Markovski v The Queen
[2011] VSCA 393
•16 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0212
| PETER MARKOVSKI |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | MAXWELL P and BONGIORNO JA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 16 November 2011 | |
| DATE OF JUDGMENT | 16 November 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 393 | |
| JUDGMENT APPEALED FROM | DPP v Markovski (Unreported, County Court of Victoria, Judge Wood, 12 August 2011) | |
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CRIMINAL LAW – Appeal – Sentence – Common assault – Irrelevant consideration – Judge took into account adverse matter struck out of prosecution opening – Appeal allowed – Appellant resentenced – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M E Regan | Victoria Legal Aid |
| For the Respondent | Mr M Roper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
This is an application for leave to appeal against sentence. For reasons which follow, I would grant leave to appeal and allow the appeal and re‑sentence the appellant to time served, that is to say, I would suspend the remaining portion of the sentence. I would also reduce the head sentence, but that does not affect the result. There should be no more time in actual custody than has been served.
The applicant pleaded guilty to one count of common assault, which carries a maximum of 5 years’ imprisonment. He was sentenced to 12 months’ imprisonment, 6 months of which was wholly suspended for 12 months.
The circumstances of the offending are not in issue. They are set out in the applicant’s written case as follows:
Peter Markovski was 42 years old at the time of the offending.
On Monday 11 October 2010 at approximately 4:50pm the applicant attended Epping Plaza Car Park.
The victim had been shopping at Epping Plaza and had walked back to her car alone. The victim got into the driver’s seat, put the keys into the ignition and was checking her phone when she heard the back passenger driver’s side door open. The victim looked around and saw the applicant sitting behind her.
The victim felt something press against the back of her left shoulder and heard the applicant say ‘shut up and drive’. The victim opened the driver’s door, jumped out of the car and ran towards the plaza.
When the victim reached the kerb she turned about and saw the applicant getting out of the car and putting something down the back of his pants.
The applicant walked past the victim and into the plaza and the victim returned to her car and called police.
As the applicant walked through the plaza he discarded the cap he was wearing in a bin. Whilst walking out of the plaza the offender shielded his face from the cameras with his hands.
At approximately 5:30pm police observed the applicant walking along Cooper Street, Epping towards the train station. As police conducted a u-turn the applicant began running towards the station.
Police intercepted and arrested the applicant who was searched. In the applicant’s possession police located several item including one splinter of blue painted wood approximately 15 centimetres long and one flat piece of metal approximately 10 centimetres long.
In his interview with police the applicant made no comment.
The defence conceded that, in the light of the applicant’s prior history, the offence merited a sentence of imprisonment but submitted that because the offence was essentially constituted by the applicant’s bizarre uninvited entry into the back seat of the victim's car and a request that she drive, in all of the circumstances a wholly suspended sentence was appropriate. The prosecution had submitted that ‘a sentence of between one and two years’ imprisonment, part of which must be served immediately, was appropriate’.
The revised sentencing reasons, which are before the Court, contain the following passage:
The circumstances of your offending are as follows. At the time of the offending in October last year, you were 42 years of age. On that day, being a Monday, at about 4.50 pm in the afternoon, you attended the Epping Plaza car park and selected a victim, the lady I have identified who, as I say, was then aged 28 as your target. You have said in your conversation with police that she did not have children with her and that was a factor in your decision to select her.
The victim had been shopping at Epping Plaza and had walked back and got into a car. She got into the driver's seat, placed the keys in the ignition and was checking her phone when she heard the back door of her car on the side behind her - that is to say, behind the driver's seat - she heard the door open. She looked around and she saw you sitting behind her.
She felt something press against the back of her left shoulder and you said "shut up and drive". The victim opened the driver's door, jumped out of the car and run towards the plaza.
Is something wrong?
[PROSECUTOR]: Sorry sir, Your Honour referred to a statement that was in the initial opening made by the offender that was no longer alleged in the opening that was filed over. The statement of the comments to the police that were not confirmed on tape.
HIS HONOUR: Let me just check that.
[DEFENCE COUNSEL]: The matter was subject of a large amount of discussion between the parties, Your Honour.
HIS HONOUR: Let me just check it.
[DEFENCE COUNSEL]: And further to my email to Your Honour’s associate, I confirmed that because the passages that Your Honour has just relied upon were inadmissible - - -
HIS HONOUR: Just a second, just a second. I am trying to find it. Sorry what paragraph do you say I have incorrectly stated?
[DEFENCE COUNSEL]: Well, Your Honour, there were a number of iterations of the Crown opening in existence. The final settled iteration did not include reference to the field interview because the field interview was not adopted on tape and was not admissible.
HIS HONOUR: I apologise.
[DEFENCE COUNSEL]: So therefore, Your Honour, the remarks that Your Honour has put on transcript such as selected a target and did not have any children with her are inadmissible and were not relied upon by the Crown and I confirmed that on email.
HIS HONOUR: Yes, well I will correct that. The start the circumstances - - -
[DEFENCE COUNSEL]: I have no further problem Your Honour because now that you have been alerted to the problem, I see no difficulty with a trial judge or a plea judge reformulating instanter. There is no problem with that, sir.
HIS HONOUR: Thank you.
I continue. The victim opened her driver's door and jumped out of the car and ran towards the plaza. When she reached the curb, she turned around and saw you getting out of the car and putting something down the back of your pants. You then walked past the victim, into the plaza and the victim returned to her car and called the police.[1]
[1]DPP v Markovski (Unreported, County Court of Victoria, Judge Wood, 12 August 2011), [6]–[22] (emphasis added).
The complaint relates to the highlighted sentence. It is common ground ‑ indeed, the prosecutor pointed this out ‑ that that was not a matter that the judge was entitled to take into account. As the extract records, it was pointed out by defence counsel that he had alerted the judge’s chambers, by email the previous afternoon, that the alleged basis of selection of this victim as a target was not a relevant matter.
As also appears, defence counsel said that he was content, now that the matter had been again flagged, with his Honour reformulating the sentence there and then. The difficulty, it seems to me, is that there is no sign from the balance of the reasons that there was any reconsideration of the decision which his Honour had evidently come to before he embarked on delivering the reasons. It is likewise apparent that the sentencing decision had been made on the basis of the inadmissible matter, since his Honour had stated it in the reasons before the interruption occurred.
It is unnecessary, I think, to decide whether there had to be a change in the sentence once the irrelevant matter was excluded. It is enough that one could not say with any confidence that the irrelevant matter made no difference at all to the result. The position might have been different if his Honour had said in clear terms, ‘I have reconsidered my approach to this sentence, it having been pointed out that I had taken into account an inadmissible matter.’ That did not, however, occur.
None of this is meant to impose unreasonable burdens on busy sentencing judges, but the point is undoubtedly a proper one to have been raised. If I might say so, it is a commendable position that Mr Roper, for the prosecution, has taken. He indicated to the Court that the Crown would not seek to defend what had happened, which he acknowledged was unsatisfactory.
The taking into account of an irrelevant consideration is sufficient to reopen the sentencing discretion, without it being necessary to decide the separate ground of manifest excess. There was, nevertheless, real force in that contention, having regard to what must be viewed as the relatively low degree of criminality involved in the conduct. I do not mean for a moment to diminish the terrifying consequence for the victim, but it was a very, very brief episode which came to an end almost as soon as it had started. I am mindful of comparable sentencing for the offence of aggravated burglary, which carries a maximum five times the maximum applicable here and commonly attracts sentences of two years or less. It might have been
difficult, had it been necessary, for the Crown to defend a sentence of 12 months for a low-level assault.
In re‑sentencing, I take into account the personal circumstances of the applicant, including his difficult background, but also – as the judge rightly did – the prior conviction for intentionally causing injury. In mitigation, I would accept what was said on behalf of the applicant, that there was an interaction of prescription medication with alcohol which put this into a somewhat different category from earlier alcohol-related offending.
In the circumstances, it seems to me that the appropriate sentence would be a sentence of nine months, the balance of which should be suspended.
BONGIORNO JA:
I agree, for the reasons which the President has given.
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