McPadden v The Queen
[2018] VSCA 57
•9 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0088
| DEREK McPADDEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA, and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 March 2018 |
| DATE OF JUDGMENT: | 9 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 57 |
| JUDGMENT APPEALED FROM: | DPP v McPadden (Unreported, County Court of Victoria, Judge Smallwood, 12 December 2016 (Conviction), 12 April 2017 (Sentence)) |
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CRIMINAL LAW — Conviction — Appeal — Arson and other offences — Conduct of trial judge — Intervention by trial judge — Apparent impatience with cross-examination by defence counsel — Implicit criticism of defence counsel’s cross-examination — Whether unacceptable prejudice to defence case — Whether substantial miscarriage of justice — Leave to appeal refused.
CRIMINAL LAW — Sentence — Appeal — Arson and other offences — Whether sentence of nine years’ imprisonment with six year non-parole period manifestly excessive — Whether judge erred by sentencing according to s 6AAA of the Sentencing Act 1991 declaration made with respect to co-accused — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J O’Connor | Galbally Rolfe |
| For the Respondent | Mr J Gullaci | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA
KIDD AJA:
Introduction
In August 2013, the applicant owned and operated the St Albans Pizza and Pasta Restaurant (‘the restaurant’) in Main Road West, St Albans.
In the early hours of 11 August 2013, ‘HB’, with the connivance of the applicant, set fire to the restaurant premises, causing extensive damage to the premises, and exposing residential tenants of the building in which the restaurant was housed to the danger of serious injury. The applicant later made an insurance claim seeking compensation for the damage resulting from the fire, and for losses occasioned by business interruption and loss of wages. He also made a statement to police which in part was false.
Following a trial in the County Court, on 12 December 2016, a jury convicted the applicant of arson,[1] reckless conduct endangering serious injury,[2] attempting to obtain property by deception[3] and perjury;[4] and on 12 April 2017, the trial judge sentenced him to be imprisoned for nine years, with a non-parole period of six years, in the manner we will later set out.
[1]Crimes Act 1958, ss 197(1) and (6). The maximum penalty is 15 years’ imprisonment.
[2]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.
[3]Crimes Act 1958, ss 81 and 321M. The maximum penalty is 5 years’ imprisonment.
[4]Crimes Act 1958, s 314(1). The maximum penalty is 5 years’ imprisonment.
The applicant now seeks leave to appeal against conviction and sentence.
With respect to conviction, the applicant relies on a single ground as follows:
1. A substantial miscarriage of justice occurred due to the trial judge’s interjections during cross-examination of witnesses by defence counsel and comments to the jury.
As to sentence, the applicant relies on the following grounds:
1. The sentences on charges 1, 2 and 3, the total effective sentence and the non-parole period are manifestly excessive.
2. The learned sentencing judge erred by taking into account, and by fixing sentence by reference to, the s 6AAA [of the Sentencing Act 1991] declaration made in respect of the Applicant’s co-offender, [HB].
In our view, for the reasons that follow, both applications should be refused.
The essential facts
Before turning to the merits of the applications for leave to appeal, it is necessary to say something of the essential facts underpinning the convictions.
The applicant’s restaurant was on the ground floor of a two storey building, in a row of shops. A bakery was immediately adjacent to the restaurant. Three residential units, located directly above the restaurant, occupied the second storey. Entry to the restaurant was gained either through double glass doors at the front, or through a single metal door at the rear. The restaurant comprised a kitchen and a preparation and service area on one side, and a café and entertainment area on the other. There were a number of storage areas and a bathroom at the rear of the restaurant, accessed through an internal hallway. Outside the restaurant at the back was a storage shed, a refrigerated shipping container and an external stairway. There was also a laneway at the rear that was used as a loading area for the restaurant and adjoining businesses.
HB had developed a close relationship with the applicant. He was a regular customer at the restaurant, and, in the six months prior to the arson, would go to the restaurant daily.
After the restaurant had closed in the early hours of Sunday, 11 August 2013, the applicant returned with HB to the vicinity of the restaurant. Just before 5.00 am, HB entered the restaurant through the rear metal door which had been left unlocked by the applicant, while the applicant remained in his car. Once inside, HB picked up one of two containers of petrol, which had been obtained for the purposes of setting a fire at the restaurant. At one point he slipped, spilling petrol over his legs as he did so.
HB poured petrol around the premises, and used a cigarette lighter to ignite the petrol. Fire spread rapidly. HB then found himself on fire, the petrol which he had spilled onto his clothing having ignited. He ran around the restaurant in a panic, unintentionally igniting petrol that he had spread around the premises. HB attempted to put out the flames on his legs by placing his legs into the toilet and flushing.
HB realised that he was trapped, the rear door of the restaurant having closed behind him and locked automatically. Panicked, HB ran to the front door, through the flames, but was unable to get out. He then attempted unsuccessfully to smash the front window. HB then retrieved a hammer that was under the front counter, but, when bending down to pick up the hammer, more of his clothes caught fire. He immediately removed his shirt and threw it onto the floor, but it landed near the area containing electrical equipment, where HB had previously poured a large amount of petrol. The shirt caused the fuel to ignite and caused an explosion, the force of which threw HB approximately two to three metres.
HB then picked up a table and threw it at the glass front doors, causing the upper window to break. He dived out the window head first and landed heavily on the footpath. HB had life-threatening injuries, but nonetheless managed to run down the street towards where the applicant was waiting for him, leaving flesh and other biological material behind.
At the time the fire was set, all three residential units above the restaurant were occupied, six adults and two young children being asleep in the units. The residents were woken, however, by the baker from the adjoining bakery, Nikola Joveski, and managed to evacuate safely. Smoke from the fire and the sound of the explosion had alerted Mr Joveski to the fire. He then telephoned ‘000’ and woke the occupants in the upstairs residences.
HB, as we have mentioned, suffered serious injuries. He had severe burns and an inability to breathe properly. The applicant, after initially offering to drive HB to a hospital, drove him around in his car for a time, until HB asked to be dropped off at a friend’s house. The applicant tried to give HB money, but, due to the severe nature of the burns to his hands, HB was unable to take it. As a result, the applicant put the money into HB’s jacket, and gave his phone number on a piece of paper, along with his name ‘Derek’, to HB’s friend, ‘Katrina’. The applicant told Katrina that he had a pizza shop. Due to his injuries, HB had deposited bodily fluids and other biological matter onto the front seat of the applicant’s car.
At approximately 7.00 am, the applicant refuelled his car at a service station in Main Road East, St Albans. At about this time, the applicant was told about the fire by one of his employees, Jatinder Grewal. The applicant then drove to the restaurant, parked his car, approached the attending police officers and identified himself as the owner.
HB remained at Katrina’s house for 28 hours before he was taken to the Alfred Hospital and, due to the severity of his injuries, was placed in an induced coma. He suffered burns to approximately 45 per cent of his body, and spent two weeks in the intensive care unit, until being transferred to a hospital ward. Weeks later, he was moved to the Caulfield Rehabilitation Centre, where he continued to receive treatment for his injuries.
As we have said, due to the severity of his injuries, HB had deposited biological material onto the front seat of the applicant’s car. On 14 August 2013, the applicant thus arranged for the front passenger seat of his car to be replaced, telling the auto parts dealer, Nathan Fanner, that his friend had vomited on the front passenger seat, and that, despite cleaning the seat a number of times, he could not eradicate the smell (the real reason for replacing the seat being, of course, its soiling with HB’s body fluids and other material).
HB had left a piece of flesh from his thumb containing his fingerprint behind at the arson scene. On 28 October 2013, he was arrested as a suspect at the Caulfield Rehabilitation Centre. He was taken to the Sunshine Police Station where he participated in a formal record of interview. During the interview, he made detailed admissions, and, in doing so, implicated the applicant in setting the fire. HB gave an undertaking to assist police with their ongoing investigation into the fire. In particular, HB assisted police by introducing an undercover police officer to the applicant.
The admissions made by HB included that the applicant had:
· approached him about four weeks before the fire and asked him to set fire to the premises as part of an ‘insurance job’;
· planned and spoke to him about setting fire to the premises during the time leading up to the fire;
· planned with him to start the fire a week earlier although those plans were postponed;
· arranged to set fire to the restaurant for financial gain;
· promised to pay HB $50,000 for setting fire to the premises, and had promised a further $50,000 when the insurance claim was finalised;
· promised to find HB a place to stay;
· before he left the restaurant in the early hours of 11 August 2013, unlocked and opened the rear door;
· obtained the fuel used as the accelerant and had placed the fuel can inside the rear of the shop;
· given HB a cigarette lighter and a pair of gloves to use while starting the fire; and
· given HB specific instructions as to distributing the fuel and starting the fire, including a direction that any security camera was to be destroyed.
HB also said that he was aware that there were people staying in the units above the restaurant at the time the fire was ignited, and that he thought that between 15 or 20 people might have been present upstairs at the time.
At the completion of the interview, HB made a signed statement detailing his and the applicant’s involvement in the arson. Thereafter, HB continued to assist police with the ongoing investigation of the matter.
As part of his assistance to authorities, in the evening of 16 January 2014, HB introduced the applicant to ‘Nikolai’ (or ‘Nick’), who, unknown to the applicant, was an undercover police officer attached to the Victoria Police Undercover Unit. HB and the officer went to the applicant’s home and had a conversation with him which was covertly recorded. During that conversation, the applicant discussed his involvement in the fire and promised to pay HB the money as promised. He handed HB $150 cash to assist him with daily necessities and said that he would pay him the promised $25,000 to $50,000 — depending on the result of the insurance payout — once the claim had been finalised. ‘Nikolai’ had a further covertly recorded conversation with the applicant later that same night, and once more on 4 February 2014. During these conversations the applicant made significant admissions about his involvement in the fire, and mused about the lack of evidence that investigators had to go on.
On 6 February 2014, the applicant was arrested and participated in a record of interview. He denied all allegations.
An investigation into the fire concluded, among other findings, that the probable source of ignition was a match or cigarette lighter, and that the cause of the fire was the ignition of available combustible material that was assisted by the presence of petrol. During the investigation, police noticed blood at the scene, together with bits of human flesh and skin. As we have mentioned, one of those pieces of skin had a clearly visible fingerprint, leading to HB’s identification.
The applicant submitted an insurance claim on 12 August 2013, the day after the fire. He had taken out the policy in February of the same year. The policy comprised $140,000 contents insurance, and $572,000 insurance for business interruption and loss of wages. The applicant expected that the insurance claim would be paid in full.
On 13 August 2013, the applicant gave a statement to police which outlined his movements on 10 and 11 August 2013, particularly with respect to the time of the fire. This statement, which the applicant attested to be true and correct, was the basis for the charge of perjury.
The conviction application
In the course of the trial, so the applicant’s counsel submitted, the trial judge made a number of interjections during cross-examination by defence counsel, their frequency and manner of expression being such that the jury would have been led to conclude that defence counsel was incompetent, and that the defence case was unmeritorious.
As part of the written case, the applicant’s counsel relied on a table of interjections — which, with slight modification[5] — is reproduced immediately below:
[5]For ease of reference, we have numbered the interjections in the left column (and deleted the transcript page references). We have also added a few lines that were not in the original table.
Witness Interjection 1
David Cheung (restaurant employee) HIS HONOUR: Well, how can he answer that?
[DEFENCE COUNSEL]: If he’s not aware, he’s not.
HIS HONOUR: Well no, what you’re doing, you’re asking all these things about things he didn’t see.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I mean, this has got to — if he didn’t see it, it’s got to be based on total hearsay, doesn’t it. I mean, it’s got no evidence when it was put there.
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: Ask a police officer.
[DEFENCE COUNSEL]: I’ll move on. …
…
[DEFENCE COUNSEL]: Your Honour, the leave of the court, if I may, there was one matter I forgot to ask. Excuse me, just one matter I forgot, I apologise.
HIS HONOUR: As long as it’s something he knows about.
[DEFENCE COUNSEL]: I apologise to the court.
2
Victor Colella (undercover police officer [Nikolai]) HIS HONOUR: Be careful what you’re putting to him.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: This is an undercover police officer. He’s not there to extort money from your client. Extraordinary proposition to put.
[DEFENCE COUNSEL]: No. Yes, Your Honour. I’ll get to it.
HIS HONOUR: Well, do.
3
Detective Senior Constable Matthew Pesci HIS HONOUR: Can we have this through the informant rather than — I mean, we’ve just spent quarter of an hour going through things that have already been gone through about three times.
[DEFENCE COUNSEL]: Your Honour, with respect, ‑ ‑ ‑
HIS HONOUR: Yes, well just finish it then, all right.
4 [HB] [DEFENCE COUNSEL]: So he’s part of the IRA ‑ ‑ ‑?---No, I’m not saying. I’m just saying ‑ ‑ ‑
HIS HONOUR: I don’t know why you are doing this, I really don’t.
[DEFENCE COUNSEL]: Yes, Your Honour.
5 [HB] HIS HONOUR: No, don’t look like — just do you understand, right? You have been doing it for days. It’s an improper way of asking questions, do you understand? It can have all sorts of things, hearsay the lot… 6 [HB] HIS HONOUR: I’m reluctant to stop it, but I’m struggling. [referring to a line of questioning objected to by the prosecutor on grounds of relevance] 7 [HB] HIS HONOUR: If something is going to be put here it can get put rather than go through this drawn out process. 8
Detective Senior Constable Rebecca Stokes HIS HONOUR: But what is that going to lead to as probate [scil, probative] from this witness? You have already taken him through it. This isn’t a final address. What is probative about this? What question are you going to ultimately ask this witness? He agrees with all these propositions.
[DEFENCE COUNSEL]: I will move on.
9
Detective Senior Constable Rebecca Stokes HIS HONOUR: So don’t worry about her understanding, you’ve asked the actual people who were involved and they’ve given you their evidence.
[DEFENCE COUNSEL]: Yes, Your Honour. In terms of the purchases, they were still going to purchase the business as of 11 August 2013, you understood that?
[PROSECUTOR]: Well I object to that, I mean at the end of the day ‑ ‑ ‑
HIS HONOUR: No, they weren’t. That’s just wrong. One, they had to get finance, and two they hadn’t even seen the financial documents.
…
HIS HONOUR: No, you can’t be doing this. You’ve spoken to those two witnesses and this do you understand, we went through that the other day.
It may be inferred that some of the language used by the judge conveys his impatience with counsel. For example:
· ‘Extraordinary proposition to put’;
· ‘Well, do’ (after counsel says he will ‘get to it’);
· ‘we’ve just spent quarter of an hour going through things that have already been gone through about three times … Yes, well just finish it then, all right’;
· ‘So he’s part of the IRA---? … I don’t know why you are doing this, I really don’t’;
· ‘just do you understand, right? You have been doing it for days. It’s an improper way of asking questions, do you understand?’;
· ‘I’m struggling’;
· ‘this drawn out process’;
· ‘This isn’t a final address’; and
· ‘That’s just wrong … No, you can’t be doing this. You’ve spoken to those two witnesses and this do you understand, we went through that the other day’.
Moreover, the following criticisms may be divined from the judge’s interjections:
· first, counsel had attempted to ask a witness about matters of which the witness has no personal knowledge and had thereby sought to elicit hearsay;
· secondly, counsel needed to exercise more care — to be ‘careful’ — in questioning an undercover police officer, what counsel had already put to the witness being ‘extraordinary’;
· thirdly, counsel’s cross-examination was repetitive (this imputation being made more than once);
· fourthly, counsel had been asking questions in an ‘improper way’ for ‘days’; and
· fifthly — and more generally — that counsel’s method of asking questions was ‘wrong’.
Ultimately, counsel for the applicant submitted that the cumulative effect of the judge’s express or implied criticisms was to prejudice the jury against the applicant, such that the applicant was denied a fair trial. A substantial miscarriage of justice was thus occasioned.
Counsel for the respondent submitted, citing Percival,[6] that, although comments such as ‘extraordinary proposition to put’, ‘it’s an improper way of asking questions’ and ‘I don’t know why you are doing this’, might have had the potential unfairly to prejudice the applicant, any effect that they may actually have had in this case ‘remains speculative’. Unlike the situation in Percival — where the jury provided the judge with a note expressing concern about his comments — there was no evidence, the respondent submitted, that the jury were affected adversely by the judge’s interjections.
[6]Percival v The Queen (2015) 49 VR 238, 256 [76]–[78] (Redlich, Weinberg and Osborn JJA) (‘Percival’).
Turning to the merits of the ground, guidance may first be found in Mawson, in which it was observed:[7]
It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. …
[7]R v Mawson [1967] VR 205, 207 (Winneke CJ).
More recently, in Piccolotto, the Court said:[8]
The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted.[9] Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court.[10] That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor. If the trial judge felt that the prosecutor was not discharging his duty, he should have raised those concerns with the prosecutor in the jury’s absence so that it would not be necessary for the judge to intervene in the jury’s presence and be seen to be stepping into the arena of dispute.
Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court’s time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.[11]
If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue.[12] A judge’s comments must not convey the impression, whether by intervention or otherwise, that the defence is ‘hollow.’[13] Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel’s conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury.[14]
[8]Piccolotto v The Queen [2015] VSCA 143, [41]–[43] (Redlich, Santamaria and Beach JJA) (citations in original) (‘Piccolotto’).
[9]See Mooney v James [1949] VLR 22, 28; Kalia v The Queen (1974) 60 Cr App R 200; Kranz v The Queen (1991) 53 A Crim R 331, 340; Love v The Queen (1983) 9 A Crim R 1, 26; [R v Lars] (1994) 73 A Crim R 91, 125.
[10]R v Thompson (2002) 130 A Crim R 24, [39]; R v Wilson [1995] 1 VR 163.
[11][R v Lars] (1994) 73 A Crim R 91, 133.
[12]Tousek v Bernat [1961] SR (NSW) 203, 209; Galea v Galea (1990) 19 NSWLR 263, 280.
[13][R v Cunningham] (1992) 61 A Crim R 412, 429 (Crockett, Southwell and O’Bryan JJ).
[14]RPS v R (2000) 199 CLR 620.
In our opinion, none of the first, third, sixth, seventh, eighth and ninth interjections — whether taken alone or in combination — can properly be said to have caused a miscarriage of justice. Looked at in the proper context, the judge’s remarks were directed to cross-examination which either invited hearsay, or which was overly long and repetitive. It may be that some of the judge’s remarks appear tinged with impatience. But, having viewed the impugned comments against the backdrop of counsel’s cross-examination, it is clear that counsel’s questioning of witnesses was indeed open to the criticisms embodied in the judge’s interjections. If any of the remarks carried rebuke of counsel or his cross-examination — express or implied — as best it can be gauged from the bare transcript, the judge’s admonitions were somewhat subdued. Indeed, the judge could probably be seen as giving voice to much that would already have been plain to the jury.
Counsel for the applicant submitted that the judge should not have given voice to his implicit criticisms of counsel’s methods in front of the jury. Instead, so it was submitted, he should have raised any criticisms that he had in the absence of the jury; and, should he have had any concerns about defence counsel’s cross-examination, the judge should have encouraged the prosecutor to object. To some extent, however, these submissions ignore the practical reality of how criminal trials are conducted, and the dynamic and fluid nature of the average trial. In many circumstances, it is simply neither practical nor proper to deal with unduly repetitive cross-examination, or cross-examination which is improper for other reasons (for example, because it invites hearsay), by sending the jury to their room, and engaging with counsel in the jury’s absence. Most judicial intervention to prevent ill-advised cross-examination needs to be swift and decisive (subject, of course, to the need to avoid unnecessary denigration of counsel or his or her client’s case). Indeed, experience suggests that juries react adversely to being repeatedly and often sent to their jury room, because of challenges made to cross-examination. In some circumstances, a jury’s perception that they are being made to troop into and out of the jury room by reason of counsel’s unnecessary and undisciplined questioning is calculated to cause more prejudice to counsel (and his or her client’s cause) than swift and decisive judicial intervention accomplished in their presence.
As we have said, none of the first, third, sixth, seventh, eighth and ninth interjections exceeded acceptable bounds. Due to their manner of expression, however, the second, fourth and fifth interjections require closer scrutiny. To determine whether they can properly be said to exceed proper boundaries, however, they need to be put into their proper context.
The second impugned interjection occurred during the cross-examination of ‘Nikolai’, the undercover police officer, who gave evidence under the pseudonym Victor Colella. In the course of cross-examination, defence counsel apparently was endeavouring to have Nikolai agree that, when he spoke to the applicant, Nikolai was attempting to influence the applicant to pay money using a veiled threat of harm. Thus:[15]
[15]Emphasis added to this and following passages.
Then you say to [the applicant], ‘You’re not in harm’s way.’ See that?---Yes.
You agree with me that that’s a threat of harm?---How I can I agree with you when I say it three times, I said from the beginning that I’m there to cause no trouble, twice he said he’s not worried and again, he’s not — not in harm’s way. It’s like I’m trying to it. That’s part of my job, it’s crucial for us doing this operation.
Yes. You were being ironic and sarcastic when you said that, ‘You’re not in harm’s way’?---No, I was not.
And you follow up with, ‘You know what I’m saying.’ Right?---Yeah.
That’s code, isn’t it? That’s a code for nudge, nudge, wink, wink, you know what I’m saying, you’re not in harm’s way. You’re meaning the direct opposite, aren’t you?---No I was not.
Because you’re there to make sure that [HB]’s going to get money, right?---Ah well that’s as a part of our story, yes, but ---
That’s your role, you’re there to make sure [HB] is going to ---
HIS HONOUR: Be careful what you’re putting to him.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: This is an undercover police officer. He’s not there to extort money from your client. Extraordinary proposition to put.
[DEFENCE COUNSEL]: No. Yes, Your Honour. I’ll get to it.
HIS HONOUR: Well, do.
[DEFENCE COUNSEL]: The reality is that you’re using this sort of pressure, these tactics, because you Mr McPadden [sic] to talk. You don’t want him to say, ‘Go away, I don’t want to speak to you. I’ve got nothing to say to you’?---No.
You don’t want him to do that?---No but I attended his place with an open mind. I was in there as part of investigation to search for the truth.
Yes and in that search for the truth, you needed him to talk to you and not shut the door on you and say, ‘Go away’?---But I say from the beginning, my role is to determine his involvement, if any, and he was — yeah, I would love him to tell me if he was involved, yes, certainly.
That’s why you’ve adopted this persona, of being a standover man, I put it to you?---No, not — I didn’t attend at place as a standover man.
Because what you wanted to do is to make sure he started talking, as opposed to shutting the door on you?---Yeah but not at all costs and using you know, the attacks you are alleging.
Having read the transcript of Nikolai’s conversations with the applicant, the implied suggestion that the undercover officer was, in effect, trying to extort money from the applicant does indeed appear to be ‘extraordinary’. Putting the judge’s remarks into proper context, however, it strikes us that the judge was attempting to discourage counsel from persevering with a line of cross-examination which the jury would have seen to have been ill-judged and unrealistic, and thereby detrimental to the defence case. Use of the adjective ‘extraordinary’ would best have been avoided; but, given what would in any event have been obvious to the jury, its use can have done no real harm to the jury’s impressions of the defence case (whether considered alone or in combination with the judge’s other comments).
The fourth impugned interjection was again during the cross-examination of HB, during which an allusion was made to the Irish Republican Army:
You said yesterday that you told him don’t do it, is that right?---Correct.
So you are trying to paint yourself as some sort of a hero, is that it?---Not at all.
You are trying to put blame onto the accused?---Not at all.
Aren’t you? You are certainly saying that Mr McPadden is a person who doesn’t give a damn?---[Defence Counsel], if you want to dig right deep down, you know why I wanted to tell the truth. Because when we started plannin’ it, right, he — he tried do it two, three times before me and when I got involved in it, you know what he said to me, [Defence Counsel]? I’ll turn the gas on. Gas on in the — in the thing. You know what I said to him? ‘If you turn the gas on and I go in there and light it’ I said, ‘what’s going to happen to me and the people?’ He just laughed at me, [Defence Counsel]. He was going to put spray cans and all that so he could blow it up in the — in the shop and I said to him, ‘What’s going to happen to me and the people upstairs?’ He just laughed at me, [Defence Counsel], and you want — not tell the truth, lie.
So---?---Now, I can understand ---
You’re trying to tell---?---Now, I can understand why IRA wants to blow people up, you know why they blow people up, because he’s an IRA, Irish bloke. Now, I can understand.
So he’s part of the IRA---?---No, I’m not saying. I’m just saying ---
HIS HONOUR: I don’t know why you are doing this, I really don’t.
[DEFENCE COUNSEL]: Yes, Your Honour.
[HB]: You know, he was going to turn the gas on while I was in there. He laughed at me. When I finished — when I finished with the job, when I walked up to him, I was — look, can you see all these photos, are they all lies, [Defence Counsel]? He laughed at me and said, ‘Is the job done?’
[HB]?---Yeah, I don’t know where you’re going with all this.
[DEFENCE COUNSEL]: You are trying to paint him as being totally responsible and you not having any responsibility?---I did have responsibility. What’s this, [Defence Counsel]? What are all these burns, [Defence Counsel]?
[PROSECUTOR]: Well, he has probably answered it. The man has pleaded guilty. He has given evidence, he is serving a sentence, he is referring to his burns. It’s unfair the way my learned friend is putting these matters to the witness.
[DEFENCE COUNSEL]: Your Honour
HIS HONOUR: Bearing in mind the evidence he gave yesterday in general terms about your client being (indistinct) and just couldn’t handle the situation, it’s not — are you just ignoring all that?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I don’t know why you are doing this.
[DEFENCE COUNSEL]: [HB], you indicated that he tried to do — I withdraw that. What you have indicated is that you have a discussion with him---?---I ---
And at the end of this discussion, you agreed to go in and burn the place?---Correct.
Despite any concerns you may have had, you went in and burnt it?---[Defence Counsel], I begged him.
All right, but despite any concerns, any begging---?---I begged, this — this was planned for nearly six months, [Defence Counsel]. He had other people to do it, they backed out, [Defence Counsel].
It may readily be ascertained that counsel’s cross-examination was undisciplined; and that, in particular, counsel did little to exercise proper control over the difficult witness. Quite plainly, counsel permitted HB’s testimony, and his cross-examination of HB, to stray into territory that was very dangerous to his client and his case. Indeed, counsel’s questioning invited the adduction of non-probative and highly prejudicial material, which could have been of no conceivable forensic benefit to the defence. The judge’s intervention was thus timely, in that it diverted both counsel and witness from continuing down a path which could only have been deleterious to the applicant’s chances of acquittal. It cannot be gleaned from the bare transcript, of course, whether the judge’s ostensible lament, ‘I don’t know why you are doing this’, was inflected with exasperation or sorrow. But whichever it was, it had the effect of steering the evidence out of dangerous waters. Our distinct impression is that, rather than being prejudicial to the defence case, it was well-timed and beneficial. It cannot have been the source of any miscarriage of justice.
The judge’s fifth interjection also occurred during the evidence of HB:
You understand that once that door is opened, the lock is opened, it doesn’t close automatically?---Well so I went in and closed the door, did I, [Defence Counsel]? Your Honour, please, come on ---
The door does not have an automatic closer, that’s right?---Can you see the — can you see the lock yourself? Don’t look at me, look at the photo please. Don’t look at me when you’re talking and the jury ---
Can you see does the door---?---Can you just see the lock there?
Does the door---?---That’s a deadlock.
Does the door---?---All you’ve got to do is turn the button, [Defence Counsel], turn the button and it’s open, because if you opened it, [Defence Counsel], right, you are Mr Expert, the alarm would go off, wouldn’t it? Now, how the hell am I going to go in while the alarm’s off, [Defence Counsel], if he turns it on? I mean what ---
Are you suggesting---?---Oh, Your Honour ---
That you just turn the handle and it will open?---Well, how it — of course, that’s a deadlock ---
Because you understand---?---It’s to unlock it, not to open the door, not to open it. All you’ve got to do is turn that lock, right, and that’s it and you just need someone to push it from the — that’s what he said to me.
Well, you pushed it and it opened I put it to you?---Well, of course. Now, if that wasn’t open, how — if I push it how was it going to open?
Okay, but you understand that the locking mechanism on this door means that once a key - I withdraw that, you need a key to lock it and unlock it, is that correct?---[Defence Counsel] ---
Just answer the question. Do you need a key to open it ---
HIS HONOUR: Do you know whether you need a key?
[DEFENCE COUNSEL]: Well, do you ---
HIS HONOUR: No, don’t look like — just do you understand, right? You have been doing it for days. It’s an improper way of asking questions, do you understand. It can have all sorts of things, hearsay the lot. Now, I don’t know what your client says about that lock in his record of interview but as I understand it, you have got very little evidence about how that worked and yet you are putting to him that he understood it. Now, you can ask him does he. My understanding of his evidence yesterday was that he didn’t think he’d tried it when he was caught in there so ---
[DEFENCE COUNSEL]: No, I don’t think he gave that evidence ---
HIS HONOUR: Well, that’s my ---
[DEFENCE COUNSEL]: I will go there, Your Honour, as to what he said.
HIS HONOUR: Yes, just don’t fight with him.
[DEFENCE COUNSEL]: Do you have any knowledge as to how that lock operates? Do you have any knowledge?---Not really but whatever he told me I went by him, what your client told me, what the shop owner — I’m not a locksmith, [Defence Counsel].
When the judge said that counsel’s method of asking questions was ‘improper’, the jury would have understood that to be a reference to the perennial problem of counsel’s inveterate resort to cross-examination which invited hearsay. The jury would not have interpreted the judge’s use of the term ‘improper’ as imputing a broader species of misconduct or impropriety. And even if what the judge said was infused with a smidgeon of testiness and frustration, it is doubtful that any prejudice caused was anything other than trivial.
For the sake of completeness, we note that the applicant’s counsel in this Court relied on three further comments by the trial judge — one in running, and two in the judge’s charge — as part of a submission that the cumulative effect of his Honour’s remarks was to occasion a substantial miscarriage of justice.
The first of the further remarks was made during cross-examination of the applicant’s mother, Julie Eldrid, who was called to give evidence in the defence case. In the course of cross-examining the witness on the applicant’s replacement of the car seat, there was the following exchange:
[PROSECUTOR]: On 14 August [the applicant] was still living with you, he was still staying at your address, wasn’t he?---That’s right, yes.
The very day he has the seat changed in the car, he’s still staying at your address?---Yes.
Did you ever ask him why he replaced the seat?---I didn’t ask him anything about it, he didn’t mention it, I didn’t mention it, I knew nothing about it.
Do you agree with me that in those recordings with the man Nikolai, your son makes some admissions in relation to the fire at the restaurant.
[DEFENCE COUNSEL]: Your Honour, I object, on the basis that’s a very vague question, perhaps it should be more specific.
HIS HONOUR: Well, I would have thought the work [scil, word] confession is probably more appropriate but never mind.
[PROSECUTOR]: I’ll water it down even further. He talks about the fire and the circumstances of the fire, doesn't he?---Well the tape perceives that, yes.
It may be seen that defence counsel did not object to the relevant question on the basis that it sought an opinion, or on the basis that it went to a matter of law (or mixed fact and law), but simply on the basis that the question was very vague and non-specific. But assuming that the judge’s comment had the potential to suggest to the jury that he held a view about the evidence which was adverse to the applicant, any sting in the comment was removed by a direction that the judge gave to the jury a very short time later (immediately before the prosecutor’s final address).[16] Hence, his Honour instructed the jury:
… I want to make it very clear to you, the ultimate decision this is a matter for you not for me, … I was in no way shape or form trying to tell you what you should find as facts. I was simply saying this, an admission is a statement against interests which tends to indicate guilty, and a confession is a stronger statement than that.
I’ll just make it very clear to you, it’s a matter for you whether an admission or confession’s been made, not me. If what I said in any way, shape or form misled you about that, don’t be. It’s your decision. The Crown of course say, their position is that those tapes are, as I understand it, confessional but that ultimately is a matter for you, not me and if I misrepresented the situation I rectify it now as strongly as I can. It’s a matter for you not me. It was not meant to be a finding by me. I’ve got nothing to do with that, that’s your job.
[16]Somewhat belatedly, in the course of discussion between both counsel and judge concerning directions necessary to be included in the charge to the jury, the applicant’s counsel sought a discharge of the jury. There were two stated bases for the application: first, the ‘use of the word “confession” is very very strong, it is actually a finding of fact‘; and, secondly, ‘making a very strong statement such as “confession” … may give a fair minded person a reasonable apprehension that [the judge] has pre-judged this case’. The judge refused to discharge the jury, instead giving the direction set out .
Finally, the two comments in the charge that the applicant’s counsel drew attention to were as follows:
In very simple terms, that is the offence. It is attempted; I have just told you what ‘attempt’ means. It must be immediately, and not merely preparatory. Do you follow that? It is probably the shortest obtain property by deception charge I have done in my life, I think. But in this trial, it is really about whether — if you were satisfied beyond reasonable doubt he was guilty of the arson, well it is hard to see how there would be a defence to this. A comment from me.
…
If you are satisfied beyond reasonable doubt he was involved in the fire, then it is a matter of logic that it would just seem to flow [that the applicant is guilty of perjury].
No sort of clever legal defences to any of this. It is did he do it or not? …
The first of the two passages above relates to the judge’s direction on the elements of attempting to obtain property by deception. In it, all his Honour was attempting to convey to the jury was that the issue for them was a very simple one. If the applicant was guilty of arson, it would logically follow that he was also guilty of attempting to obtain property by deception. He identified the comment as a non-binding comment of his own. The comment cannot have redounded to the detriment of the defence.
As to the second comment, the judge in effect was telling the jury that, if the applicant was involved in the arson, then it followed logically that he had perjured himself. Once more, the comment could not have caused any prejudice to the defence. The judge’s statement that there were no ‘clever legal defences to any of this’, was his Honour’s way of telling the jury that the case was relatively simple and straightforward.
In their totality, the interjections impugned in this case are of a different order to those in Piccolotto and Percival. Certainly, they did not occur with nearly the same persistence. Moreover, save for one comment,[17] the interjections provoked neither an application for the judge to disqualify himself nor an application for the discharge of the jury. Furthermore, no directions were sought with respect to the interjections, presumably because the applicant’s counsel did not see any need for directions to guard against any prejudice flowing from the judge’s comments. By contrast, in Percival, an application was made to discharge the jury, and directions were subsequently given; and in Piccolotto, an application was made for the judge to disqualify himself on the basis of bias, and directions were also subsequently given.
[17]See footnote 16.
For these reasons, the essential complaint embodied in the ground of appeal is not made out.
But, even were we of the view that the judge’s interjections had the potential to cause a miscarriage of justice, we would conclude that appellate intervention is not warranted, since we regard the applicant’s conviction as inevitable. As counsel for the applicant in this Court acknowledged, the prosecution case was very strong. Indeed, having read the record of the trial, and being at a loss to determine what the ‘defence’ in the trial had been, towards the beginning of oral submissions by the applicant’s counsel, the Court enquired of counsel what the defence at trial had been. With disarming frankness, counsel informed us that it apparently had been ‘putting the prosecution to its proof’.
In our view, once the covertly recorded conversations between the applicant and Nikolai were introduced at trial, there was no realistic prospect of acquittal on any charge. Simply stated, the taped conversations were damning. The applicant convicted himself out of his own mouth. Conviction was inevitable.[18]
[18]Baini v The Queen (2012) 246 CLR 469, 480–1 [29]–[32] (‘Baini’); Andelman v The Queen (2013) 38 VR 659, 677 [85] (‘Andelman’).
Furthermore, acknowledging that inevitability of conviction is not necessarily determinative of whether there has been a substantial miscarriage of justice, the judge’s interjections cannot realistically be said to constitute such a serious departure from the prescribed processes for trial, that there has been a substantial miscarriage of justice notwithstanding the inevitability of conviction.[19]
[19]Baini, 479–80 [27]; Andelman, 677 [85].
The sentence application
On the plea, the applicant’s trial counsel made the somewhat unrealistic submission that a community correction order (‘CCO’) should be imposed on the applicant. In summary, counsel relied upon:
· the applicant’s lack of any prior or subsequent convictions;
· the applicant’s prospects of rehabilitation;
· the delay in finalising the proceedings;
· the principle of totality;
· the reduced need for specific deterrence;
· the fact that the applicant was kept in ‘lockdown’ for 20 hours a day whilst in custody between 17 December 2016 and 7 February 2017; and
· the fact that the offending was out of character.
The judge rejected the notion that a CCO was appropriate, and sentenced the applicant according to the following table:
Charge Offence Sentence Cumulation 1 Arson 5 years Base 2 Reckless conduct endangering serious injury 3 years 2 years 3 Attempting to obtain property by deception 3 years 2 years 4 Perjury 1 year Nil Total effective sentence 9 years’ imprisonment Non-parole period 6 years
In this Court, counsel for the applicant[20] submitted that the individual sentences on all charges (save for the perjury charge) were manifestly excessive.
[20]Counsel in this Court was not trial counsel.
With respect to the sentence imposed on the arson charge — five years’ imprisonment — it was submitted that the conclusion of manifest excess is supported by an analysis of current sentencing practices. A sentence of five years’ imprisonment for arson, so it was submitted, ‘is at the upper end of sentencing practices’. The median term of imprisonment for arson, where arson is the ‘principal sentence’, is two years and six months’ imprisonment. Further, in the period 2011—2012 to 2015—2016, no offender was sentenced to more than four years and two months’ imprisonment for arson.[21] Those statistics, it was contended, accord with this Court’s recent observation in Beevers,[22] that ‘sentences of imprisonment of two, three or four years’ imprisonment for arson perpetrated against houses … seem to accord with current sentencing practices’.
[21]Citing Sentencing Advisory Council, Sentencing Trends for Arson in the Higher Courts of Victoria 2011–2012 to 2015–2016 (Sentencing Snapshot 201, April 2017).
[22]Beevers v The Queen [2016] VSCA 271, [41] (Priest and Santamaria JJA) (‘Beevers’).
Counsel for the applicant argued that a ‘very high proportion (two-thirds)’ of the sentences on both the charges of reckless endangerment and attempting to obtain property by deception was cumulated upon the sentence for arson, such cumulation being excessive. A ‘significantly more modest amount of cumulation’ was warranted. It was submitted that these two orders for cumulation, ‘on top of an already very long base sentence’, demonstrate that insufficient weight must have been given to the principle of totality, particularly in circumstances where the judge had to be astute to avoid the risk of double punishment.
Although the applicant’s counsel conceded that the offending was serious; that the judge found that there was no remorse; and that there had been a degree of premeditation; counsel submitted that the judge nonetheless had to keep in mind that:
· the applicant had no prior convictions;
· there had been a lengthy delay in bringing the matter to trial, and the applicant was not sentenced until more than three and a half years after the arson;
· the prosecutor acknowledged on the plea that the damage to the premises had been ‘limited’; and
· the principle of totality was prominent, there being four charges brought covering this attempted insurance fraud by arson.
With respect to ground 2, counsel for the applicant submitted that the judge wrongly sentenced the applicant on the basis of HB’s s 6AAA declaration, and thus engaged in impermissible two-stage sentencing, such that the sentence passed on the applicant is ‘vitiated’.[23]
[23]Perri v The Queen [2016] VSCA 89, [15] (Coghlan JA).
The respondent submitted that the sentence of five years’ imprisonment for arson was appropriate, as were the other individual sentences and orders for cumulation. It was submitted that the offending was ‘exceptionally serious’, and the potential danger posed was exemplified by the injury suffered by HB. The arson, reckless conduct endangering serious injury and attempting to obtain property by deception, were each serious examples of those offences. Even if components of the overall sentence might be regarded as ‘stern’ for a man with no prior convictions, the sentence was warranted ‘taking into account the criminality and gravity of the offending’. Moreover, the judge made no error in referring to the s 6AAA declaration made with respect to HB.[24]
[24]Ibid, [17].
It is convenient to turn first to ground 2.
Prior to giving evidence in the applicant’s trial, HB had pleaded guilty in the County Court to charges of arson and reckless conduct endangering persons, relating to the fire he had set at the restaurant on 11 August 2013. He also pleaded guilty to recklessly causing serious injury, relating to an assault on a female on 12 November 2003[25] (and two summary charges of failing to answer bail). On 14 November 2016, a judge sentenced HB to be imprisoned for 18 months on the charge of arson, for eight months on the charge of reckless conduct endangering serious injury[26] and for nine months on the charge of recklessly causing serious injury.[27] Two months of the sentence imposed for reckless conduct endangering serious injury, and two months of the sentence imposed for recklessly causing serious injury, were ordered to be served cumulatively with each other and with the sentence imposed for arson, leading to a total effective sentence of 22 months’ imprisonment. The judge also imposed a CCO of two years’ duration (with conditions), to commence upon the expiry of the sentence of imprisonment. With respect to the declaration required under s 6AAA of the Sentencing Act 1991, the judge said:
In this case I might say that it seems to me that the exercise required by s 6AAA of the Sentencing Act 1991 is made even more theoretical in a case where you are to be given the benefit of the undertaking you have made. Doing the best I can, I state that had you been found guilty of these offences after trials, the sentence I would have imposed would have been of seven years with a non-parole period of five years.
[25]HB was charged with recklessly causing injury on 20 October 2004. He failed to appear at the County Court when required, and effectively was at large until arrested in October 2013.
[26]HB was not charged, as was the applicant, with attempting to obtain property by deception or with perjury.
[27]HB was convicted and discharged on the two charges of failing to answer bail.
The trial judge’s remarks when imposing sentence upon the applicant suggest that he thought that the s 6AAA declaration made in HB’s case notionally translated to a declaration that, but for HB’s plea of guilty, a sentence of six years’ imprisonment, with a non-parole period of four years, would have been imposed on the charges of arson and reckless conduct endangering serious injury. Hence, the judge made the following observations about HB’s sentence and the s 6AAA declaration that had been made with respect to him:
… I start with the prospects of your co-accused. He pleaded guilty to arson and reckless conduct endangering and received a sentence of 22 months. He gave assistance to the police, gave evidence in the trial, worked with the police with a covert operator, suffered very serious injuries and the judge who sentenced him to the 18 months gave consideration to all those factors. Allowing for the fact that he was also sentenced for a matter that occurred many years ago, the s 6AAA was effectively a six with a four. That six with a four did not, of course, include perjury and did not include, of course, the attempted obtain property by deception.
…
I have indicated already what the s 6AAA declaration was for [HB]. He faced none of the dishonesty charges and had all those matters going for him including the injuries. You have none of those benefits. A very significant gaol term is the only available option here. It was suggested to me that I could consider a community corrections order. As I expressed during the course of the plea I would regard any sentence that involved a community corrections order as being totally inappropriate and an appellable [scil, appealable] error. I indicated about four times during the plea what the co-accused’s s 6AAA declaration was and I think that that was an astute assessment by the judge who sentenced him.
In our view, the judge’s remarks with respect to the s 6AAA declaration in HB’s case do not betray error. It is plain, in our opinion, that his Honour was endeavouring to explain why he thought that a CCO was inappropriate for the applicant’s offending. In so doing, the judge was making clear that he was required to apply the principle of parity; but that, in so doing, he had to have regard to those features which distinguished HB’s case from that of the applicant, the three main distinguishing features being HB’s guilty plea; his considerable assistance to authorities; and the serious injuries that he suffered in the commission of his crimes.[28]
[28]See R v Barci (1994) 76 A Crim R 103; Howton v The Queen (2012) 62 MVR 207; Pasznyk v The Queen (2014) 43 VR 169.
The notion of equal justice requires identity of outcome in cases that are relevantly identical, but requires different outcomes in cases that are different in some relevant respect.[29] A sentencing judge has the task of identifying any relevant differences between the cases of co-offenders in justification of disparate sentences. In the case of sentences imposed on co-offenders, appellate intervention is not warranted where disparity is justified by differences in age, background, criminal history, general character or the part each has played in the relevant criminal conduct or enterprise.[30]
[29]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ).
[30]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs J); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ).
In our opinion, the judge did not fetter the exercise of the sentencing discretion in the applicant’s case by reference to the s 6AAA relating to HB. As we have said, in the sentencing remarks referred to above, the judge was doing no more than endeavouring to articulate those considerations which justified disparity between the sentence imposed on HB, and that to be imposed on the applicant; and the judge’s reasons for concluding, as part of that exercise, why a CCO could not be imposed.
Ground 2 cannot be upheld.
In contending that the sentence for arson was manifestly excessive, counsel for the applicant, as we have mentioned, placed a deal of reliance on the observation in Beevers, that ‘sentences of imprisonment of two, three or four years’ imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case) seem to accord with current sentencing practices’.[31]
[31]Beevers, [41] (emphasis added).
Beevers involved an unoccupied house, detached and relatively remote from other buildings. Setting the fire in that case posed no risk to any person, or to other buildings. In the present case, the restaurant was situated in a row of connected commercial premises, in circumstances where there were occupied dwellings on the second storey above, it being a circumstance of aggravation that the occupants of the burned building or neighbouring buildings were put at risk[32] (subject, of course, to considerations of double punishment). Thus, Beevers and factually similar cases do little to inform an assessment of current sentencing practices for a case involving a mixture of commercial and residential premises, where innocent people are placed at risk of serious harm.
[32]R v Dowell (1982) 6 A Crim R 113, 116. See also DPP v Ralph [2004] VSCA 158, [12]; Phillips v The Queen [2017] VSCA 313, [62].
But assuming that it can be said that current sentencing practices suggested that sentences of four years’ imprisonment were at the upper end of the range for arson, as Gageler and Keane JJ in Dalgliesh[33] made clear, current sentencing practices do not set boundaries on what a court may reasonably impose as a sentence. Their Honours said:[34]
The approach to current sentencing practices described by the Court of Appeal appears to have originated in its decision in Director of Public Prosecutions v CPD.[35] The approach was adopted in the present case before the decision of this Court in R v Kilic.[36] It manifests the error identified in Kilic of treating current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed.[37]
Section 5(2)(b) [of the Sentencing Act 1991] does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders,[38] to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles,[39] provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a ‘band’ derived from current sentencing practices.
Sentences are not binding precedents,[40] but are merely ‘historical statements of what has happened in the past’. …
[33]DPP v Dalgliesh (a Pseudonym) (2017) 349 ALR 37.
[34]Ibid, 54 [81]–[83] (citations in original).
[35](2009) 22 VR 533; [2009] VSCA 114 (CPD).
[36](2016) 259 CLR 256; 339 ALR 229; 91 ALJR 131; [2016] HCA 48 (Kilic).
[37]Kilic at [22].
[38]Section 1(a) of the [Sentencing Act 1991].
[39]See Hili v R (2010) 242 CLR 520; 272 ALR 465; [2010] HCA 45 (Hili) at [49].
[40][Wong v The Queen (2001) 207 CLR 584; 185 ALR 233; [2001] HCA 64] at [57].
This was a very serious example of arson, exposing, as it did, multiple commercial and residential premises to damage, and a number of occupants of the residential premises to serious injury. Moreover, apart from the applicant’s previous good character, there was very little by way of mitigation. Certainly there was no mitigation flowing from a plea of guilty.
In those circumstances, rather than regarding the individual sentence imposed on the applicant for arson as being manifestly excessive, we regard it as being very lenient. We think it probable that the judge imposed a lenient sentence for the charge of arson being conscious of the need to avoid double punishment. But whatever the reason, a significantly more severe sentence would have been well-justified.
Similarly, we consider the individual sentence on charge 2, reckless conduct endangering serious injury, to be lenient. The charge embraced a number of victims,[41] all of whom were placed in danger by HB’s setting fire to the restaurant. That fact needed to be given recognition in any sentence imposed. Thus, in circumstances where multiple victims were exposed to the risk of serious injury by reason of a premeditated and deliberately set fire, and there was an almost complete absence of mitigating features, we regard the sentence on charge 2 also as being lenient. The applicant’s is a very serious example of the offence. Once more, a more severe sentence would have been warranted.[42]
[41]Although eight people were asleep in the premises when the fire was set, there were four victims specifically named in the charge,
[42]See Phillips v The Queen [2017] VSCA 313.
Of course, given that the single act of setting fire to the restaurant was the conduct which placed the victims in danger of serious injury, and was also the conduct which founded the charge of arson,[43] there was a need to avoid doubly punishing the applicant. It must be remembered, however, that although notionally both offences resulted from a single act (or acts) in setting the restaurant premises alight, arson and reckless conduct endangering serious injury possess very different elements. The essence of the crime of arson is the intentional destruction of, or damage to, property by fire. On the other hand, charge 2 required that the applicant foresaw that placing another (or others) in danger of death was a probable consequence of setting the fire, and a reasonable person in their position, engaging in setting the fire in the same circumstances, would have realised that they had placed another in danger of serious injury.[44] Thus, there is little (if any) overlap in the elements of the offences.
[43]Cf Crimes Act 1958, s 197(2).
[44]R v Abdul-Rasool (2008) 18 VR 586, 591 [19]; R v Marijancevic (2009) 22 VR 576, 580 [17]; Phillips v The Queen [2017] VSCA 313, [43].
Notwithstanding that there is little (or no) overlap in the elements of the offences of arson and reckless conduct endangering serious injury, however, exposing occupants of premises to the risk of harm is a recognised feature of aggravation in the case of arson. Thus, some concurrency between the sentences on charge 1 and charge 2 was necessary to avoid the risk of double punishment.
As to the sentence imposed for attempting to obtain property by deception, we regard it as unremarkable. The purpose of the arson was to obtain for the applicant an insurance payout to which he was not entitled. Given the premeditation of the offence, and the scant mitigation, a sentence of three years’ imprisonment was proper (subject, once more, to the need to avoid double punishment). And plainly, some cumulation between the sentences imposed on the charge of arson and the charge of attempting to obtain property by deception was justified.
Quite apart from any consideration of the individual sentences imposed on each charge, and the degree of cumulation between those individual sentences effected by the judge’s orders, however, we are of the view that the total effective sentence is wholly appropriate when regard is had to the totality of the applicant’s offending. Indeed, in circumstances where the fire was set so as to destroy or damage property with a view to dishonestly obtaining an insurance payout, recognising that multiple premises were put at risk of damage or destruction and multiple occupants were exposed to the risk of serious harm, we consider that a more severe sentence might have been imposed. There being no amelioration of sentence flowing from a plea of guilty, and little other mitigation, there is no prospect that the total effective sentence might be reduced.[45]
[45]Criminal Procedure Act 2009, s 280(1).
Conclusion
The applications for leave to appeal against conviction and sentence must both be refused.
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