McGuigan v The Queen

[2012] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0035
LEE McGUIGAN	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH JA, COGHLAN and MACAULAY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 June 2011
DATE OF JUDGMENT	13 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 121
JUDGMENT APPEALED FROM	DPP v McGuigan (Unreported, County Court of Victoria, Judge Duckett, 3 February 2010)

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CRIMINAL LAW – Sentencing – Youthful offender sentenced to 21 years and four months’ imprisonment – Armed robbery – Intentionally causing serious injury – Whether offences committed over short period compounded degree of criminality – Whether mitigating influence of youth extinguished because of seriousness of criminality – Early guilty pleas – Remorse and contrition – Realistic prospect of rehabilitation – Whether sentence manifestly excessive – Principle of totality applied – Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372 applied – Appeal allowed – Re-sentenced to 16 years and six months with a non-parole period of 12 years and six months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC with Mr G Meredith	Greg Thomas Barristers & Solicitors
For the Crown	Mr J D McArdle QC with Mr P Kidd	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. I have had the advantage of reading in draft the reasons of Macaulay AJA and agree that the appeal should be allowed and the appellant re-sentenced as he proposes.

COGHLAN AJA:

1. I also have had the opportunity to read the draft reasons of Macaulay AJA and agree the appeal should be allowed and that the appellant be re-sentenced as his Honour proposes. 

MACAULAY AJA:

1. The sole issue in this appeal is whether the sentence passed upon the appellant, Lee Anthony McGuigan by the County Court of Victoria on 3 February 2010 was manifestly excessive.[1]  In a spree of offending over five nights spanning an eight day period, McGuigan, who was 19 years of age at the time, committed nine armed robberies and three attempted armed robberies, accompanied by six offences of intentionally causing serious injury and one of unlawful imprisonment.  He was sentenced for the 19 resulting charges to a total effective sentence of 21 years and four months’ imprisonment with a non-parole period of 18 years. 

   [1]A further ground of breach of the parity principle was not argued.

1. This appeal was heard concurrently with the appeals in Azzopardi, Baltatzis &Gabriel v The Queen[2] because it was considered that this appeal raises the same or similar principles raised in those cases.  That is, it raises questions whether the mitigating influence of youth is expunged because of the extent and seriousness of the offender’s criminality, and the application of a proper understanding of the principle of totality to the circumstances of this case. 

[2][2011] VSCA 372 (‘Azzopardi’).

1. In these reasons there is no need to revisit the statement of principles set out on those questions in Azzopardi, but rather, to apply them. 

Charges and sentences

1. McGuigan pleaded guilty in the County Court to the 19 counts[3] relating to offences which he committed on five evenings between 29 March 2008 and 6 April 2008. All offences were committed in the company of one or more co-offenders.  Each of the co-offenders was dealt with and sentenced in the Children’s Court.  In the circumstances of this case it has not been contended that their sentences should have any bearing on the consideration of whether the sentence passed on McGuigan was just, and I say no more about them.

   [3]Charged on two presentments, presentments Y00558188 (‘the first presentment’) and X00889314 (‘the second presentment’):  nine armed robberies – counts 1, 3, 7, 8, 10, 11, 15, 16 and 18 of the first presentment;  three attempted armed robberies – counts 5 and 13 of the first presentment and count 1 of the second presentment;  six cause serious injury intentionally – counts 2, 6, 9, 12, 14 and 17 of the first presentment;  and, one false imprisonment – count 4 of the first presentment.

1. The composition of McGuigan’s sentence was as follows:

Table of Appellant’s Sentence

Presentment 1:	Y00558188
Count	Date	Offence	Maximum Penalty	Sentence & (Cumulation)
1st incident 1 2	29/3/2008	Armed robbery	25	4 yrs (1 yr)
	29/3/2008	Causing serious injury intentionally	20	3 yrs (6 months)
2nd incident 3 4	29/3/2008	Armed robbery	25	4 yrs (1 yr)
	29/3/2008	False imprisonment	10	1 yr (3 months)
3rd incident 5 6	1/4/2008	Attempted armed robbery	25	4 yrs (2 yrs)
	1/4/2008	Causing serious injury intentionally	20	3 yrs (1 yr)
5th incident  7	2/4/2008	Armed robbery	25	2 yrs (3 months)
4th incident  8 9 10	2/4/2008	Armed robbery	25	4 yrs (1 yr)
	2/4/2008	Causing serious injury intentionally	20	5 yrs
	2/4/2008	Armed robbery	25	3 yrs (9 months)
6th incident  11 12	2/4/2008	Armed robbery	25	4 yrs (1 yr)
	2/4/2008	Causing serious injury intentionally	20	5 yrs (3 yrs)
7th incident 13 14 15	2/4/2008	Attempted armed robbery	20	4 yrs (3 months)
	2/4/2008	Causing serious injury intentionally	20	5 yrs (2 yrs)
	2/4/2008	Armed robbery	25	2 yrs (1 month)
8th incident 16 17 18	4/4/2008	Armed robbery	25	3 yrs (6 months)
	4/4/2008	Causing serious injury intentionally	20	4 yrs (1 yr)
	4/4/2008	Armed robbery	25	2 yrs (3 months)
Presentment 2:	X00889314
9th incident 1	6/4/2008	Attempted armed robbery	20	3 yrs (6 months)
Total effective sentence Non-parole period	21 years and 4 months’ imprisonment 18 years

Factual background to the offences

1. The circumstances which brought McGuigan before the Court are not in dispute.  Most of the 19 offences were committed in substantially similar circumstances.  The offences arise from nine separate incidents over the five evenings.  The majority of the 13 or so victims involved in these armed robberies were confronted and attacked by McGuigan and his co-offender(s) when they were alone on the street, usually late in the evening or very early in the morning.

1. Eight of the nine incidents involved, in total, five or six offenders.  Only McGuigan and one other offender were involved in all eight incidents.  McGuigan was the oldest amongst them.  The ninth incident involved a larger gang.

1. The incidents generally followed a similar pattern.  McGuigan and his various co-offenders drove around parts of the eastern suburbs of Melbourne late at night or in the early hours of the morning.  Upon finding a vulnerable victim or victims, McGuigan and his co-offenders, armed with one or more life threatening weapons including a claw hammer, iron bar, box cutter and meat cleaver, would confront and rob (or attempt to rob) the victims. 

1. Four incidents involved McGuigan hitting the victims in the head with a claw hammer or a meat cleaver and two incidents involved McGuigan slashing the victims’ faces with a box cutter.  On several occasions, McGuigan and his co-offender(s) inflicted gratuitous violence on their victims after the victims had already complied with their demands or were otherwise not resisting.

1. I will briefly summarise the nine incidents.

29 March 2008 – Counts 1–4 of the First Presentment

1. The conduct relating to counts 1 and 2 occurred in the early hours of 29 March 2008.  At approximately 5.00am, McGuigan and two co-offenders, having driven around the Chadstone area, spotted De Silva (28 year old male) walking alone towards Jordanville train station.  McGuigan, armed with a claw hammer, and two co-offenders, one armed with an iron bar, emerged from their vehicle and confronted De Silva.  McGuigan grabbed the victim by his shirt while a co-offender struck him to the back of his head with an iron bar.  McGuigan then struck him again with the claw hammer, causing him to fall to the ground.

1. Whilst De Silva was lying on the ground, his clothes were searched and his wallet, mobile phone and a gold chain around his neck were taken.  Some of the offenders then punched or kicked him while he was on the ground before driving off in search of their next victim.  De Silva attended the Monash Medical Centre later that morning and was found to have sustained a number of injuries including, a right temporal skull skin laceration of 2.5 centimetres which required sutures.  De Silva was also required to undergo a number of tests and scans to exclude the possibilities of brain injury.

1. Approximately 12 minutes later, the offenders spotted their next victim, Paul Beresford (19 year old male), walking alone along Huntingdale Road in Mount Waverley, only a short distance from where counts 1 and 2 were committed.  The offenders decided to rob him.

1. McGuigan approached the victim and demanded he give over his wallet.  One of the co-offenders grabbed Beresford’s satchel and a plastic bag and started to search through them.  McGuigan kept hold of Beresford’s shoulder whilst brandishing the claw hammer in his face.  After searching his bags and his person, the offenders took his wallet and mobile phone.  One of the offenders located a Commonwealth Bank key card inside his wallet and demanded cash from his account.

1. Beresford was ushered into their vehicle.  At one point during the trip, McGuigan threatened to ‘put the hammer into [his] skull’ if he did not comply.

1. The offenders drove him to the nearest ATM where Beresford initially withdrew three hundred dollars.  McGuigan said that if Beresford did not obtain a transaction receipt he would put a knife through Beresford’s throat.  Beresford complied.  He was told to withdraw another three hundred dollars as the receipt showed that he had $2,800 in his account.  The offenders took the cash and then demanded that Beresford to come back to their vehicle.

1. The course of events was interrupted by the arrival of an unrelated person.  The offenders drove off leaving Beresford behind.  This incident was the subject of counts 3 and 4.

1 April 2008 – Counts 5 & 6 of the First Presentment

1. At approximately 10:30pm on 1 April 2008, McGuigan and two co-offenders pulled up in a driveway of a residence in Glen Waverley.  That residence belonged to Nedin Talic’s parents.  At that time, Talic (24 year old male) was standing outside the residence speaking on his mobile phone.  The offenders approached Talic and asked if he had a wallet.  McGuigan, armed with a claw hammer repeated his demand.

1. Without another word being spoken, McGuigan struck Talic in the face with the claw hammer causing him to stumble backwards.  Talic immediately felt blood running down his neck and ran into the house to contact police.

1. Initially taken to the Monash Medical Centre, Talic later attended his general practitioner where, on examination, he was found to have sustained bruising and laceration to the left side of his jaw which required sutures.  X-rays revealed an undisplaced fracture on the left side of his jaw.

2 April 2008 – Counts 7 – 15 of the First Presentment

1. At approximately 10:50pm on Wednesday 2 April 2008, McGuigan and two co-offenders were in a vehicle driving around the Glen Waverley area when they saw a male (Bo Hua Li) and a female (Tina Zhang Fang) walking away from the train station.  All three offenders, armed with box cutters emerged from the vehicle.

1. McGuigan reached Li first and, putting his arm around his neck, demanded money from him.  One of the offenders pointed the knife at Fang telling her not to shout and demanded that she produce her wallet.  Fang handed over some cash to the offender.  Meanwhile, McGuigan took $60 out of Li’s wallet and threw the wallet on the ground.

1. McGuigan then grabbed Li by the hair and slashed his face with the box cutter slowly and deliberately.  Before McGuigan walked away, he told Li to kneel on the ground.  Some of the offenders then struck and kicked Li while he was kneeling on the ground.  Shortly after, all three offenders got into their vehicle and drove off.

1. Li was taken to hospital by paramedics and was found to have sustained an extensive laceration of ten centimetres to the left side of his face from the angle near his mouth to his left ear, which required nine sutures.  This incident was the subject of counts 8–10.

1. The offenders then committed three more armed robberies together that night.

1. Next (count 7) was against a young man, Yibin He (18 year old) who was walking alone along a laneway leading from Glen Waverley train station while speaking on his mobile phone.  McGuigan came up to He and pressed the box cutter against his neck while one of co-offenders snatched the mobile phone from his hands.

1. About $10 in cash and coins was taken from He’s wallet and He was warned not to report the incident to police or they would come after him.  The offenders then left him and walked off. 

1. The next armed robbery (counts 11 and 12) was committed at approximately 11:15pm against Jamal Ayass (27 year old male), walking alone along Ferntree Gully Road.  McGuigan slashed Ayass across the left side of his face (from just below his left ear to under the centre of his bottom lip) with the box cutter after he had handed over $40 cash to McGuigan.  The injury caused him to bleed profusely.

1. One of the offenders picked up Ayass’ mobile phone from the ground and all three offenders ran from the scene.

1. Ayass was taken to Monash Medical Centre in Clayton and was found to have sustained a deep laceration of 20 centimetres to the left side of his face.  Whilst at Monash Medical Centre, his blood pressure dropped significantly which caused tachycardia.  He was resuscitated with intravenous fluids and transferred to Dandenong Public Hospital where he underwent surgery to repair the laceration.  At the hospital, Ayass had 45 sutures inserted and underwent plastic surgery in an endeavour to repair the damage to his face.  Ayass also suffered a damaged nerve under his lip.

1. In the last armed robbery on that evening (counts 13, 14 and 15), McGuigan, armed with a claw hammer and three co-offenders approached a group of four young persons (Karl Muller, Christopher O’Neill, Ashleigh Starr and Emma Acciarito), waiting at a bus stop in Cheltenham.  One of the offenders produced a box cutter and held it against Muller’s face and demanded money from the group.  Before Muller had time to reach for his wallet, McGuigan struck him with the claw hammer to the left side of his face causing him to stagger.

1. In the meantime, the two females were told to hand over their wallets and ‘drop the phone’.  The demands were accompanied by threats of violence.  The offender who originally held a knife to Muller’s face then approached O’Neill and demanded money from him.  Whilst O’Neill was reaching for his wallet, the offender reached out towards him and slashed his jaw with the box cutter.  O’Neill threw his wallet on to the ground which was picked up by one of the offenders.

1. A police vehicle arrived at this time for an unrelated matter.  The offenders quickly ran off after sighting the police vehicle.

1. Muller was taken to Alfred Hospital by paramedics.  As a result of this attack, Muller suffered some serious facial injuries including two cuts to his left eye area, a fracture of the bridge of his nose, two fractures of the cheekbone, bleeding in the back of his eye and swollen lip and gum.  Muller was required to undergo plastic surgery to repair the lacerations around his eye and the fracture to his nose. 

4 April 2008 – Counts 16–18 of the First Presentment

1. Two days later, on Friday 4 April 2008 at approximately 2:45am, Adam Elsworth (27 year old male) and Christopher Thomas (28 year old male) were walking along Burwood Highway, Ferntree Gully.  McGuigan and a co-offender, armed with a meat cleaver and a claw hammer respectively, emerged from the dark and jumped in front of the two men.

1. McGuigan approached Elsworth and grabbed him by his T-shirt and demanded money from him.  McGuigan then approached Thomas saying, ‘give me your money or I’ll hit you’ while brandishing the meat cleaver.  Thomas was pushed to the ground by McGuigan while attempting to run away.  Whilst he was lying on the ground with his arms pinned to the road, McGuigan swung the meat cleaver at him, hitting him on his left arm.  McGuigan demanded his wallet, and as Thomas was retrieving his wallet from his pocket, McGuigan continued to strike him ‘all over’ with the meat cleaver.

1. A security guard who witnessed this incident attempted to contact the police but was warned away by the co-offender who struck his security vehicle with the claw hammer.  Shortly after, both offenders got into a waiting vehicle and drove off with two other males.  The security guard returned to assist the victims after the offenders had left the scene.

1. Thomas sustained a three centimetre incision to the muscle layer on the left forearm, a fracture to the left wrist/forearm, lacerations to the left hand and left cheek and swelling to the left lower lip. 

6 April 2008 – Count 1 of the Second Presentment

1. On the evening of 5 April 2008, an altercation broke out between two groups of men in the city.  When the altercation broke up, members of one group including McGuigan, drove by the other group, and threatened, ‘we’re going to fuck you up’. 

1. Whilst the second group was later waiting for taxis in Collins Street, McGuigan’s group came running towards them, yelling ‘you fucked up my friends.  We’re going to fuck you up.’  An altercation again ensued between the two groups.

1. During the altercation, McGuigan was armed with a box cutter.  He and others demanded that the victims each hand over their wallets.  When the victim group retreated into Sofitel Hotel foyer, McGuigan and other members of his group followed them.  Police were called.  McGuigan was later apprehended by police and the box cutter was located in a wheelie bin in the vicinity of the altercation.

Whether the sentence was manifestly excessive

1. The proper approach for considering the ground of manifest excess was stated by Maxwell P (Eames JA and Habersberger AJA agreeing) in R v Abbott[4] in these terms:

… the ground of manifest excess is not an occasion on which to re-argue the plea in mitigation.  The ground of manifest excess will only succeed where it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[5]

[4](2007) 170 A Crim R 306.

[5]Ibid [13] (citations omitted).

1. It follows that an appellate court must consider the reasonable range open to a sentencing judge for the offences committed by the particular offender in the particular circumstances. Those circumstances are not merely the nature of the offending itself, but include all of the factors pertinent to the sentencing judge’s task including the factors to which a court must have regard listed in s 5(2) of the Sentencing Act 1991 (Vic).

1. In this appeal it was urged on behalf of McGuigan that the circumstances relevant to his offending for the purpose of assessing whether the sentence passed was manifestly excessive, were that:

(a)whilst serious and attended by gratuitous violence, the offences were characterised as immature, unprofessional and unsophisticated street crime;

(b)the offences were committed in a short space of time – only one week – which the sentencing judge wrongly regarded as an aggravating feature;

(c)McGuigan was a young man at the time of offending, had a deprived background and committed the offences whilst under the influence of drugs and alcohol; and

(d) McGuigan pleaded guilty to all charges and ought to have received a discernible discount for doing so.

1. Placed in this context, McGuigan argued that the sentence passed for what were unquestionably serious offences was nevertheless outside of the reasonable range available to a sentencing judge.  Although only one or two of the specific sentences were criticised by McGuigan as appearing to be individually excessive, the real thrust of the submission on appeal was that the sentencing judge failed to properly apply the totality principle, in all the circumstances, and in so doing passed a crushing sentence. 

Nature of offences

1. McGuigan’s characterisation of the offences as being ‘immature’ or ‘unprofessional’ was, as I understood it, predominantly a characterisation designed to attract those sentencing considerations that account for the youth of the offender.  In other words, it was submitted that the nature of the offending was consistent with or characteristic of offending typically carried out by young offenders.  Along with other features personal to McGuigan, it was argued that this characterisation warranted his youthfulness being accorded an important sentencing consideration. 

1. The ‘street crime’ nature of the offending, of itself, is not of great assistance in determining the weight to be given to the youth of the offender.  I take the true relationship between the nature of offending and the significance to be attached to the offender’s youth to be as stated by Redlich JA in Azzopardi:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.[6]

[6][2011] VSCA 372, [44].

1. The offences committed by McGuigan were unsophisticated in nature in the sense that they required little or no planning, were carried out with weapons that were simply household implements used violently, and were targeted at relatively minor property items (pocket cash and mobile phones).  But, what is really in issue here is whether, because of the required focus to be given to other sentencing considerations, the degree of criminality involved demands that less weight be attached to the mitigating effects of McGuigan’s youth. 

1. The learned sentencing judge addressed the balance between the mitigating effects of youth and the degree of criminality involved in the offending, after dismissing the application of R v Verdins[7] principles to the case, in this way:

… it is my determination that the principal consideration in relation to your sentencing is the need to protect the community from similar offending against other members of the community who are responsibly going about their day to day business.  I note that I expressed a contrary view at the plea hearing.  I have reconsidered that view.  In most cases you were able to obtain a small sum of money and/or a mobile phone.  In many cases you gratuitously inflicted serious injury and scarring on a victim who had already handed over the property demanded by you and your co-offenders.  That places you in an exceptional group of offenders.  That also calls for a measure of retribution for your criminal conduct.[8]

[7]169 A Crim R 581.

[8]DPP v McGuigan (Unreported, County Court of Victoria, Duckett J, 3 February 2010) [35].

1. With respect, the sentencing judge was correct in my view to focus on the gratuitous nature of the violence inflicted by McGuigan upon several of his victims as a major determinant of the degree of criminality involved.  The reference to having expressed a contrary view at the plea hearing appears to be a reference to a comment made by his Honour[9] to the effect that he did not consider the dictates of s 6D of the Sentencing Act, warranting protection of the community as the principal purpose of sentencing, to apply to a 21 year old (that is, to McGuigan).  I take his reconsideration to mean that his Honour had, upon reflection, regarded the nature of the offending, particularly the gratuitous nature of some of the violence, to be so grave as to reduce the mitigatory effect normally attributed to the young age of the offender.  He did so by according greater primacy to other sentencing considerations, in this case, community protection and retribution.

   [9]Transcript of Proceedings, DPP v McGuigan (Unreported, County Court of Victoria, Duckett J, 4 December 2009) 21.

1. In principle, such an approach was without fault.

1. As the Crown submits, there were other factors which are also to be taken into account with respect to McGuigan’s degree of criminality in his offending.  They include the fact (as will appear below) that, at the time he committed the offences, he was on parole for an earlier sentence of detention imposed for intentionally causing serious injury.  Further, as the sentencing judge found, being oldest of the group of offenders, sometimes up to five, McGuigan was likely to have been the effective leader on each occasion of offending.

Duration of offending

1. In his sentencing remarks the sentencing judge said that he regarded the fact that the 19 offences were committed over a short period of time – eight days – as compounding the criminality of McGuigan.  It is interesting to pose the question:  compared with what? 

1. One may compare the facts of this case with the circumstances in Azzopardi which involved 46 counts of armed street robbery by youthful offenders over a six week period.  Is the degree of criminality involved greater or lesser by reason of the offences being committed intensively, in a short duration, or with less frequency over a longer duration?

1. Intuitively, one might consider that the longer the duration over which criminal behaviour occurs the greater the degree of criminality.  This is not simply a function of the mere number of offences.  It is the recognition that a greater period of time allows more time for consideration and may imply a greater degree of conscious deliberation in the commission of offences.  Put differently, a longer duration might also exclude the likelihood of an acute crisis or condition of a mitigatory nature playing a role in the commission of the offences.

1. In McGuigan’s case it was submitted that not only were his offences committed in a very short space of time, but they were committed whilst he was living in transient circumstances under the disinhibiting effect of prescription medications and alcohol to the point where he could not recall much of what had occurred.  The evidence of the role played by medication and alcohol comes only from what McGuigan himself told Gina Cidoni a psychologist whose report was tendered on the plea.  However, that evidence does not appear to be challenged or contradicted by other evidence.

1. Certainly the conduct of McGuigan has the appearance, at times, of a frenzy of offending.  Particularly is that so on the night of 2 April which gave rise to nine of the 18 counts and four of the nine incidents, including the two incidents when McGuigan slashed the cheeks of victims with a box cutter. 

1. However that frenzied nature, when associated with the evidence of alcohol and drug abuse, tends to justify viewing the several offences as less divisible parts of a total criminality than would be the case if they were less connected in time and circumstance.

1. In the circumstances of this case it is not clear why the short duration over which the offending occurred should have been seen as compounding the criminality of McGuigan.

Personal circumstances

1. Evidence of McGuigan’s background and personal circumstances was taken principally from the report of his psychologist, Ms Gina Cidoni dated 11 December 2009 (and to an earlier report of Bernard Healey in 2007 to which Ms Cidoni made reference) to which the sentencing judge referred. 

1. McGuigan was born in Mansfield and moved with his family to Western Australia at the age of five.  His parents separated shortly thereafter, his father leaving the family home and returning to Victoria.  It was claimed that his father, a shearer, was a heavy drinker who was sometimes violent towards his mother.  It was considered that McGuigan remained affected by the abandonment he felt as a young boy when his father left them.

1. McGuigan remained in Western Australia with his mother, brother and sister until he was 12 years of age, when the family also returned to Victoria. 

1. Within months of returning to Victoria McGuigan absconded from home and thereafter lived in youth houses and hostels.  He became subject to the care and protection of the Department of Human Services.  McGuigan described himself as a ‘state ward’ and claimed he was, for the most part, placed in what was called secure welfare for his own protection.  At the age of 16 he was ordered to be detained in youth training detention where, due to a number of court appearances, he substantially remained until shortly before the commission of these offences.  On that basis his counsel on the plea hearing put it that McGuigan had effectively been confined for all but 18 months of his teenage life.

1. From age 11 or 12 he began smoking cannabis; by 13 or 14 he was using methamphetamine intravenously, more regularly by age 15 or 16.  He was diagnosed with dyslexia during primary school.  After reaching Grade 7 in Esperance, Western Australia, he received no further formal education.  He has not been employed other than a very brief period in late December 2005 after release from youth training centre assisting his brother working as a truck jockey. 

1. In 2007, when assessed by Bernard Healey (psychologist), personality testing revealed depression, anxiety and paranoid ideation.  Ms Cidoni’s testing revealed below average intellectual capacity with a full scale IQ of 85.  She concluded:

His memory function appeared to be poor.  Personality testing was indicative of hysteria and poor coping resources.  A schizoid and sociopathic trend was also observed linking to feelings of alienation, impulsivity and antisocial functioning.  He presents as a troubled young man, lacking in the sense of belonging and direction in his life.  He copes poorly in the community in the face of stress and as evidenced in this and previous offending; there is solace and escape seeking through substance abuse that results in disinhibited and destructive behaviour.

1. At the time of sentence, McGuigan had a lengthy history of prior convictions, all but one in the Children’s Court.  His first conviction was in February 2003 when he was then aged 14, including for offences of using a drug of dependence, assault, theft and criminal damage.  In June 2004 he was sentenced to a term of detention in a youth training centre for eight months on numerous offences including assault with a weapon, robbery and causing injury intentionally, and for also breaching a youth supervision order made seven months earlier for, amongst other things, having caused injury intentionally.  He was convicted of further charges of robbery (31 January 2005), and then of armed robbery (2 March 2005) for which he was sentenced to detention in a youth training centre for nine months.

1. On 25 May 2007 he was sentenced in the Supreme Court to a term of detention in a youth justice centre for a period of three years for causing serious injury intentionally.  The charge arose out of an incident on 15 March 2006 when McGuigan stabbed a 57 year old man to the body using two knives.  Having been detained on remand since the offence, he pleaded guilty and was sentenced in the Supreme Court after he had initially been charged with attempted murder. 

1. He was released on parole from the youth justice centre on 11 February 2008, about seven weeks before the commencement of the offending the subject of this case.  After release on parole he lived with his father for a short period of time before leaving his father’s house to live in Salvation Army accommodation.

1. He appears to have little if any family support, no employment history and no identifiable employment skills.

Guilty plea and rehabilitation prospects

1. McGuigan was arrested on 6 April 2008, shortly after the incident charged on presentment 2.  He remained in custody from that time until sentence on 3 February 2010.  He pleaded guilty to the one count presentment on the first day of trial on 4 October 2009 and to the 18 count presentment upon it being filed on 4 December 2009. 

1. Whilst it could rightly be said that he pleaded guilty to most of the counts at the earliest opportunity the Crown relied on unchallenged evidence that McGuigan had been recorded since his arrest bragging about his commission of the offences and discussing the commission in future of a perfect armed robbery on a soft victim.  These facts were accepted by the sentencing judge.  On appeal the Crown argued that whatever is to be made of the plea, there is little or no evidence of remorse on the part of McGuigan.  On behalf of McGuigan it was submitted that the recording of his comments made in prison to an undercover policeman is an unreliable basis upon which to conclude he shows no remorse.  Rather, it was said, it should be regarded as nothing more than youthful bravado. 

1. A plea of guilty is ordinarily a matter to be taken into account in mitigation when sentencing.[10]

   [10]Siganto v The Queen [1998] 194 CLR 656, 663 and 664 [22]; s 5 Sentencing Act 1991 (Vic).

1. As stated in the oft quoted passage from the reasons of Callaway JA in R vDuncan,[11] an early plea that does nothing except save time and expense is still entitled to consideration, and should usually attract a significant discount.  A plea of guilty which has those effects but also evidences genuine remorse and prospects of rehabilitation normally justifies a high discount.[12]

   [11][1998] 3 VR 208.

   [12]Ibid 214 and 215.

1. It is apparent that the sentencing judge did not regard McGuigan’s plea of guilty to be an expression of remorse.  His Honour was entitled to form such a view on the evidence. Against the background of McGuigan’s past criminality, and the nature of the offending involved in the present case, one would wish to see more than the plea of guilty alone to be satisfied that it was borne of true remorse.  There was little else from which to reach such satisfaction.  For example, there is no support for a conclusion of genuine remorse contained in the psychologist’s report.  And the evidence of McGuigan’s conversation in prison certainly did not assist in supplying a reason to conclude that he was genuinely remorseful.

1. The sentencing judge said that but for McGuigan’s plea of guilty he would have ordered a total effective sentence of imprisonment of 24 years (rather than 21 years and 4 months) with a non-parole period of 19 years (rather than 18 years).  Putting aside the question of the appropriate total effective sentence, in all the circumstances I do not consider the proportionate discount given to reflect the pleas of guilty to be an insufficient recognition of its utilitarian value.

1. Further, in this case the plea of guilty was not of particular significance in assessing McGuigan’s prospects for rehabilitation.  There was other, more cogent material that bore upon that question.  Those prospects were relatively bleak when one had regard to his background of offending and drug abuse, his low intelligence and poor educational foundation, and the psychological profile depicted in the report of Ms Cidoni.  Ms Cidoni herself does not positively point to any ground for optimism for rehabilitation but only concludes:

He would benefit with counselling to assist him to develop resources for problem solving and effective coping with stress and adversity as it arises in his life and assistance to remain drug free.  Upon release he will require intensive support in the community to counter the effects of institutionalisation. 

1. His Honour concluded from this material that it offered little prospect of rehabilitation.  Although that conclusion is unremarkable I do not take his Honour to be saying that such prospect was non-existent.

1. Before committing these offences McGuigan had not been incarcerated in an adult prison.  He was 19 years of age at the time of their commission and is now 23 years of age, approaching 24.  He almost entirely lacked positive family or social support during his teenage years and had, undoubtedly, been deprived of many of the advantages possessed by many others in the community.

1. Following the passage referred to earlier in Azzopardi, Redlich JA went on to say:

But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[13]

Regardless of whether the guilty plea is or is not indicative of prospects of rehabilitation, for a young man in the position of McGuigan I consider it would have been premature to conclude that, in his case, there was no realistic prospect of rehabilitation. 

[13]Azzopardi [2011] VSCA 371, [44].

1. Whilst McGuigan’s offending approaches the description given in that passage, it would not be correct to regard the mitigatory consideration of youth to be all but extinguished in his case.  He not only deserved a discount for the utilitarian benefit of his plea but also that the sentence reflect a measure of favour accorded to him because of his youth.  Nevertheless, as I have observed earlier, the weight to be attached to that consideration is, in this case, necessarily reduced because of the weight to be given to other sentencing objectives due to the high degree of criminality involved.

Sentence was manifestly excessive

1. Returning then to the ground of manifest excess, it is now necessary to consider whether, in the circumstances now outlined, the sentence was wholly outside the range of sentencing options available to the sentencing judge.  Although on appeal the Crown did not explicitly concede that the sentence passed was wholly outside the range, its argument that it was within the range was barely pressed.  In my view, it is the case that the sentence passed on McGuigan was wholly outside of the range of sentencing options that were available to the sentencing judge.

1. The offences of which McGuigan was convicted carry very high maximum penalties:  armed robbery, 25 years, and causing serious injury intentionally 20 years.  He fell to be sentenced on six of the counts as a serious violent offender.  What that means is that, on those counts, in determining the length of sentence the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed.[14]

   [14]Section 6D(a) of the Sentencing Act 1991.

1. It is to be noted that, on the plea below, the Crown prosecutor (who did not appear on the appeal) submitted to the sentencing judge that a head sentence of 24 to 26 years, and a non-parole period of 20 to 22 years, was the appropriate sentencing range.  In my view there was no justification for that submission.  We have been referred to no authority which would justify that range.  On appeal the Crown did not seek to support it. 

1. In carrying out its role in making sentencing submissions in accordance with R v MacNeil-Brown[15] the maximum assistance to the judge is obtained by articulating the basis of the range submission by reference to the aggravating and mitigating circumstances of the case and to current sentencing practices so far as applicable.[16]  By contrast, an ill judged Crown submission on range can have the opposite effect and lead to sentencing error as, in my view, has occurred in this case. 

   [15](2008) 20 VR 677, [10].

   [16]VA v The Queen [2011] VSCA 426, [45].

1. Both the Crown and counsel for McGuigan agreed that the real issue in this case is whether the principle of totality had been observed.  In Postiglione v The Queen[17] Kirby J explained what the sentencing judge must do after first reaching a conclusion on what seems to be the appropriate sentence after adjusting for factors personal or special to the offender, and discounted by any other relevant considerations.  His Honour said:

But it still remains for the judge to look back at the product of these calculations and discounts.  It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment.  It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike.  Or it may offend the totality principle because, looking at the prisoner’s criminality as a whole, the outcome is, in totality, not ‘just and appropriate’.  The last mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be ‘crushing’ and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.[18]

[17][1997] 189 CLR 295.

[18]Ibid 341.

1. For McGuigan it was submitted that everything in that passage epitomises what has gone wrong in this case.

1. I agree that the sentence of 21 years and four months is, in its totality, not just and appropriate looking at McGuigan’s criminality as a whole.  Further I consider that it is such so as not to hold out a proper measure of hope for or encouragement to rehabilitation and reform.  I agree with the Crown submission that the individual sentences themselves are not the problem; the problem is with totality as described. 

1. The method for adjusting the total sentence to satisfy the totality principle is stated in Azzopardi.[19]  As observed by Redlich JA in those cases:

Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v The Queen the sentence should be no longer ‘than is necessary to meet the various purposes of criminal punishment.’ Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, ‘that it is enough’. Wickham J also opined that ‘[m]ore than enough is wrong because the excess is not only purposeless but might be harmful.’[20]

[19]Azzopardi [60]–[68].

[20]Ibid [61] (citations omitted).

1. In my view the sentence imposed went beyond what was necessary to satisfy the various objectives of sentencing, by some margin. The total effective sentence is manifestly excessive because the outcome is, in its totality, not just and appropriate and is wholly outside the range within which it would have been reasonable to sentence McGuigan for these offences in his circumstances. 

1. To say that, of course, is to recognise that there was a ‘range’ within which McGuigan could reasonably have been sentenced within the sentencing judge’s discretion.  I do not pretend that the task of sentencing a person like McGuigan for the offences he committed was a task which enjoyed clear guidance from recourse to sentencing practice; but, in my view, 21 years and four months was above and wholly outside that range.

1. Accordingly, I would allow the appeal and re-sentence McGuigan.

Re-sentence

1. Whether or not s 6D of the Sentencing Act is applied, because of McGuigan’s history of violence, poor coping mechanisms and tendency to violent behaviour when resorting to drug abuse to overcome his poor coping mechanisms, protection of the community is a significant sentencing objective.  So too is denunciation. 

1. Bearing in mind the circumstances, including the nature of the offences, his personal background, guilty plea and the observations I have made concerning his rehabilitation prospects, I would re-sentence McGuigan as follows, fixing the amounts of cumulation specified in brackets in the sentence column to be served cumulatively upon the sentence imposed on count 12:

Presentment 1:	Y00558188
Count	Date	Offence	Maximum Penalty	Sentence & (Cumulation)
1st incident 1 2	29/3/2008	Armed robbery	25	4 yrs (8 months)
	29/3/2008	Causing serious injury intentionally	20	3 yrs (4 months)
2nd incident 3 4	29/3/2008	Armed robbery	25	4 yrs (8 months)
	29/3/2008	False imprisonment	10	1 yr (1 month)
3rd incident 5 6	1/4/2008	Attempted armed robbery	25	4 yrs (8 months)
	1/4/2008	Causing serious injury intentionally	20	3 yrs (1 yr)
5th incident  7	2/4/2008	Armed robbery	25	2 yrs (3 months)
4th incident  8 9 10	2/4/2008	Armed robbery	25	4 yrs (8 months)
	2/4/2008	Causing serious injury intentionally	20	5 yrs (21 months)
	2/4/2008	Armed robbery	25	3 yrs (6 months)
6th incident  11 12	2/4/2008	Armed robbery	25	4 yrs (8 months)
	2/4/2008	Causing serious injury intentionally	20	6 yrs (Base)
7th incident 13 14 15	2/4/2008	Attempted armed robbery	20	4 yrs (2 months)
	2/4/2008	Causing serious injury intentionally	20	5 yrs (21 months)
	2/4/2008	Armed robbery	25	2 yrs (1 month)
8th incident 16 17 18	4/4/2008	Armed robbery	25	3 yrs (3 months)
	4/4/2008	Causing serious injury intentionally	20	4 yrs (8 months)
	4/4/2008	Armed robbery	25	2 yrs (2 months)
Presentment 2:	X00889314
9th incident 1	6/4/2008	Attempted armed robbery	20	3 yrs (2 months)
Total effective sentence  -  16.5 years  Non-parole period -  12.5 years

1. Accordingly, I would re-sentence McGuigan to a total effective sentence of 16.5 years’ imprisonment and would set a non-parole period of 12.5 years.  But for his plea of guilty to all charges I would have sentenced him to 19 years’ imprisonment and set a non-parole period of 15 years.

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