McDonald v the Queen
[2013] VSCA 89
•23 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0279
| MARK ALLAN MCDONALD | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | No oral hearing |
| DATE OF JUDGMENT | 23 April 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 89 |
| JUDGMENT APPEALED FROM | DPP v Glouftis and McDonald (Unreported, County Court of Victoria, Judge Hampel, 8 November 2012) |
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CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to one charge of armed robbery — Applicant, together with a co-offender, punched victim repeatedly to the head — Victim robbed of his wallet, mobile phone and watch — Sentencing judge mistakenly proceeded on basis that applicant had no memory of events — Sentencing judge erroneously stated that applicant had approximately 350 prior convictions when true figure was approximately 266 such convictions — Whether sentencing judge erred in not exercising discretion to allow for ‘Renzella time’ — Factual errors had no bearing upon sentence — Sentencing judge appreciated scope of discretion under R v Renzella [1997] 2 VR 88 and took relevant matters into account — Application for leave to appeal refused — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Victoria Legal Aid |
| For the Crown | No appearance | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
HARPER JA:
The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery. He was sentenced on 8 November 2012 to a term of four years’ imprisonment with a non-parole period of two years and nine months. He now seeks leave to appeal against sentence.
The circumstances surrounding this offence may be briefly stated. On the morning of 29 September 2011, the applicant, together with a co-offender, Christopher Glouftis, attacked one Mukesh Shrestha. Mr Shrestha had accompanied an acquaintance to a unit in Braybrook which he understood to be a place where drugs could be purchased. He waited outside while his companion went inside.
The applicant and Glouftis emerged from the unit. They dragged Mr Shrestha inside, and there assaulted him, and robbed him of various items. Both men punched him repeatedly to the head. At one stage, Glouftis produced a knife that was about eight inches in length while the applicant armed himself with a screwdriver that had been sharpened to a point. Glouftis grabbed the victim from behind by the hair and held the knife to his throat. In the meantime, the applicant continued to punch the victim to the head.
Both the applicant and Glouftis searched Mr Shrestha’s pockets whilst continually threatening him with the knife and screwdriver. They took his wallet, which contained $75 in cash, as well as his Nepalese driver’s licence. They also took his mobile telephone and his watch. The applicant and Glouftis then punched and kicked him before pushing him into a toilet, and shutting the door. They told him not to come out. He remained there for some 10 minutes or so before the applicant released him.
Police were called and attended the unit. The applicant was still present. He and Glouftis were arrested. Glouftis was found to be in possession of a small quantity of drugs, and was therefore dealt with for various drug offences as well as for the armed robbery. The applicant was interviewed by police. He acknowledged that he had gone to the unit to buy heroin. He claimed that Mr Shrestha was already at the unit before he arrived, and that he did not know him. He denied having had anything to do with any robbery.
The grounds upon which the applicant seeks to rely are as follows:
Ground 1: The learned sentencing judge erred by stating two mistakes of fact, namely:
a.that counsel for the Applicant had asserted during the plea that the Applicant had instructed that he had no memory of the events, whereas this assertion was only made by the defence counsel for the co-accused Glouftis; and
b.that the Applicant had 'approximately 350 convictions', whereas this issue had been the subject of express written and oral submissions by counsel for the [Applicant]who had asserted 'between 1994 and the date of this offence he had answered about 239 criminal charges in the first instance' (note: during the preparation of this application the actual total has been reckoned at 266).
Ground2: The learned sentencing judge erred by not making at least some reduction or adjustment to the total effective sentence and the non-parole period to reflect interposed "Renzella time" of up to 9 months imprisonment that the Applicant had served for other offences between his arrest on this armed robbery offence and his ultimate sentencing on this armed robbery offence.
In relation to ground 1, the Crown accepts that the sentencing judge did, indeed, fall into error in the two respects identified by the applicant. Her Honour did say, mistakenly, that both the applicant and his co-offender had claimed to have no memory of the offence, whereas it was only Glouftis who had made that claim. In addition, her Honour attributed to the applicant approximately 350 prior convictions, whereas the true position was that he had about 266 such convictions.
The Crown submits that these factual errors were immaterial, and could not have impacted upon the sentence imposed. Alternatively, it submits that, assuming the sentencing discretion miscarried, no different (and lesser) sentence should now be imposed.
In our opinion, the Crown’s submissions regarding these two factual errors should be accepted. What had been put on behalf of the applicant, on the plea, was that his offending had been spontaneous and stupid, and that he had been affected by drugs at the time. It is difficult to see how he could have been better served by being sentenced on that basis, rather than on the mistaken basis that he had no memory of the events at the unit. The difference between these two factual scenarios is marginal at best.
The second factual error cannot conceivably have had any bearing upon this sentence. There is no relevant distinction to be drawn between an accused who has approximately 350 prior convictions, and one who has a ‘mere’ 266 such convictions. Indeed, this particular error was so inconsequential that it should not have formed the basis of any proposed ground of appeal.
Ground 1 is not reasonably arguable. Leave to appeal should be refused in relation to that ground.
As regards ground 2, it should be understood that the sentencing judge gave careful consideration as to whether to grant the applicant some discount on his sentence based upon ‘Renzella time’.[1] It seems that whilst on remand for the armed robbery that is the subject of this application, he was also serving a sentence imposed in the Magistrates’ Court for various unrelated offences. Accordingly, he was not eligible for any pre-sentence detention in relation to that period.
[1]R v Renzella [1997] 2 VR 88 (’Renzella’).
The sentencing judge decided, in the exercise of her discretion, not to allocate any Renzella time. The issue of whether to grant the applicant the benefit of such time was squarely raised during the course of the plea. Her Honour gave reasons for declining to do so. She indicated that she understood full well that one approach that was available to her was to undertake a hypothetical exercise as though she were sentencing the applicant not only for the armed robbery, but also for the various matters in respect of which he had previously been sentenced in the Magistrates’ Court. She took into account the nature of those matters, and the fact that they involved offences that had been committed prior to the commission of the armed robbery. Tellingly, those offences were committed whilst the applicant was on bail for still other matters.
It was common ground that the applicant committed this armed robbery whilst on two separate sets of bail. As such, the Crown submitted, s 16(3C) of the Sentencing Act 1991 was applicable, and should be regarded as qualifying the operation of the principle of totality in this case. It was entirely appropriate, so it was said, that the sentence for armed robbery should be wholly cumulative upon the term of imprisonment imposed for the earlier offences. There was no obligation, in these circumstances, to grant the applicant any reduction by way of a Renzella discount.
Finally, the Crown submitted that the armed robbery was a particularly nasty offence. Moreover, it represented what seemed to be escalating offending on the part of the applicant. On any view, the sentence imposed should be viewed as moderate in the circumstances.
We accept the Crown’s submissions in this regard. Ground 2 does not warrant the grant of leave to appeal.
There is, however, one matter to which attention must be given. The sentencing judge declared a period of 188 days pre-sentence detention. Both parties agree that that figure was erroneous. In fact, the figure should have been 194 days. The applicant is entitled to have the additional six days of pre-sentence detention declared. This Court has the power, pursuant to s 412 of the Criminal Procedure Act 2009,[2] to rectify the error made below
[2]See Zamfirescu v The Queen [2012] VSCA 157 where this was the approach taken (following agreement by the parties that s 412 was the appropriate provision) to remedying an error in the calculation of pre-sentence detention.
Accordingly, we would order that the pre-sentence detention declaration of 188 days be amended to reflect the fact that the applicant had served 194 days pre-sentence detention as at the date of sentence.
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