Mikael v The Queen
[2022] VSCA 119
•23 June 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0017
| STEVEN MIKAEL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 June 2022 |
| DATE OF JUDGMENT: | 23 June 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 119 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1295 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Attempted aggravated carjacking and damaging property – Sentences of four years’ imprisonment and 12 months’ imprisonment with six months’ cumulation – Whether individual sentences and total effective sentence of four years and six months’ imprisonment with three years non-parole manifestly excessive – Bad criminal history – Poor prospects of rehabilitation – Sentences stern but within range – Appeal dismissed.
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| Counsel | |||
| Applicant: | Ms G Connelly | ||
| Respondent: | Mr C Boyce QC | ||
Solicitors | |||
| Applicant: | Valos Black & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA:
Introduction
On 16 August 2021, the applicant, now aged 40 years,[1] pleaded guilty in the County Court to attempted aggravated carjacking with an offensive weapon[2] and intentionally damaging property.[3] He also pleaded guilty to the related summary offence of committing an indictable offence whilst on bail.[4]
[1]His date of birth is 27 July 1981.
[2]Crimes Act 1958, ss 79A and 321P. The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act 1958, s 197. The maximum penalty is 10 years’ imprisonment.
[4]Bail Act 1986, s 30B. The maximum penalty is three months’ imprisonment.
Following a plea, on 6 September 2021 the judge sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Attempted aggravated carjacking
4 years
Base
2
Intentionally damaging property
12 months
6 months
Summary
Committing an indictable offence on bail
3 months
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Total effective sentence:
4 years and 6 months’ imprisonment
Non-parole period:
3 years
Pre-sentence detention:
942 days
Section 6AAA statement:
5 years with 3 years and 6 months non-parole
Other orders:
Forfeiture
The applicant now seeks leave to appeal on a ground that contends that the ‘sentences on charges 1, 2 and the related summary offence, the order for cumulation and the non-parole period are manifestly excessive in all the circumstances’.
For the reasons that follow, we would grant leave to appeal, but dismiss the appeal.
The offending
It is convenient to adopt the description of the applicant’s offending as set out in the Summary of Prosecution Opening:[5]
[5]Footnotes omitted; emphasis added.
1. … At the time of this offending, [the applicant] was 37 years old.
2. The complainants, Hamze Haddara, and Kamal Kanaan, were unknown to the [applicant].
3. On 15 November 2018 at about 1.45 am, Haddara was parked in his black BMW sedan, in Malmsbury Drive, Meadow Heights. He was on the phone to his partner, waiting for her to return home.
4. Haddara saw a silver Mercedes C180 stop in front of his car at a 45-degree angle, which blocked his car so he couldn’t drive forward.
5. The driver of the silver Mercedes, [the applicant], got out of the car and was holding a metre-long silver bar. The complainant described it as a metre-long, chrome-looking bar, which was about an inch or an inch and a half in diameter.
6. The [applicant] approached the driver’s side window and raised the bar over his head with his hands. As he was doing this, he was yelling at Haddara to ‘get out’ and to ‘give me the car keys’.
7. Haddara put his window down as asked the [applicant] what he wanted. The [applicant] again told Haddara to get out of the car and give him the car keys.
8. When Haddara refused, the [applicant] leaned into the car and tried to grab the keys from the ignition. As the car was keyless, there was no key in the ignition for the [applicant] to take. As he was doing that, Haddara pushed the [applicant’s] face with his hand. (Charge 1: Attempted Aggravated Carjacking – Offensive Weapon)
9. As soon as the [applicant] was out of the car, Haddara drove off and around the silver Mercedes. He drove down the street towards Barry Road and saw a police car at a roundabout just before the end of Malmsbury Drive, which had pulled over another car at the time.
10. Haddara flashed his lights at police and pulled over behind them. Sergeant Coates approached Haddara who identified himself and told Coates that the driver of a silver Mercedes parked in front of him, approached him with a metal pole and demanded his car keys.
11. As Coates was speaking with Haddara, he heard three loud bangs coming from the direction of Malmsbury Drive. The bangs sounded similar to glass smashing. Haddara then left to look for the silver Mercedes.
12. As Sergeant Coates returned to his police vehicle with First Constable Thompson, he saw a silver Mercedes (registration 1LU 4MG) drive past, followed by Haddara. Haddara yelled out of the car that he was chasing the silver Mercedes.
13. Sergeant Coates and FC Thompson turned into Malmsbury Drive and eventually located the silver Mercedes (registration 1LU 4MG). A male matching the description given by Haddara was approaching the front gate of 2 Kenly Court with a screwdriver in his hands. The man, later identified as the [applicant], was arrested by police.
14. Police conducted a search of the silver Mercedes (registration 1LU 4MG) and recovered a silver metal pole.
…
17. Prior to police attending, witness Bernadit Isa was at home and heard screaming outside. She looked through her window and could see [the applicant], smashing the windows of a car. The car was parked across the street from her house. She observed the [applicant] to be wearing a grey hoody. He had parked his car behind the neighbour’s car. She observed him either to be holding a bit of pipe or wood to hit the car with. She saw the [applicant] break the front and back windows.
…
19. Victim Kamal Kanaan was woken by his sister who thought that someone was trying to break into his car as she had heard noises from that direction.
20. When Kanaan went outside, he saw police officers present. He walked over to his car and saw that the rear windshield had been smashed in, with fragments of glass inside his car. The front windshield was shattered, but still intact, with two big points of impact. (Charge 2: Intentionally Damaging Property)
21. At the time of this offending, the [applicant] was on bail. (Related Summary Offence Charge 4: Committing an Indictable Offence Whilst On Bail)
22. The [applicant] was conveyed to the Broadmeadows Police Station and participated in a Record of Interview. He stated, inter alia:
· He parked his car and went into a friend’s house, and when he came back the car was gone;
· The car didn’t belong to him;
· It was a new, white Mercedes, registration AGU 524;
· When he went outside, he went berserk;
· There was a guy there stalking his cousin’s house. He asked him what he was doing there, and the guy said that he was waiting for his girlfriend;
· He was inside the car and the guy tried to scratch him. The guy drove off and was pulled over by police;
· The police came behind him and he was in another car. He told police that one of the bolts of his front bumper had come off, and he only had a flat-head screwdriver and needed a Phillips head. Police asked him what he was doing with a screwdriver and he said he needed to fix the car;
· The guy was sitting in a black BMW sedan;
· He (the [applicant]) parked his car in front of him (the guy in the black BMW) and said to him, ‘Brother, what are you doing here?’;
· He denied trying to hit the guy with a pole;
· He admitted that there was a vacuum pole in his car;
· The damaged silver Mercedes was his friend’s car;
· It has always been parked there and had been sitting there ‘forever’;
· He was driving the silver Mercedes which had the pole inside it, and that was his friend Steve’s car;
· He denied smashing the windows of the car with the pole.
Reasons for sentence
In his reasons for sentence, the judge said that he considered the attempted carjacking to be ‘towards the lower end of that offence’. He also accepted that the applicant’s ‘disturbed thinking derailed any sense or reaction to the victim’s presence’. The offence ‘was committed without that much planning’, and, although the applicant’s presence clearly threatened force, there ‘was no actual violence, disguises, or injuries’.
The judge noted that the applicant’s family fled war in Iraq when he was aged 12 or 13 years, he having been exposed ‘to much widespread and extreme violence’. The applicant found his father’s strict discipline in Australia difficult to accept, and he turned to drugs. When the applicant recently was imprisoned the family broke up.
The applicant, the judge said, found school difficult because of language. He completed year 12, however, and had a number of jobs, including as a doorman and bricklayer. His one serious relationship ended because of his drug use. The applicant began using cannabis in 1999 when aged 18, and then used ecstasy, ‘speed’ and ‘ice’ when aged in his 20s. His ‘ice’ use ‘spiralled out of control’. He told a psychologist that, when not in prison, he drinks half a bottle of cognac a day. The judge said that it was clear that the applicant’s ‘extensive history of substance abuse has dominated [his] life and caused a chaotic life, provoking aggression and a type of behaviour which is common when [he immerses himself] in drug using criminal connections’. The applicant’s ‘drug use creates serious instability of behaviour and compromises [his] ability to behave lawfully and productively in the community and this has been a pattern now for a number of years’.
Ms Carla Ferrari, consultant psychologist, had provided two reports. The judge noted that Ms Ferrari expressed the opinion that the applicant presented ‘with [post-traumatic stress disorder] and a history of major depressive disorder, largely resolved and in partial remission’. She confirmed that substance abuse and depression would have affected the applicant’s behaviour and ‘caused emotional dysregulation, reduced self-inhibition leading to reckless impulsive conduct and impaired judgement’. Ms Ferrari, the judge said, carried out an evaluation of risk and found the applicant ‘to be of moderate risk of recidivism, predicated primarily on continued engagement with treatment and engagement with employment’. The applicant ‘would be assisted by a mental health plan to remain abstinent from all drugs and illicit substances and undertaking a treatment program, as well as employment’.
With respect to the relevance of delay, the judge made the following observations:
Delay is a very relevant and significant matter in this case. You are on remand since 15 November 2018. Committal hearings were adjourned on two occasions and only heard in September 2019. COVID-19 restrictions were further extended, then further extended the likely timing of a trial and then the plea. The current health crisis impacted on the time of the resolution, the length of time in custody, the cessation of visits and programs and with the way in which your time was served, including quarantine and lockdowns. Delay has two aspects. The first is that of fairness and, in this context, I take this period into account as adding to its uncertainty to the burden of reclusion [sic]. Secondly, there is the aspect of progress towards and prospects of rehabilitation. I accept that the delay probably caused some consternation by its length. The second limb in your case showed you did take some steps to reform through appropriate professional assistance. However, in my view, despite these efforts, in order to give this limb full weight, real rehabilitation would need to be demonstrated. As I said, unfortunately, you relapsed. Real progress is required, and your fresh remand argues against it.
Nevertheless, I accept that you have ultimately accepted responsibility and have pleaded guilty. I have referred to these details to make clear that I have taken delay into account but not as fully as if you had demonstrated rehabilitation. I also accept that your plea is some evidence of remorse, although, this is a difficult matter to determine fully. I accept that you expressed remorse to Ms Ferrari. Your plea did not come at the earliest opportunity, rather on the eve of a trial listing. The plea carries a utilitarian benefit of having avoided such a criminal trial. In these difficult days of pandemic, a plea is worthy or greater weight than usual, given it is made at a time when the administration of justice has been impacted on by COVID-19 and was given with the prospect of returning to a period of imprisonment at a time when the health crisis, not only has impacted the logistical administration of prison, but also the delivery of services within that system, coupled with the potential for infection in its closed confines even as we currently see in the New South Wales prison system. And this is an added burden of imprisonment which I take into account.
The judge then set out details of the applicant’s prior criminal history, and said:
I do not recite these priors because you will be punished again for them. You will not but they are a strong indication in relation to a very relevant aspect of your sentence and antecedence [sic]. This history impacts on your prospects of rehabilitation which, in my view, are poor. The impact of the need to specifically deter you becomes very relevant. The courts, over many years, have tried remedies and sanctions to endeavour to help you, to give an opportunity to reform and to deal with your problems. Invariably, you did not take up the opportunity to do so time after time after time. Your numerous priors for violence and also, particularly, many priors for criminal damage, show a contemptuous disregard for peoples’ property and propensity of reckless and intentionally destructive conduct.
General deterrence is primary in this sentence. In an endeavour to deter you and deter any other who may be disposed to commit such criminal offending, the court must denounce this behaviour as totally unacceptable and apply just punishment in order to address the criminality and protect the community and specifically deter you from further offending. This is particularly so, given your relevant priors, the criminal damage which are reoccurring. In my view, there should be a cumulative period to reflect the distinct nature of the offences which appear unrelated.
The history of the current proceeding
It is necessary to note the path that the applicant’s case has taken through the courts:
· On 15 November 2018 the applicant was arrested for the present offending.
· The applicant was committed for trial on 4 September 2019. His trial was listed for hearing in the County Court on 28 September 2020.
· On 26 May 2020, a judge of the County Court granted the applicant bail. The applicant had then been in custody for 599 days.
· Champion J heard a DPP appeal against the County Court’s decision to grant bail on 20 July 2020, and reserved his decision.
· Whilst still on bail, on 5 August 2020 the applicant was arrested, charged and remanded in custody for offences which included criminal damage, carrying a controlled weapon and unlawful assault.
· On 12 August 2020, Champion J dismissed the DPP’s appeal.[6]
· Bail for the charges in the present matter was revoked on 27 August 2020.
· On 9 September 2020, the applicant was convicted on charges of criminal damage, carrying a controlled weapon and unlawful assault, and was sentenced to 45 days’ imprisonment.
· A sentence indication on the present matter was sought from a County Court judge on 25 September 2020. The judge indicated the following sentences: on charge 1, 30 months’ imprisonment; on charge 2, nine months’ imprisonment; and on the summary offence, one month’s imprisonment. On 1 October 2020, the applicant declined the sentence indicated.
· In July 2021, the prosecution was advised that the applicant would enter a plea of guilty to the indictment that was the subject of the sentence indication.
· On 14 July 2021, the applicant was arraigned and the matter was listed for plea on 10 August 2021.
· Due to Court technical issues and a prison lockdown, the plea did not proceed on 10 August 2021, but was adjourned to 16 August 2021 when the plea was heard.
· On 6 September 2021, the sentencing judge imposed the impugned sentence.
[6]DPP v Mikael [2020] VSC 492.
The applicant’s criminal history
The applicant has a bad criminal history, beginning with a sentence imposed in 1999 for burglary, theft, going equipped to steal and aggravated cruelty to an animal. Since then he has consistently breached the criminal law, his offending including crimes of violence; damaging property; dishonesty offences; drug offences; ‘street offences’; driving offences; offences breaching intervention orders; and bail offences. He has been sentenced to terms of imprisonment on a number of occasions.
Among the many relevant prior offences in his history, the applicant has been convicted of manslaughter (2008); recklessly causing injury (2000, 2003, 2012 and 2018); affray (2004); aggravated burglary (2007); attempted armed robbery (2007); assaulting police (2001); unlawful assault (2016); threats to kill (2016 and 2018) and to cause serious injury (2016 and 2017); and damaging property (2001, 2003, 2004, 2012 (twice), 2017 and 2018).
Significantly, the applicant has a history of breaching court orders, including: failing to answer bail (2001 and 2018); breaching an intensive correction order (2001); breaching a community based order (2001); breaching a suspended sentence of imprisonment (2004); contravening a final personal safety intervention order (2016); persistent contravention of family violence order (‘FVIO’) (2016); contravening a FVIO, intending harm or fear (2016); breaching community correction orders (2016 and 2018); committing an indictable offence while on bail (2018); and contravening a FVIO (2018).
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted that the judge was correct to find that the attempted carjacking fell towards the lower end of the spectrum of seriousness for the offence. The applicant’s behaviour was ‘bizarre’ and ‘the motivations for it not evidently purposeful’. Further, counsel submitted that this was a case where the maximum penalty ‘was of little relevance’. Hence, a sentence of four years’ imprisonment for ‘a low-level example of the offence’ was not reasonably open.
As to charge 2, the applicant’s counsel submitted that a sentence of 12 months’ imprisonment, with half of it to be served cumulatively on the base sentence, ‘are sentencings orders greater than it was reasonably open to impose in all the circumstances’. While the damage to the windscreen was undoubtedly costly and annoying, it was repairable and involved no loss of anything sentimental. There was ‘nothing planned or vindictive’ about the conduct, it too being ‘a product of the applicant’s disturbed thinking’.
Further, counsel submitted that it was not reasonably open to the judge to impose the maximum sentence for the summary offence of committing an indictable offence whilst on bail.
Ultimately, counsel for the applicant submitted that the total effective sentence and non-parole period were not reasonably open to the sentencing judge having regard to the following:
· first, the applicant pleaded guilty, knowing that his plea would result in a further period of imprisonment to be served under pandemic conditions;[7]
· secondly, the applicant had endured much of his pre-sentence detention in pandemic conditions;
· thirdly, the judge found some remorse;
· fourthly, the applicant had offered to plead guilty to charge 2 and the related summary offence when the matter was still in the Magistrates’ Court;
· fifthly, the applicant’s criminal history could not justify a disproportionate sentence;
· sixthly, the applicant had had a very difficult childhood which was connected with diagnosed major depressive disorder, post-traumatic stress disorder and amphetamine and alcohol use disorders;
· seventhly, the applicant had made considerable efforts towards his rehabilitation while in jail; and
· finally, the delay of almost three years was significant.
[7]Counsel cited Worboyes v The Queen (2021) 96 MVR 344.
The respondent’s submissions in this Court
In all the circumstances – including that the sentencing judge described the offending on charge 1 as ‘towards the lower end of that offence’ – the respondent’s counsel fairly conceded that it was reasonably arguable that the total effective sentence imposed on the applicant was manifestly excessive. Leave to appeal should therefore be granted, but the appeal dismissed. The respondent’s counsel submitted that, when the objective facts of the offending are ‘properly assessed and examined against the offences’ applicable maxima’, and when the applicant’s extensive criminal history ‘is properly brought to account’, the relevant sentences ‘cannot be seen to stand wholly outside the applicable range’.
Counsel for the respondent submitted that the applicant eschewed any reliance upon Verdins[8] principles to establish a connection between any mental condition experienced by the applicant and the offending. Further, it was not suggested that any mental condition suffered by the applicant might make the service of his sentence more burdensome than would otherwise be the case. Nor was it suggested that a mental condition experienced by the applicant might be made worse by virtue of him having to remain in prison.
[8]Verdins v The Queen (2007) 16 VR 269 (‘Verdins’).
The respondent’s counsel submitted that it was apparent that the applicant, when a teenager in Iraq, had been exposed to violence. Having fled Iraq as a young man, it seems that the applicant then lived a ‘fairly rough existence in Greece’. Nevertheless, it was not put on the plea that the applicant’s upbringing was so deprived that Bugmy[9] principles were engaged. Counsel acknowledged, however, that while Verdins and Bugmy were not invoked, the applicant’s past difficulties, and their consequent psychological repercussions, could provide context to the applicant’s offending.
[9]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Counsel for the respondent also acknowledged that the applicant’s plea of guilty, whilst not early, was delivered in circumstances of some remorse. It also had to attract a significant utilitarian benefit in light of the parlous state of the criminal lists brought about by the pandemic, which would also affect the manner in which the applicant would serve his sentence. Counsel also acknowledged the importance of delay. Nonetheless, the primary offending was, counsel submitted, ‘quite troublesome’, and was committed whilst the applicant was on bail.
The applicant, counsel submitted, ‘has an unenviable criminal history’ which includes offences involving violence and property damage. His prospects of rehabilitation are poor. He had offended only a relatively short period after his release from custody. Specific deterrence and community protection were thus important, as was general deterrence.
Counsel drew attention to the fact that the maximum penalty available on charge 1 was 20 years’ imprisonment. And counsel submitted that, while the imposition of the maximum penalty allowable for the offence of committing an indictable offence whilst on bail ‘might attract scrutiny’, the sentence was to be served wholly concurrently on the base sentence. Further, counsel submitted that even the length of the sentence on charge 2 is ‘somewhat of secondary importance’. The ‘real battleground’ concerning manifest excess exists in an assessment of the four year base sentence for the attempted aggravated carjacking and the order for six months’ cumulation of the sentence on charge 2. Ultimately, the respondent’s counsel submitted that the total effective sentence and non-parole period were open to the judge in the sound exercise of the sentencing discretion.
Discussion
At first blush, the sentence of four years’ imprisonment imposed on charge 1, attempted aggravated carjacking, appears to be very stern, particularly when regard is had to the applicant’s plea of guilty – albeit somewhat belated – and the fact that the plea was entered during the COVID-19 pandemic. The sentences of 12 months’ imprisonment on charge 2, damaging property, and three months’ imprisonment on the summary offence, committing an indictable offence whilst on bail, also invite a closer look. Any first impressions that the sentences are severe somewhat abate, however, when proper attention is given to the applicant’s highly relevant criminal history.
Axiomatically, the applicant is not to be punished again for his prior offending. His deplorable antecedents are relevant, however, in several ways, being indicators of: his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[10] Significantly, the High Court made clear in Veen [No 2][11] that, although the applicant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant
to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
[10]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) (‘O’Brien’).
[11]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ). See also O’Brien, 718; Bugmy, 595 [45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The applicant would be hard-pressed to suggest that his current offending was an uncharacteristic aberration, as opposed to manifesting an ongoing attitude of disobedience to the law. Indeed, given that no Bugmy or Verdins considerations are in play, the applicant’s moral culpability is underscored by his antecedent criminal history, and must be viewed as significant. Sentences of lesser severity than actual imprisonment (many of which he has breached) and moderate sentences of imprisonment do not appear to have much succeeded in curbing the applicant’s dangerous, anti-social and criminal inclinations and activities. The applicant needs to be deterred from committing crimes of violence, and offences against property, which may only be achieved through punishment by way of a period of imprisonment of appropriate severity. His prospects of rehabilitation are, as the judge remarked, poor.
The applicant’s may have been – as the judge considered it to be – towards the ‘lower end’ of seriousness of the offence of attempted aggravated carjacking, but the offence itself is an inherently serious offence. By his plea, the applicant admitted that, while he had with him an offensive weapon, he attempted to steal Mr Haddara’s motor vehicle, putting him in fear that he ‘would be then and there subject to force’. The applicant’s conduct involved blocking Mr Haddara’s vehicle in with another, and demanding the keys to the vehicle whilst brandishing a weapon. Hence, it was far from a trivial offence. Moreover, the offence was committed when the applicant was on bail, so much being an aggravating feature.[12]
[12]R v Gray [1977] VR 225, 229–230 (Gillard, McInerney and Crockett JJ); R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J, Fullagar and Marks JJ agreeing); R v Basso & Frazetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA), 404–5 [57]–[63] (Charles JA); DPP v Galea & Mosut (2000) 112 A Crim R 507; Pop v The Queen (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA, Bongiorno JA agreeing); Samuels-Orunmwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA, Maxwell ACJ and Redlich JA agreeing); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA); Makieng v The Queen [2022] VSCA 52, [45] (Priest and Kyrou JJA). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
Furthermore, apart from the effects of the pandemic, there was not a great deal that mitigated the offending. As we have said, although he may have had a difficult adolescence, the applicant did not attract the kind of mitigation that he might had Bugmy and Verdins principles had work to do. That is not to minimise the utilitarian benefit to the system of justice flowing from his plea in times of the pandemic, or the added burden of imprisonment caused by it, but his plea of guilty could not be considered as early. And, although, of course, the applicant is not to be punished for rejecting the relevant sentence indication, the fact remains that about a year’s delay in finalising the applicant’s case was the result of its rejection. To that extent, the mitigating influence of delay is reduced.
Given the foregoing, although we regard the sentence imposed on the first charge as stern, we consider it to be within the bounds of sound discretionary judgment. It is not so severe as to be outside the range properly open to the sentencing judge.
Moreover, although the sentence on charge 2 – involving smashing the rear windshield of Mr Kanaan’s car – might also be regarded as stern, it must be remembered that the applicant has been dealt with by courts on at least seven previous occasions for damaging property. Looked at in that light, a sentence of 12 months’ imprisonment cannot properly be characterised as manifestly excessive. Nor can the extent of cumulation ordered properly be said to be beyond the available range. Plainly, the need for specific deterrence and community protection are both important.
Finally the sentence imposed for the bail offence must also be viewed against the backdrop of the applicant’s prior conviction for bail offences. Against that backdrop, we do not consider it to be manifestly excessive.
For these reasons, we consider the total effective sentence to be within range. That being so, the non-parole period is not open to legitimate criticism.
Conclusion
As we have said, the respondent’s counsel acknowledged that the sentence imposed in this case invited scrutiny, and conceded that leave to appeal should be granted. It was proper of counsel to do so. We would thus grant leave to appeal. But, for the reasons we have set out, we would dismiss the appeal.
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