5). The judge imposed a fine on Edward for the summary offence in relation to the ammunition and imposed a sentence of three months’ imprisonment on Mark for a drug offence to be served concurrently. With respect to the intentionally causing injury offence, he ordered cumulation of six months on the base sentence for both brothers. With respect to Mark, he also ordered cumulation of six months with respect to his firearms offence. The result was that Edward’s total effective sentence was five years and six months’ imprisonment (together with the fine), while for Mark it was six years’ imprisonment. The judge declared a non-parole period of three years for Edward, while for Mark it was four years.
Mark seeks leave to appeal on the grounds: (1) that there was double punishment on the charges of aggravated burglary and possessing a firearm whilst a prohibited person; (2) that the judge erroneously took into account matters in the victim impact statement that were not agreed facts; (3) that the judge denied him procedural fairness by not alerting him that he was considering rejecting the submissions about a combined sentence of imprisonment and a Community Correction Order made on his behalf on the plea; and (4) manifest excess.[3]
[3]The full terms of the grounds of appeal are set out at [26] below.
For the reasons that follow, I consider that leave to appeal should be refused with respect to grounds 1 and 3 but granted with respect to grounds 2 and 4. Indeed, the Crown, in a recent supplementary submission, concedes the specific error in ground 2. It also accepts that there is a further specific error, not alleged by Mark Robinson, which vitiates the sentence in respect of the aggravated burglary charge. Furthermore, the Crown concedes that leave should be given in respect of ground 4 on the basis that the length of the sentence does not faithfully reflect the value of the plea.
Circumstances of the offending
The charges of aggravated burglary and intentionally causing injury faced by the two brothers arose out of a home invasion by them on the night of Wednesday 2 September 2015. Edward’s partner, Victoria Petrellis, had been having an affair with the victim, Walter Gorlin, for about three months before that night. Edward, suspecting that this was the case, questioned his girlfriend, but while she admitted having met Gorlin once, she denied that the relationship was ongoing. Edward was not satisfied, and so he purchased a computer application to enable him to download the contents of his girlfriend’s mobile phone. As a result, it became clear that the affair between Petrellis and Gorlin had not ceased.
On the evening in question, Edward confronted Petrellis, following which Petrellis drove Edward to Gorlin’s house in Greenvale. They could see the front light was on and it seemed people were at home, so they drove to the Westmeadows Hotel and then to Edward’s mother’s house in Gladstone Park. There Edward spoke to his brother Mark, who lived with his mother as her carer, while Petrellis remained in the vehicle. Mark went into the house and then came out to the car and got into the back seat. Mark had a sawn-off shotgun with him. It was common ground that at that stage Edward was not aware that Mark had the gun with him and the Crown did not allege that he had that knowledge.
The three of them then drove back to Gorlin’s house. By now it was about 9.30pm. When they pulled up and parked, Gorlin’s twin 17-year-old sons were outside the house with a friend. The Robinson brothers asked the boys where Gorlin was. Gorlin, who was inside watching television, walked to the front door. The Robinsons confronted him and pushed their way inside the house. This conduct by Edward formed the basis of the charges against him of aggravated burglary (intent to assault, person present). Edward immediately started to assault Gorlin by kicking and punching him. These acts were the basis of the charge against Edward of intentionally cause injury.
At this point, Mark pulled out the sawn-off shotgun and discharged one round into the ceiling. In his statement to police, Gorlin described the shot as going right past his ear, causing a loud ringing. The forced entry and the possession of the firearm formed the basis of charges against Mark of aggravated burglary (trespass with intent to assault, person present, entry while in possession of a weapon) (charge 1) and being a prohibited person possessing a firearm (charge 2).
The altercation between the three men continued and moved to the front yard, where Mark Robinson used the butt of the gun to assault Gorlin to the back of the head. This assault formed the basis of the charge of intentionally causing injury against Mark (charge 3). The Robinson brothers then ran to their car and drove away. It seems by then Petrellis had fled to a neighbouring property, where the occupants called the police.
Gorlin was taken to Royal Melbourne Hospital, where he was treated for lacerations to the head, face and hands. He sustained a 6cm long injury to the left parietal region of his scalp, requiring three staples and sutures, injury leading to bloodiness to the inner aspect of his right ear as well as bruising to both the inner and outer aspects of that ear, and bruising, redness and abrasions to the face.
Police attended Gorlin’s house where they recovered a spent gunshot shell and observed a large amount of blood inside the premises.
The following day Edward was arrested by police and interviewed. He made admissions to most of the offending, although he denied knowing that his brother had the gun before they went to Gorlin’s house. Edward consented to a search by police of his house after he told them a gun and ammunition could be found there. The police found a single barrel sawn-off shotgun under the dressing table in the bedroom and a box of ammunition in the wardrobe. These discoveries formed the basis of a charge against Edward of storing a firearm in an insecure manner whilst unlicensed and a summary offence of possession of ammunition without a licence.
Mark Robinson was also arrested at home the following day. In his record of interview he said he was on ‘ice’ and GBH the previous evening and had no recollection of what occurred from 8.30pm to 3.00am. A search warrant was also executed at Mark’s house, as a result of which the police seized a CCTV hard drive located in the roof cavity, methyl amphetamine and a discharged shotgun shell. Mark was also charged with possessing a drug of dependence (methylamphetamine) (charge 4).
The judge’s findings
The plea was adjourned to enable a mental condition report and a potential Justice Plan for Mark as a person under a disability, and a suitability report, with respect to Edward, for a Community Correction Order.
In relation to the charge of aggravated burglary, the judge was conscious of the need to avoid double punishment and he had regard to the test set out in DPP v Meyers:[4]
In understanding and appropriately sentencing for the aggravated burglary, it is important to remember the statement of the Court in Meyers at [71], that the factors that I have detailed herein being factor 5, the assault by Edward, factor 6, the possession of the gun which lead to the discharge and 7, the assault outside the home are not aggravations which I relate to the aggravated burglary, and nor do those matters make up any element for which punishment can be imposed, in the sense that they occurred after the happening of the aggravated burglary. Those matters were clearly set out, as I said in [71] of Meyers.[5]
[4](2014) 44 VR 486 (‘Meyers’).
[5]Sentencing reasons [17].
The judge also accepted that there was no forced entry. However, he considered that this was a confrontational aggravated burglary involving a home invasion that required a sentence that reflected the need to send a message that such vigilante behaviour would not be tolerated.[6]
[6]The judge cited Hogarth v The Queen (2012) 37 VR 658, 672 [52], [54], 673 [56], 674 [62] (‘Hogarth’).
The judge noted the contrasting features of the aggravation, namely, that for Edward the aggravation lay in a person being present at the home he entered while for Mark the factor of aggravation was entering the premises with a weapon.[7] He considered the degree of heinousness of the offending for both brothers as between mid-range and high. In arriving at the finding he said:
In accordance with the determination of the High Court in Ibbs v R, it is necessary for this Court to define, where you have a statutory offence such as this, by an analysis of the circumstances as to where such a crime sits on what was described by the High Court as the scale of heinousness. In regard to both charges of aggravated burglary, that is both charges against the Robinsons, and noting that the charge is aggravated itself insofar as Mark Robinson is concerned by the firing of the shotgun, I assess the heinousness of the culpability in regard to both Robinsons at somewhere between mid-range and high.[8]
[7]Sentencing reasons [60].
[8]Ibid [23] (citation omitted) (emphasis added).
The judge’s observation that, with respect to Mark, the aggravating factor for the burglary was the discharge of the firearm, is the observation which the Crown accepts reveals a specific error. This is explained further below.
In considering the previous criminal history of the two brothers, the judge noted that Mark had a number of prior convictions, including drug type offences and inappropriate possession of weapons, as well as breaching family violence orders. Indeed, Mark had only been released from gaol barely a month before the subject offending.
Generally Mr Mark Robinson’s prior history shows drug type offences and inappropriate possession of weapons. In November 2012, he was convicted of trafficking in amphetamine and given a one month suspended sentence. In October of 2014 he was convicted of breaching a suspended sentence, and also convicted of breaching offences, being a further charge related to family violence and possession of prohibited weapons. Mr Mark Robinson was given an eight month sentence of imprisonment of which three months was to be served immediately and five months was suspended. Then the suspended sentence was breached again by a further breach of family violence orders, when he was given the six months in May of 2015.[9]
[9]Ibid [33] (emphasis added).
By contrast, Edward did not have any prior convictions recorded against him, although he had been charged previously with drug and weapons offences.
The judge observed that a psychological assessment of Mark showed that he has a full-scale IQ of 64, which would qualify him for disability support services. The judge noted the findings of the psychologist that Mark’s psychometric testing showed him to be in the bottom one per cent of his age peers for thinking and reasoning ability, and he would therefore have an impaired understanding of the consequences of his actions and be prone to impulsive behaviour, with such traits aggravated by his abuse of drugs. He also suffers from post-traumatic stress disorder precipitated by being subjected to a home invasion involving his mother, with the result that he is hyper vigilant and has problems with trusting people. The judge found that:
although these factors would go to mitigation and reduction of culpability, it could not be said that Mr Mark Robinson had no real sense of what he was doing, as explained in Meyers. …
I accept that at the time of the offending such intellectual disability of Mark Robinson played a role in diminishing his capacity for rational judgement. No doubt, such also explains why he so willingly, and impulsively, went off on such escapade with his brother. Hence his criminal culpability for such offending is reduced. As explained in Verdins, such a determination leads to the need for a moderation of the normally implicit need for a sentence which affects punishment, general deterrence and denunciation of crimes of this sort.[10]
[10]Ibid [44]-[45].
The judge also accepted that Mark’s post-traumatic stress disorder would render him more vulnerable than a normal person to any sentence of imprisonment.
The judge further noted the early plea of Edward, that after being granted bail he had engaged in full time work, and that he had been involved in a Men’s Behaviour Change Program, had self-presented for four urine samples which were all negative, had undergone drug and alcohol counselling, and had apparently reconciled with Petrellis, who was present in court and had provided a letter of support. Nonetheless, given the objective seriousness of the offending, the judge did not consider that it was appropriate to grant either brother a Community Correction Order in addition to a sentence of imprisonment pursuant to s 44(1) of the Sentencing Act 1991.
After referring to Boulton v The Queen[11] and DPP v Borg,[12] the judge said:
I find upon principle and analysis of these crimes, in regard to both Edward and Mark Robinson, that the objective criminality of the charges, in particular the aggravated burglary charges, and the intentional infliction of injury charges, is too great to allow for the disposition [involving a Community Correction Order] sought by both counsel, despite the concession made by the prosecution in regard to both prisoners.[13]
[11](2014) 46 VR 308.
[12][2016] VSCA 53.
[13]Sentencing reasons [68].
Grounds of appeal
Mark Robinson seeks leave to appeal on the following four grounds:
Ground 1
The judge erred in doubly punishing the applicant in respect of charges 1 (aggravated burglary) and 2 (possessing a firearm whilst prohibited).
Ground 2
The judge erred in taking into account matters in the Victim Impact Statement which were not agreed facts.
Ground 3
The judge erred in failing to alert counsel for the applicant that he was considering rejecting the submissions as to sentence hereby denying the applicant procedural fairness.
Ground 4
The individual sentences on charges 1 and 2, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive.
Particulars:
(a)The judge gave insufficient weight to the applicant’s intellectual disability and the application of Verdins principles, the need for targeted supervision and services upon release into the community and the principle of totality.
(b)The judge failed to distinguish the offending conduct and personal circumstances of the applicant from that of the respondent in DPP v Bowden [2016] VSCA 283.
Ground 1 – double punishment
Mark Robinson relies on the following observations by Redlich JA (with whom Weinberg JA agreed) in Armistead v The Queen:[14]
Sentences in the order of two years for the offence of possession of an unregistered firearm whilst being a prohibited person are usually reserved for cases where the firearm is in fact used in the commission of an offence, or is possessed for a specific criminal purpose, or is ‘associated with ongoing criminal activity’. Cases in which the possession cannot be so characterised normally attract sentences considerably lower than two years’ imprisonment. The sentence imposed has left me uneasy that his Honour treated the fact that the appellant used the … firearm in the armed robberies as establishing that the possession was for a specific criminal purpose so as to aggravate the offence of possession, and in that way an element of double punishment crept into the sentence. Having been punished for his use of the firearm in the armed robbery, the range of sentences open to the sentencing judge was not those for possession associated with criminal activity.[15]
[14][2011] VSCA 84.
[15]Ibid [12] (citations omitted).
Mark submits, correctly, that the possession of the firearm at the point of entry into Gorlin’s house was the aggravating feature for charge 1. No evidence was led by the prosecution about how long Mark had possessed the shotgun, or why, or whether it was associated with any ongoing criminal activity. He contends that the sentence of two years imposed on charge 2, and the six months cumulation, were not open and that the judge contravened the principles set out in Pearce v The Queen,[16] namely, to the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.
[16](1998) 194 CLR 610, 623 [40].
The Crown submits that the judge did not err by doubly punishing Mark Robinson. It submits that the sentence imposed by the judge on the offence of possessing a firearm whilst a prohibited person (charge 2) was within the reasonable range open to him, and relies on further remarks of Redlich JA in Berichon v The Queen[17] on the appropriateness of a higher sentence for firearm possession where the previous criminal history of the offender warrants such a course:
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v R. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[18]
[17](2013) 40 VR 490.
[18]Ibid 496 [26] (citations omitted)(emphasis added).
The Crown submits that it was appropriate for the judge to take into account the significance of Mark’s prior convictions for weapons offences.[19] Only four months before the events on 2 September 2015, in the context of a breach of a suspended sentence, Mark had been sentenced for an aggregate term of five months’ imprisonment (with 80 days pre-sentence detention) having been earlier convicted of possessing a prohibited weapon without exemption or approval, possessing a dangerous article in a public place, and making a threat to kill intending fear. Moreover, before these offences Mark had a significant criminal history and had been convicted of offences involving the possession of a weapon at previous court appearances.
[19]See [19] above.
In my view this ground is not reasonably arguable.
The judge specifically made reference to the test in Meyers concerning the need to avoid double punishment. That test is as follows:
In accordance with the principles stated in Pearce v R, care must be taken in fixing the sentence for aggravated burglary to ensure that the offender is not doubly punished for offences committed after entry into the house. Apart from supporting an inference as to what it was that he intended to do, the seriousness of what took place after the entry cannot affect the sentence on the aggravated burglary charge. The offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for what happens after entry.[20]
[20](2014) 44 VR 486, 503 [71] (citations omitted).
As mentioned,[21] he was well aware that it was necessary for him to sentence Mark conscious of keeping aspects of the criminal offending quite distinct. The judge understood that the problems Mark has with firearms required a sentence to be imposed that would achieve specific deterrence, as can be seen by remarks made during the plea:
There’s a broad relationship here of, unfortunately perhaps, his intellectual deficit, his perhaps paranoia, I don’t know, and his tendency to have firearms. He has got all the hallmarks of a person who could commit a very serious crime. Perhaps he was lucky he didn’t commit a serious crime this time.
[21]See [16] above.
In the sentencing reasons he said:
As to Charge 2 and 3 of which he faces, Verdins principles also seem to me to lead to the need for a moderation of the effecting of the principle of general deterrence. Balanced against such, of course, must be the notation of his prior offences, for being in possession of prohibited weapons, requiring one to look more closely at the need for specific deterrence in regard to such crimes.[22]
[22]Sentencing reasons [46].
Mark’s substantial previous history of weapons offences rendered it within range for the judge to impose a sentence of two years for charge 2, with six months’ cumulation, to reflect the distinct character of the criminal culpability associated with possession of the firearm as a prohibited person by contrast with the possession of the firearm as an element of the offence of aggravated burglary within the context of s 77 of the Crimes Act.
I refuse leave to appeal with respect to ground 1.
Ground 2 – taking into account irrelevant matters
Mark Robinson submits that, notwithstanding his counsel taking objection to the reference in Gorlin’s victim impact statement to having the shotgun held to his head, in accordance with her obligations,[23] the judge referred to that passage in his sentencing reasons.
[23]See Luciano v The Queen (2015) 45 VR 844, 848 [10] (Redlich and Beach JJA): ‘Counsel’s obligations include taking objection to those parts of victim impact statements that are said to be inadmissible.’
There was no mention of Gorlin having the gun held to his head in the Crown opening. The judge raised the point when the prosecutor was reading that part of the victim impact statement. The prosecutor agreed that it should be disregarded and defence counsel made her objection. The exchange was as follows:
HIS HONOUR: There’s nothing in your opening about that being held to his head.
PROSECUTOR: No.
HIS HONOUR: Do I disregard that?
PROSECUTOR: Yes.
DEFENCE COUNSEL: I’m – be submitting that. Yes, Your Honour.
HIS HONOUR: Yes.
PROSECUTOR: No. The only reference was, well, the sound of the bullet passing.
HIS HONOUR: Again, in the broad – yes.
Notwithstanding this exchange, the judge included the following in his sentencing reasons:
Insofar as the victim impact statement itself is concerned, Exhibit E, it seemed to me that nothing contained therein, as written by Mr Walter Gorlin, was inappropriate or unreasonable. …
On p 3 of the victim impact statement Mr Gorlin said: ‘Having a sawn-off shotgun held to your head in front of your child and have the gun go off and having the loud,’ it says ‘load’ but I assume it means loud noise, ‘ringing through your ears and going into a state of shock, not knowing if the side of your head is missing, is an experience I can't put into words and I relive the event every night. I have been to cancelling,’ I assume he means counselling, ‘and am seeing a psychologist who has diagnosed me with a severe case of trauma. I suffer from anxiety and paranoia. … My wife suffers every day, scared to be home alone.’
…
As I say there was no suggestion by any counsel that there was anything inappropriate about these reactions, as expressed by the victim. What I have read indicates, I think, that his reactions, are consistent with what one would expect of a person who went through an experience such as this.[24]
[24]Sentencing reasons [27]-[28], [31].
Mark Robinson submits that this amounts to a specific error that led to the imposition of a greater sentence than would otherwise have been imposed.
In a recent supplementary submission, the Crown concedes the specific error.
In my view, the Crown’s concession is appropriate. It is reasonably arguable that the judge took into account matters in the Victim Impact Statement that were not agreed facts; that is, it is reasonably arguable that the judge took into account facts about the nature of the offending which were not reflected in the Crown’s Opening on the basis of which Mark Robinson had pleaded guilty.
I would grant leave to appeal with respect to ground 2.
Additional specific error
Furthermore, the Crown asserts, in its supplementary submission, that the judge referred to the firing of the shotgun as an aggravating feature of the offence of aggravated burglary and that this was an additional specific error. The extract from the sentencing reasons is set out above.[25]
[25]See [18] above.
The charge in the indictment does not allege that the discharge of the firearm is an aggravating feature of the burglary. Charge 1 is as follows:
CHARGE 1 The Director of Public Prosecution charges that MARK ROBINSON at Greenvale in Victoria on the 2nd day of September 2015 entered as a trespasser a building at [address of victim’s home] with intent to commit an offence involving an assault to a person therein and at the time had with him an offensive weapon namely a firearm and at the time of entering a person was then present in the building and the said MARK ROBINSON knew that a person was then so present or was reckless as to whether or not a person was then so present.
Statement of Offence —Aggravated burglary contrary to s 77 of the Crimes Act1958.
The judge, in treating the discharge of the firearm as an aggravating factor, breached the principle laid down by the High Court in De Simoni v The Queen,[26] that an offender is only to be sentenced in respect of the particular offence to which he or she has pleaded guilty. In Olbrich v The Queen[27] Kirby J reaffirmed the principle:
It is fundamental that the respondent only be sentenced in respect of the particular offence to which he had pleaded guilty and of which he had been convicted. Where there are multiple offences of possible relevance to the facts but the accused has been charged and convicted of one or some only, it is a fundamental error to punish the accused on a basis dependent upon particular circumstances of aggravation which would constitute a different offence of which the accused has not been charged or convicted. If the Crown wishes to secure the punishment of an accused in respect of such aggravated circumstances, it is obliged to lay the charge which would present the guilt of the accused of such offence as an issue for trial. This is a rule of law derived from the basic requirements of fair procedure. This Court has insisted upon it and it has been regularly applied.[28]
[26](1981) 147 CLR 383 (‘De Simoni’).
[27](1999) 199 CLR 270.
[28]Ibid 291 [53] (citations omitted) (Kirby J was in dissent but this was not material to the statement of principle).
The Crown’s supplementary submission records that Mark Robinson was initially charged with 15 offences, including charges of reckless conduct endangering life and reckless conduct endangering serious injury. These two charges were expressly particularised as relating to the discharge of the firearm. The Crown entered into a plea deal with Mark Robinson which is reflected in the indictment charges as they stand. As set out, the charge of aggravated burglary does not rely upon the discharge of the firearm as an aggravating factor. The Crown accepts that, in those circumstances, it was simply not open to the judge to impose a sentence appropriate to an aggravating factor based upon conduct which had previously been the subject of charges but later abandoned by the Crown.
The Crown also accepts that it is regrettable that the Crown did not prevent the judge from falling into such specific error; the relevance of the discharge of the firearm was admissible only on the limited basis that it was part of the surrounding circumstances.
In my view, it is reasonably arguable that the judge has erred by breaching the principle of De Simoni.
The Crown is to be commended for identifying this additional error, although it would clearly have been preferable if the Crown had given the judge the assistance he deserved to avoid the error being made. It would also have been preferable if the Crown had alerted this Court to the error in its initial Written Case rather than by way of supplementary submissions. Be that as it may, the approach taken by the Crown in its supplementary submissions confirms that the Crown is properly discharging its duty to this Court and it is to be commended for doing so.
In those circumstances, leave to appeal should be granted with respect to the additional specific error identified by the Crown.
Ground 3 - procedural fairness
Ground 3 alleges a breach of procedural fairness in that the judge ought to have informed Mark that he was considering rejecting a combination sentence of imprisonment with a Community Correction Order and ought to have given Mark a further opportunity to be heard. The plea had been adjourned from 1 August 2016 to allow reports to be prepared on the suitability of the two prisoners for that course, following an indication from the prosecutor that such a disposition was within range. On the return date (15 December 2016) the Crown provided the judge with DPP v Bowden,[29] in which an offender was re-sentenced by this Court to a harsher sentence for aggravated burglary than imposed at first instance. However, the prosecutor did not indicate any change in the earlier position, although she submitted that any term of imprisonment needed to be at the higher end of the available term. Counsel for the Crown confirmed that Mark had already served pre-sentence detention of 469 days.
[29][2016] VSCA 283 (‘Bowden’). This decision was delivered on 23 November 2016.
Mark Robinson refers to the following statement by Redlich JA in Davey v The Queen:[30]
Procedural fairness must be upheld for its own sake as well as for its consequences. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome. Once procedural unfairness is established, it is no part of this Court’s function to consider the likelihood of his Honour making a different finding or imposing a different sentence if the applicant had been given a further opportunity to make submissions or call further evidence.[31]
[30][2010] VSCA 346.
[31]Ibid [29] (citation omitted). Redlich JA referred to the examination of procedural fairness in Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 512.
He also equates the error in the present case with the situation dealt with by Priest and Santamaria JJA in Beevers v The Queen,[32] in which their Honours held that the rejection by the sentencing judge of an assertion by a prisoner that she had suffered sexual abuse as a mitigating factor, without giving the prisoner an opportunity to be heard or to adduce evidence, amounted to a denial of procedural fairness:
Given that the submission that the applicant had been sexually abused lay at the core of the plea in mitigation; that the judge seemingly accepted the reality of its existence and effects during discussion; and that the prosecution made no challenge to its occurrence; we are in no doubt that the judge denied the applicant procedural fairness in rejecting the fact that it had taken place without giving the applicant notice that he might do so, and inviting further submissions or evidence on the subject. Leave to appeal must thus be granted.[33]
[32][2016] VSCA 271.
[33]Ibid [39].
The Crown says that the judge did not indicate at any time during the plea that he had determined that a combined disposition under s 44(1) of the Sentencing Act was likely. Indeed, when a combined sentence was first raised by Mark’s counsel, the judge expressed concern about Mark’s history, especially his possession of weapons, and the potential risk to society he posed. Those concerns about Mark’s use of a gun, and its discharge during the offending, were repeated by the judge on the adjourned plea. Far from Mark’s counsel being denied an opportunity to address the judge on why a combined disposition was appropriate, she did so in some detail.
Further, the Crown says that the suggestion in the written case filed on behalf of Mark that it was open for the judge to impose a total effective sentence of approximately 3 years and 4 months, which would have equated to pre-sentence detention together with a period of two years from the date of sentence thereby satisfying s 44(1), would not have been appropriate given this Court’s criticism of such an approach.[34]
[34]See DPP v Basic [2016] VSCA 99 [31]-[34] (Weinberg AP, Redlich and Ferguson JJA).
In my view, the judge provided an ample opportunity for the prisoners to make submissions with respect to a suitable sentence. He was under no obligation to provide a further opportunity for them to persuade him that he ought impose a combination sentence when he arrived at the conclusion that such a sentence would be inappropriate. I consider that ground 3 is not reasonably arguable.
I would refuse leave to appeal with respect to ground 3.
Ground 4 – manifest excess
As is apparent from the matters outlined above, Mark has a disability and post-traumatic stress disorder.[35] The judge accepted that these matters enlivened all limbs of the Verdins principles. Mark submits that those matters ought to have been taken into account by the judge as powerful mitigatory factors and resulted in very significant lenience, with a sentence structured to deal with those considerations. The appropriate lenience did not occur.
[35]See [22]-[23] above.
The Crown now concedes that the judge significantly devalued an important factor in mitigation. The judge found that the plea to the offence of aggravated burglary was a ‘valuable’ one. He said:
[Counsel for Mark] further put that I should also accept, and I do, that the plea in particular, in regard to the aggravated burglary, should be seen as a valuable plea. It is to be noted that there was no forced entry here. As best I can understand, one of the twin sons, who was outside when the Robinsons appeared, was asked where his father was. According to the son, he then came in to his father and said someone wants to see him. It was, at or about the time of this discussion, that the Robinsons both entered the premises, by pushing their way into the home, despite an immediate reaction from the victim. This scenario seems to be confirmed from the statement of the son, Joel and the witness Mr Mirdana. Clearly as to the first element of an aggravated burglary, it could have been foreseen that this circumstance as to trespassing could have been canvassed at a trial. It seems to me, therefore that the submission put to the Court that this should be classed as a valuable plea in regard to both Robinsons must be accepted.[36]
[36]Sentencing reasons [49] (emphasis added).
The Crown notes that the finding made by the judge was predicated on Mark Robinson foregoing a valuable defence at trial. This would appear to be the foregoing of the defence that, at the time of entry, the brothers entered at the implied invitation of Gorlin’s son, only to be told after entry by Gorlin to leave. If the defence had been acceded to at trial, only an unlawful trespass carrying a maximum penalty of six months’ imprisonment would have been made out, pursuant to s 9 of the Summary Offences Act 1966. As the Crown submits, not only was the plea valuable, the difference in the nature of the two relevant charges in question was quite fundamental.
I consider that it is reasonably arguable that insufficient weight was given to the value of the plea and, as a consequence, the sentence imposed was manifestly excessive.
I would grant leave to appeal with respect to ground 4.
Conclusion
In the circumstances, this matter should be listed for the hearing of the appeal with respect to grounds 2, 4 and the additional specific error identified by the Crown (the DeSimoni error). If an application for leave to appeal is renewed with respect to grounds 1 and 3, that application ought be heard at the same time as the appeal on the other matters.
It should also be noted that the Crown has accepted that if the specific errors are accepted by the Court, it would be open for this Court to impose a different sentence.
Furthermore, in the event that leave to appeal is granted in respect of Edward Robinson, the appeal in that matter ought be heard by the same bench and at the same time as the appeal by Mark Robinson. If the Court determines to re-sentence Mark Robinson this may have implications for the appropriate sentence to be served by Edward Robinson, particularly, but not only, on the question of parity.
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