O'Neal v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0240

MARCUS O’NEAL	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL, LYONS and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2024
DATE OF JUDGMENT:	13 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 129
JUDGMENT APPEALED FROM:	[2023] VCC 2140 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Perverting the course of justice and committing indictable offence on bail – Applicant sentenced to 11 months’ imprisonment with a 24 month Community Correction Order (‘CCO’) – Offending conduct in order to avoid conviction on charge of dealing with property suspected to be the proceeds of a crime – Whether sentencing judge failed to take into account fact that applicant had no prior convictions – Applicant indicated intention to plead guilty on 10 November 2022 but no formal plea entered until 31 October 2023 – Whether judge erred in failing to apply Worboyes discount given intention to plead guilty in November 2022 – Time of intention to plead guilty relevant to Worboyes discount – Leave granted and appeal allowed – Applicant resentenced to 8 months’ imprisonment with a 12 month CCO (involving treatment and rehabilitation conditions).

Sentencing Act 1991, s 5(2)(e).

Worboyes v The Queen (2021) 96 MVR 344, applied; Cameron v The Queen (2002) 209 CLR 339, considered.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Chris McLennan & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
LYONS JA
T FORREST JA:

The applicant pleaded guilty to one charge of attempting to pervert the course of justice and the related summary offence (‘RSO’) of committing an indictable offence whilst on bail.
Following this plea on 31 October 2023, the applicant was sentenced on 20 November 2023 as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
2	Attempting to pervert the course of justice[1]	25 years’ imprisonment	10 months’ imprisonment	Base
4 – RSO	Commit indictable offence whilst on bail[2]	3 months’ imprisonment	2 months’ imprisonment	1 month
Total Effective Sentence:		11 months’ imprisonment with a 24 month Community Correction Order (‘CCO’)
Non-Parole Period:		N/A
Section 6AAA Statement:		2 years and 6 months’ imprisonment with a non-parole period of 18 months

[1]Contrary to Common Law.

[2]Contrary to s 30B of the Bail Act 1977.

The applicant seeks leave to appeal against his sentence on the following proposed grounds:
1.The learned sentencing judge erred in failing to recognise that the applicant’s guilty pleas were entitled to an additional sentencing discount, on account of the fact that they were entered at a time when the criminal justice system was still trying to recover from the impact of the COVID-19 pandemic.
2.The learned sentencing judge erred in her approach to the applicant’s ‘other offending’.
3.The total effective sentence and individual sentence are manifestly excessive.
For the reasons that follow, we would grant leave to appeal on proposed grounds 1 and 2 and allow the appeal. As a result of these conclusions, it is not necessary to deal with proposed ground 3 but it is necessary to resentence the applicant. We would sentence the applicant to a combined sentence of 8 months’ imprisonment with a 12 month Community Correction Order (‘CCO’) (involving treatment and rehabilitation conditions) to commence at the completion of the term of imprisonment.[3]

The offending[4]

[3]Sentencing Act1991, s 44.

[4]This description of the circumstances is drawn from the Summary of Prosecution Opening, which was tendered as Exhibit 1 on the applicant’s plea.

At around 2:43 am on 14 December 2021, the applicant was observed by police sleeping in the front driver seat of his vehicle, which was parked on Macaulay Road in North Melbourne. The front passenger door was open.
The police officers observed a number of small, zip lock bags scattered throughout the vehicle. After conducting a search of the vehicle, police located various drugs of dependence and $62,385 in cash. The cash was found as follows:
(a)$49,950 found in a plastic Coles bag in the right rear passenger side footwell of the vehicle;
(b)$7,050 found in the pocket at the back of the front driver side seat;
(c)$5,305 found in a bag on the front passenger seat; and
(d)$70 in loose cash found elsewhere throughout the vehicle.
The applicant was transported to the police station where he participated in a record of interview. When asked about the cash, the applicant said the $49,950 located in the right rear passenger side footwell had been given to him by a friend to purchase a car and the balance was earnt through his work as a plumber.
At the conclusion of the interview the applicant was bailed and charged with trafficking cocaine, various drug possession offences and one count of dealing with property suspected of being the proceeds of crime, being the $62,385 in cash (the ‘December 2021 charges’).
About six months later, on 24 June 2022, police investigators attended the home address of the applicant and lawfully searched the premises. They located various drugs of dependence and further suspected proceeds of crime. Investigators also seized his mobile phone. The applicant was arrested and charged (the ‘June 2022 charges’). The applicant was later bailed to appear at the Melbourne Magistrates’ Court on 10 August 2022.
On 2 August 2022, the applicant’s solicitor emailed the police prosecutor as part of the ordinary summary case conference process and attempted to resolve the applicant’s pending charges. The email contained three attachments, including scanned copies of two bank statements, one Commonwealth Bank of Australia statement in the applicant’s name, and one ME Bank statement in the name of the applicant’s twin brother, Mr Ryan O’Neal (the ‘bank statements’).
In the body of the email, the applicant’s solicitor said that the charge of dealing with property suspected of being the proceeds of crime (relating to the $62,385 in cash found in his vehicle) ought be withdrawn. The email outlined:
[The applicant] instructs that the monies found in his vehicle were as follows: $50,000 was provided to him by his brother Ryan O Neal [sic] for the purchase of a car, bank documents showing this transfer, plus the withdrawals by the accused, will be provided. The Police is [sic] further invited to contact Mr Ryan O’Neal to obtain a statement from him regarding that amount of money.
The remainder was for cash jobs from his self-employed business. Invoices have also been provided by [the applicant] which will be provided to Police …
Police reviewed the bank statements and observed several apparent inconsistencies and errors on the face of the documents. The relevant officer thought it ‘was odd’ that Mr Ryan O’Neal’s ME Bank statement did not include any other debits or credits beyond a purported $50,000 transfer to the applicant. The applicant’s Commonwealth Bank of Australia statement showed a credit of $50,000 with the description ‘Money for Vehicle Purchase’ and five withdrawals of $9,800 in November 2021. On further inspecting the document, the officer observed errors, which led her to believe information in the document may have been falsified.
Having formed a belief that the bank statements may be fraudulent, police examined the applicant’s mobile phone, which had been seized on 24 June 2022. WhatsApp and Threema messages between the applicant and Mr Ryan O’Neal revealed a plan to have copies of their bank statements altered so that the applicant could provide them to his solicitor and use them as a defence to the December 2021 charges.
It is convenient to set out the portions of the summary of prosecution opening that relay the development of the plan, the contents of the messages and the contents of the true bank statements:
21.On 16 June 2022, Mr Ryan O’NEAL sent his ME Bank customer ID and access code to Mr Marcus O’NEAL via text message and told him which account number to use. He said that his bank account had ‘fuck all money’ in it. On the same day, Mr Marcus O’NEAL told Mr Ryan O’NEAL about Mr Richard CHALHOUB, who he said that he would pay to alter the bank statements. Referring to Mr CHALHOUB, he said: “he is an old school bro, like 50 years old, good bloke yeah, does for a living, I’m just giving him 1000 bucks.”
22.Detective Senior Constable RIZZO also observed text messages between Mr Marcus O’NEAL and Mr CHALHOUB. On 22 June 2022, Mr O’NEAL sent Mr CHALHOUB his Commonwealth Bank of Australia client number, BSB, account number and online password. He told Mr CHALHOUB that he needed the altered bank statements by the weekend because there was a Court hearing the following Friday.
23.Having reviewed the text messages and formed a belief that the bank statements had been altered, Detective Senior Constable RIZZO obtained true copies of the statements from ME Bank and the Commonwealth Bank of Australia. She reviewed the genuine statements. The transfer of $50,000 from the account of Mr Ryan O’NEAL into the account of Mr Marcus O’NEAL did not appear on either statement; nor did the withdrawals of $9,800 appear on the Commonwealth Bank of Australia account statement in the name of Mr Marcus O’NEAL.
Further investigations revealed email and text communications between the applicant and Mr Ryan O’Neal and the applicant and Mr Richard Chalhoub, including screenshots of the altered bank statements, a discussion of payment and that Mr Chalhoub advised the applicant to print the bank statements at Officeworks. Police also discovered a series of text messages between the applicant and Mr Ryan O’Neal in which the applicant sent images of the bank statements and the applicant made comments to the effect that he would now be able to get the seized money back.
On 18 August 2022, investigators attended the applicant’s home, executed a search warrant and seized a further mobile phone. The applicant, Mr Ryan O’Neal and Mr Chalhoub were all arrested on the same day.
The applicant participated in a record of interview. In it, the applicant:
(a)said that he banked with ME Bank and the Commonwealth Bank of Australia;
(b)stated he was not sure where his lawyer got the bank statements that were provided to police; and
(c)admitted he knew Mr Chalhoub but not personally and said he was ‘not sure’ why he gave his bank details to Mr Chalhoub.
The applicant otherwise provided a ‘no comment’ interview. Mr Ryan O’Neal also provided a ‘no comment’ interview. Mr Chalhoub made full admissions as to the offending.
At the time of offending, the applicant was on bail.
The applicant pleaded guilty to both the December 2021 charges and the June 2022 charges in the Magistrates’ Court. On 28 September 2022, he was sentenced to a 12 month CCO (involving only treatment and rehabilitation conditions) and on 5 October 2022, he was sentenced to a 12 month CCO (involving 120 hours of community work) in respect of these charges.

Procedural background

The applicant was charged with respect to this offending on 18 August 2022. A committal mention proceeded on 10 November 2022 by way of straight hand-up brief to allow a sentencing indication to proceed in the County Court. A sentencing indication hearing took place on 22 February 2023, but the applicant did not accept the sentence indication.
There was a directions hearing on 20 March 2023: it appears that at this time or soon thereafter, a plea hearing was set down for 1 June 2023. The 1 June 2023 plea hearing was adjourned to allow the applicant and Mr Ryan O’Neal to obtain separate and new legal representation. As noted above, the applicant’s plea hearing proceeded on 31 October 2023, alongside co-offenders Mr Chalhoub and Mr Ryan O’Neal.

Reasons for sentence

The judge’s reasons for sentence deal with the applicant and the two co-offenders.[5]
[5]DPP v O’Neal [2023] VCC 2140 (‘Reasons’).
At the commencement of the reasons, the judge described the charges against each co-offender and provided a brief description of the offending.[6] The judge, under the heading ‘Prior Criminal History’, addressed the criminal history of each offender. Given their relevance to ground 2, it is appropriate to set out those paragraphs in full:
7Mr Ryan O’Neil [sic], you have no prior criminal record. This entitles you to a consideration of leniency on the sentence to be imposed.
8Mr Richard Chalhoub, you have admitted prior offending in 2018/2019 relating to stalking offences and a breach of a Community Corrections Order (‘CCO’) which you were placed on in relation to that offending. It seems that a resulting further CCO was complied with. The nature of that offending allows some consideration of leniency with respect to this sentence.
9[The applicant] as at the date of this offending, you had no prior convictions. However, your criminal record now includes two convictions for trafficking and possession of illicit substances and dealing with the proceeds of crime committed in circumstances that are relevant to the current offending, the most serious of which was committed well prior to this offence.
10You were placed on supervised community corrections orders in the Magistrates Court for the earlier offending in September and October 2022. You were on bail for those offences when you committed this offending. The fact that you had no convictions for any criminal matter up until this significant offending commencing in December 2021 will be taken into account as part of your overall narrative.
[6]Ibid [1]–[6].
The judge then set out the relevant facts of the offending in more detail.[7] The judge referred to the interviews of each offender (noting that the applicant and Mr Ryan O’Neal made no admissions) and noted that ‘pleas of guilty were indicated by all three offenders at an early stage, although pleas were not actually entered until 31 October 2023’.[8]
[7]Ibid [11]–[25].
[8]Ibid [26]–[27].
The judge then noted the serious nature of the offence of attempting to pervert the course of justice. She then addressed the relevant factors to consider when assessing the objective seriousness of the offending,[9] namely:
(a)the consequence the offending was calculated to avoid was the applicant being convicted of a serious criminal offence where the applicant was the ‘sole and significant beneficiary’ of the conduct;
(b)the applicant was involved in contemplating and directing the offending from the time of the police interview when he first came up with the idea until he instructed his solicitor to put forward the bank statements and the false explanation;
(c)the judge acknowledged that the initial lie (i.e. that the cash was from Mr Ryan O’Neal for the applicant to buy a car) may not have been made considering the final acts, but nevertheless, the applicant persisted with the plan, which required taking several further steps;
(d)while each offender performed a task of deception, the applicant was the ‘primary instigator and motivator’ for the offending;
(e)the offending was premeditated over an extended period: the planning followed what (the judge inferred) was a spontaneous lie and developed to include multiple other people in the deception; and
(f)there was no actual deception achieved, nor was violence involved (which is a lack of aggravating circumstance).[10]
[9]Referring to the observations of Nettle JA in R v Buscema [2011] VSC 206 (‘Buscema’).
[10]Reasons, [38]–[43].
The judge then addressed the personal circumstances and background of each co-offender.[11] As to the applicant, the judge referred to the contents of Dr Matt Treeby’s report. Dr Treeby considered the effect of the applicant’s acquired brain injury (‘ABI’) on his neuropsychological functioning. In short, Dr Treeby concluded that:
(a)the applicant meets the criteria for a mild neurocognitive disorder;
(b)the applicant has a degree of executive dysfunction, which can compromise his ability to make well-reasoned and appropriate decisions and ‘would have been evident at the time of the alleged offending’;
(c)his presentation is consistent with an adjustment disorder with mixed anxiety and depression at times; and
(d)the applicant would find a custodial term more onerous than somebody in good health due to his ABI and possible PTSD associated with the injury.[12]
[11]Ibid [44]–[119].
[12]Ibid [57]–[58], [61].
However, the judge rejected the applicant’s submission that his moral culpability should be reduced due to his mental state at the time of the offending,[13] concluding:
82There is nothing in Dr Treeby’s report to suggest that the extended and planned nature of this offending for a period of a number of weeks, or up to nearly a couple of months, in which several different steps were required and which involved convincing others to participate in the offending behaviour, had anything to do with your impaired impulse control or your ability to exercise appropriate judgement.
[13]Ibid [67].
The judge went on to note that there is ‘no doubt’ that the applicant’s intention behind the offending was to ‘avoid conviction for the December 2021 charges’ and to have the illicit funds returned to him, as well as maintaining his ‘apparent prosocial image’ to his family.[14] The judge continued:
85While this may assist those who will seek to counsel you in due course, it does not reduce your moral culpability for the commission of the offence. By the time you committed this offence, you had committed serious drug offences and on your own report, were hopelessly addicted to an array of substances and therefore, no longer working.
[14]Ibid [84].
The judge accepted, based on the evidence of Dr Treeby set out at [27(d)] above, the applicant’s ABI and possible PTSD could make imprisonment more burdensome for him than for someone without such conditions which, consistent with limb five of R v Verdins (‘Verdins’)[15] would ameliorate the sentence to be imposed on the applicant. However, the judge did not agree that imprisonment would significantly impact the applicant’s mental health. Further, the judge concluded that the remaining Verdins limbs were not relevant to the applicant’s sentence.[16]
[15](2007) 16 VR 269; [2007] VSCA 102.
[16]Reasons, [87]–[88].
The judge expressed some concern that the applicant seemed to avoid accepting full responsibility for his behaviour notwithstanding his guilty plea.[17]
[17]Ibid [89].
In all these circumstances, the judge concluded that a term of imprisonment was required for the applicant:
92… I am of the view that considering your enhanced involvement in this offending compared to your co-offenders, the serious nature of the offending, your involvement in other offending within the same timeframe as this offending, and the need for general and specific deterrence with respect to offences such as this, a short term of imprisonment is required.
The judge accepted that, by virtue of the CCOs (imposed in relation to the December 2021 and June 2022 charges), the applicant’s rehabilitation had commenced.[18] The judge also accepted that the applicant had engaged in ‘successful and continued counselling’.[19] The judge noted that a combination sentence would allow the applicant to continue his rehabilitation program.[20]
[18]Ibid [94]–[95].
[19]Ibid [65].
[20]Ibid [95].
The judge accepted that the applicant, like his co-offenders, was entitled to benefit from his early guilty plea.[21] Further, the judge referred to the fact that the early stage at which the pleas of guilty were entered is evidence of remorse.[22] The judge continued:
121Remorse is considered to be a useful indicator of, or a precursor to, rehabilitation.
122In addition, I note that an early indication of plea has assisted the prosecution in that preparation was not required for trial, and as such, there is some general benefit to the administration of justice.
[21]Ibid [120], [134].
[22]Ibid [120].

However, the judge rejected the applicant’s submission that he should receive a further discount for his early plea of guilty based upon Worboyes v The Queen (‘Worboyes’):[23]
129Where counsel have submitted that each of the offenders should receive a further discount for an early plea of guilty, I note that the delays in the Victorian County Court are no longer at a level where they were when the Worboyes decision was handed down.
130The delays in this matter were not caused by court delays, but I am told by one of the offenders seeking alternative representation. The delays have allowed each of the offenders to improve their position within the community and make a better presentation with respect to prospects of rehabilitation.
[23](2021) 96 MVR 344; [2021] VCSA 169 (‘Worboyes’).
Finally, in relation to parity between the applicant and his co-offenders, the judge observed:
126So while generally it is the case that co-offenders receive consistent sentences, [the applicant] has been significantly involved in substance abuse-related trafficking offences between December 2021 and June 2022. That offending was directly related to this offending. He was then involved in this offending for a period in excess of six weeks. Accordingly, the differences in sentences that will be imposed today are well justified.

Proposed ground 1

As set out above, proposed ground 1 is that the judge erred in failing to recognise the applicant was entitled to an additional sentencing discount, on account of the fact that his guilty plea was entered at a time when the criminal justice system was still trying to recover from the impact of the COVID-19 pandemic, consistent with Worboyes.
In Worboyes, this Court reaffirmed that there are utilitarian benefits from pleas of guilty, which should result in the mitigation of punishment from such a plea, namely the public interest in facilitating pleas of guilty in order to conserve the court’s trial processes and to alleviate the congestion in criminal courts that the hearing of contested trials creates.[24] Further, the Court held that, while the courts continue to ‘labour under the adverse effects of the pandemic’ (which had resulted in the lists of criminal courts becoming increasingly congested and produced unacceptable delays), a plea of guilty made during the pandemic’s adverse effects should ordinarily attract a more pronounced amelioration of the sentence than at any other time.[25] While not quantifying the extent of any discount, the sentencing judge must ensure that the plea of guilty results in a ‘perceptible amelioration’ of the sentence (the ‘additional Worboyes discount’).[26]
[24]Ibid 356 [34] (Priest, Kaye and Forrest JJA).
[25]Ibid 356 [35].
[26]Ibid 356–257 [39].
As is evident from the summary of the reasons set out above, the judge:
(a)recognised that the applicant indicated he would plead guilty at an early stage although his pleas were not formally entered until 31 October 2023;[27]
(b)acknowledged that the applicant was entitled to benefit from his early plea of guilty;[28] and
(c)declined to take into account any additional Worboyes discount.[29]
[27]Reasons, [27].
[28]Ibid [120], [134].
[29]Ibid [129].
Thus, the issue on appeal in relation to proposed ground 1 is whether it was open to the judge to give no additional Worboyes discount for the applicant’s early guilty plea.

The contentions

The applicant submitted that the judge’s failure to apply the additional Worboyes discount amounts to a specific sentencing error and, as a result, the discretion should be re-opened. The applicant submitted that this Court has recently affirmed the ongoing application of the additional Worboyes discount, including in El-Hassan v The King.[30] The applicant also referred to Powell v The King,[31] when, in the course of resentencing with respect to a plea entered in June 2023, this Court affirmed that the plea required an ‘actual and palpable amelioration of sentence’ on account of the additional Worboyes discount.[32] The applicant referred to several other recent authorities to similar effect.[33]
[30][2023] VSCA 307, [26]–[27] (Priest and Beach JJA).
[31][2023] VSCA 235.
[32]Ibid [33] (Beach, Walker JJA and Hollingworth AJA).
[33]Glatz v The King [2023] VSCA 161, [30] (T Forrest and Osborn JJA); Seiler v The King [2023] VSCA 171, [50] (Niall and Walker JJA); Surtees v The King [2023] VSCA 42, [9] (Kyrou, Walker and Kaye JJA).
The respondent submitted that the applicant was not entitled to any additional Worboyes discount given that his guilty pleas were formally entered on 31 October 2023 and that the effects of COVID-19 on the court system had dissipated by that time. As to the evidence of the effects of COVID-19 on the listing of criminal trials by that time, the respondent relied upon the following matters:
(a)On 12 October 2022, the Victorian pandemic declaration expired, without further extension, and all associated Victorian government pandemic orders ceased.
(b)Statistics produced by Court Services Victoria relating to criminal proceedings across the Victorian court system indicated that the courts were no longer experiencing a backlog of criminal cases created by COVID-19, noting that:
(i)as at October 2023, the County Court’s criminal caseload was lower than pre-pandemic levels and the Supreme Court’s was only marginally higher, after having already dropped below the pre-pandemic level earlier in 2023; and
(ii)since December 2021, the criminal caseload of the Magistrates’ Court has steadily returned to pre-pandemic levels; since 2022, the number of cases finalised in the Magistrates’ Court has outstripped the number of cases initiated in that Court; at December 2023 the caseload was two per cent higher than pre-pandemic levels.
(c)By September 2023, the Supreme Court confirmed it had cleared its ‘pandemic backlog’.
(d)On 9 October 2023, Chief Judge Kidd of the County Court issued a statement confirming the Court’s criminal jury trial lists are ‘past the point of being overwhelmed or plagued by related delays’ and that the backlog has been substantially addressed.
The respondent submitted that this evidence demonstrates the backlog in criminal cases had largely been returned ‘within acceptable limits’[34] by the time the applicant’s guilty pleas were entered on 31 October 2023, with the result that the system could not have been described as beleaguered or in a state of crisis, as it was when Worboyes was decided. As a result, the respondent submitted that the judge did not err in this regard.
[34]Worboyes (2021) 96 MVR 344, 351 [22] (Priest, Kaye and T Forrest JJA); [2021] VCSA 169.
In the course of argument, it was raised that the judge acknowledged that the applicant indicated he would plead guilty ‘at an early stage’ although pleas were not actually entered until 31 October 2023.[35] Counsel for the applicant submitted that, if the applicant did not plead guilty at the committal mention on 20 November 2022, at the very least he indicated his intention to do so at that time, which led to the sentencing indication hearing being scheduled in the County Court on 22 February 2023 and the original plea hearing date (which was fixed for 1 June 2023). As a result, consistent with s 5(2)(e) of the Sentencing Act 1991 (‘Sentencing Act’) counsel for the applicant submitted that the time of the ‘early’ plea was 20 November 2022. Counsel for the respondent did not accept this submission. However, she did accept that between the time of the directions hearing on 20 March 2023 and the original plea hearing date on 1 June 2023 there was a ‘commitment of sorts to entering a plea of guilty’. We pause to note that the chronology in the summary of prosecution opening records that, at the 20 March 2023 directions hearing, the matter was set down for the applicant’s plea of guilty.

Consideration

[35]Reasons, [27].

Under s 5(2)(e) of the Sentencing Act, when sentencing an offender, a court must have regard to the stage of the proceeding at which the offender pleaded guilty ‘or indicated an intention to do so’. A plea of guilty is relevant, and often highly significant, to sentence because it may provide evidence of remorse and acknowledgment of responsibility and because it has utilitarian value. The utilitarian value reflects the saving to the State, victim and witnesses of avoiding the trauma of a trial. In Cameron v The Queen, Kirby J observed that:
Given that under our criminal justice system it is the right of the accused to put the state to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered.[36]
[36](2002) 209 CLR 339, 361 [67] (citations omitted); [2002] HCA 6.
In the context of the pandemic, which placed significant and immeasurable additional strains on the criminal justice system, a plea of guilty had enhanced utilitarian value. At the height of the pandemic, when no or few trials could be conducted, each plea of not guilty added to that burden and extended the time for trial. For that reason, a sentencing court should ‘view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice’.[37] This reflects the importance of ‘practical encouragement’ towards a plea of guilty by providing an appreciable incentive for the guilty to plead.[38]
[37]Worboyes (2021) 96 MVR 344, 356 [35] (Priest, Kaye and T Forrest JJA); [2021] VCSA 169.
[38]R v Shannon (1979) 21 SASR 442, 451 (King CJ); R v Thomson (2000) 49 NSWLR 383, 412–413 [128] (Spigelman CJ); [2000] NSWCCA 309.
Although the strength of the prosecution case is not material to the utilitarian value, it is necessary to take into account the complexity and scale of the prosecution and the corresponding burden on limited resources. The timing of the plea will be an important factor: an earlier plea offers ‘distinctive and substantially greater benefits over a plea that occurs at the commencement of the trial’.[39] An assessment of the utilitarian value of a plea is not an empirical exercise that calls for a ledger of savings. A broad assessment is called for.
[39]R v Thomson (2000) 49 NSWLR 383, 415 [133] (Spigelman CJ); [2000] NSWCCA 309.
As s 5(2)(e) of the Sentencing Act recognises, an indication of a plea of guilty is relevant. The plea or an indication of a plea will usually provide the time at which the assessment of utilitarian value is to occur. In our view, there is no reason in logic or principle why this should not also apply to the additional Worboyes discount.
In the reasons, the judge accepted that the applicant’s plea was an early one. However, when considering the utilitarian value the judge observed that delays in the County Court ‘are no longer at a level’ they were at when Worboyes was decided.[40] Although the reasons should not be read in an overly technical or pernickety way, we are persuaded that the judge erroneously confined her assessment of this aspect of the utilitarian value to the state of the lists at the time of sentence rather than to the time of the plea or the earlier indication of a plea of guilty.
[40]Reasons, [129].
Further, in light of the respondent’s acceptance that, at the latest, the applicant determined or indicated an intention to plead guilty in respect of the offending between 20 March and 1 June 2023, the judge erred in failing to apply the additional Worboyes discount to the applicant’s sentence. This is because it was not in dispute that, during that period, Victorian courts were still dealing with the backlog of criminal cases created by the COVID-19 pandemic.
Moreover, the prosecution summary relied on at the plea stated that the applicant indicated his intention to plead guilty on 20 November 2022 (leading to the 22 February 2023 sentencing indication hearing in the County Court). At that point in time, the impact of the pandemic was still being felt in the criminal justice system and the utilitarian value of a plea needed to take that into account. Even though the applicant sought a sentence indication at the same time as indicating that he would plead guilty, his indication was a serious step and provided the plea was later entered as it was, from that time he was entitled to the benefit of his pleas of guilty.
In these circumstances, we have formed the view that the applicant was entitled to an additional Worboyes discount on any sentence imposed which was actual and palpable and that the judge erred in failing to apply such a discount to the sentence she imposed on the applicant.
As a result, we would grant leave in relation to proposed ground 1 and allow the appeal. Further, we consider that the nature of the error is such that the applicant must be resentenced.
For completeness, consistent with the respondent’s submissions, recent authorities have acknowledged that the effects of the pandemic on the criminal justice system are subsiding. For example, in DPP v Hillman,[41] Hollingworth J observed that before the end of 2023 the Supreme, County and Magistrates’ Courts had each announced that they had cleared their pandemic backlog.[42] Likewise, Hollingworth J noted that custodial conditions had ‘largely returned to their pre-pandemic state’.[43] The material relied upon by the respondent set out above (which was not challenged by the applicant) confirms this view: indeed the evidence suggests that the effects of the pandemic and the backlog of criminal cases in this State ceased by the end of September or October 2023. This is at least nine months after the applicant indicated an intention to plead guilty.
[41][2024] VSC 100.
[42]Ibid [76].
[43]Ibid. As a result, Hollingworth J found that any additional Worboyes discount should be ‘modest’. In that case, the accused had pleaded guilty to various offences on both 26 October 2022 and 1 September 2023, and also to a rolled up new indictment on 14 December 2023.

Proposed ground 2 — Other offending

The contentions

Proposed ground 2 is that the judge erred in her approach to the applicant’s ‘other offending’ namely the December 2021 charges and the June 2022 charges.
In summary, the applicant submitted that this ‘other offending’ (which led to CCOs being imposed in September and October 2022) could not be regarded as ‘prior convictions’ in this sentencing exercise. As a result, relying on R v Rumpf,[44] the applicant submitted that there were limitations on the way that the judge could use the applicant’s ‘other offending’ in the sentencing exercise.
[44][1988] VR 466, 475 (McGarvie JJ, Young CJ and Murray J agreeing).
The applicant submitted that the judge nevertheless made use of this other offending in an impermissible way on three occasions in the reasons. The first was by treating the applicant differently compared with his co-offenders in [7] to [10] of the reasons (set out above at [24]). This is because the judge made comments to the effect that Mr Ryan O’Neal and Mr Chalhoub were each entitled to ‘some consideration of leniency’ and ‘consideration of leniency’, respectively, but no similar comment was made with respect to the applicant.
The second was by using the ‘other offending’ to increase the applicant’s sentence in rejecting the submission that his moral culpability should be reduced on account of his ABI: at [85] the reasons (set out at [29] above). The third was also by using the ‘other offending’ as one basis for sentencing the applicant to a ten-month term of imprisonment, compared to his co-offenders’ non-custodial sentences: at [92] and [126] of the reasons (set out at [32] and [36] above).
The respondent submitted that the judge did not use the other offending impermissibly. The respondent contended that, although the judge took into account the fact that the applicant had no criminal history at the time of the offending, there were obvious differences between him and his co-accused. As a result, the respondent submitted that it was unavoidable that the judge would refer to the other offending. This is because the December 2021 charges and the June 2022 charges, leading to the two CCOs, were inextricably linked to the relevant offending. However, counsel for the respondent conceded that [10] of the reasons was an ‘incredibly clumsy attempt to distinguish the applicant from the co-accused’.
Likewise, the respondent submitted that the other offending was relevant to assessing the applicant’s moral culpability given that it was the reason for this offence being committed. The respondent submitted that it was necessary for the judge to consider all relevant facts relating to the offence of attempting to pervert the course of justice. As a result, the respondent submitted that there was no error in [85] of the reasons.
The respondent did not accept that the judge used ‘other offending’ as basis for sentencing the applicant to a term of imprisonment at [92] and [126] of the reasons. Rather, the respondent contended that, when considering sentencing parity, the judge identified the different roles of each co-accused; the applicant was the principal offender, who recruited others to assist him avoid prosecution for serious offending and to retrieve seized cash.
In the course of argument, counsel for the respondent appeared to concede that the other offending was only relevant to specific deterrence and rehabilitation and that [85], [92] and [126] of the reasons were ‘clumsy’ and/or could have been more simply expressed to reflect that.

Consideration

We have formed the view that the judge erred in her approach to the applicant’s ‘other offending’, namely the conduct giving rise to the December 2021 charges and the June 2022 charges.
This is because we have formed the view that, based on the reasons, the judge failed to take into account that the applicant had no prior convictions and to ameliorate the sentence she imposed on him as a result. While the judge referred to the fact that the applicant had no prior convictions, she made comments to the effect that Mr Chalhoub (who did have prior offences) and Mr Ryan O’Neal were entitled to ‘some consideration of leniency’ and ‘consideration of leniency’ respectively.[45]
[45]Reasons, [7]–[10]. See above at [24].
The judge made no such comments in respect of the applicant.[46] Indeed, rather than referring to the applicant’s ‘entitle[ment] to some leniency’,[47] the judge referred to:
(a)the fact that the applicant’s ‘criminal record’ now includes two convictions (the subject of the December 2021 charges and the June 2022 charges) ‘in circumstances that are relevant to the current offending, the most serious of which was committed well prior to this offence’;
(b)the sentence imposed for those convictions; and
(c)the fact that the applicant ‘had no convictions for any criminal matter up until this significant offending commencing in December 2021 will be taken into account as part of your overall narrative’.[48]
[46]Ibid.
[47]Ryan v The Queen (2001) 206 CLR 267, 278–279 [35]–[37] (McHugh J). See also 297–300 [100], [102], [107], 112] (Kirby J), 319 [178] (Callinan J); [2001] HCA 21.
[48]Reasons, [9]–[10].

In our view, the manner in which the applicant’s criminal history was discussed, in contrast to his co-offenders, discloses that the judge failed to take into account the fact that the applicant had no prior convictions in ameliorating his sentence in any way. Further, in our view, it is difficult to ascertain what the judge intended to convey by referring to the applicant’s ‘overall narrative’.
In these circumstances, we would grant leave in relation to proposed ground 2 and allow the appeal on the basis of this error alone. Further, we consider the nature of the judge’s error in this regard is such that the applicant must be resentenced.
In light of this conclusion, it is unnecessary to consider the other matters relied upon by the applicant in relation to proposed ground 2. However, we note the comments of counsel for the respondent in the course of argument referred to at [59] and [62] above. In this regard, we agree with counsel for the respondent that the references to the other offending at [85], [92] and [126] were, at the very least, clumsily expressed observations.
In our view, in determining the sentence to be imposed on an offender, care needs to be taken when considering subsequent convictions. As observed in the course of argument, it may be relevant to specific deterrence and/or rehabilitation. On occasions it may be relevant to the seriousness of the offending for which the offender is being sentenced. This is particularly so when the subsequent convictions are directly related to the offending for which the sentence is to be imposed. We shall deal with this further below when resentencing the applicant.

Proposed ground 3 — Manifest excess

As a result of our conclusion on grounds 1 and 2, it is unnecessary to deal with proposed ground 3 which is that the judge erred by imposing a manifestly excessive total effective sentence and individual sentence.

Resentencing

For the reasons set out in relation to ground 1 and 2, it is necessary to resentence the applicant.
For the purpose of resentencing the applicant we have reviewed the exhibits on the plea before the judge and the parties’ submissions.
We have formed the view that, in respect of the offending set out at [2] above, the applicant ought be sentenced to a combination sentence of 8 months’ imprisonment with a 12 month CCO (involving treatment and rehabilitation conditions) to commence at the completion of the term of imprisonment.
In reaching this conclusion, we have taken into account the following factors.
First, perverting the course of justice is a serious offence as evidenced by the maximum penalty of 25 years’ imprisonment. This offence is ‘conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition’.[49]
[49]Buscema [2011] VSC 206, [6] (Nettle JA).
Second, as to the gravity of the offending, we consider that the applicant’s offending was at the lower mid-range of a serious offence. We are conscious that the applicant’s purpose or intention behind the offending was twofold: to avoid conviction on the relevant December 2021 charges and to have the funds seized by the police as the proceeds of drug trafficking returned to the applicant. We note that, where the sentence was imposed in relation to the December 2021 charges, a forfeiture order of those funds was made with the consent of the applicant.
Third and relatedly, the applicant was the person who stood to benefit most from the offending and was the instigator of this offending which took place over approximately six weeks. As a result, he was in a very different position to his co-offenders.
Fourth, there is a need for general and specific deterrence. As to general deterrence, as noted at [75] above, this is a serious offence and thus denunciation is required. As to specific deterrence, we have had regard to this factor, including in the context of the applicant’s rehabilitation.
Fifth, the applicant pleaded guilty at an early stage which entitles him to the ‘ordinary’ discount for an early guilty plea and the additional Worboyes discount.
Sixth and relatedly, by his early plea of guilty the applicant has demonstrated remorse. In our view, this remorse is also evidenced by his consent to the forfeiture order.
Seventh, some consideration of leniency is required due to the fact that the applicant had no prior convictions at the time of the offending.
Eighth, the applicant’s ABI and possible PTSD are such as to make imprisonment more burdensome for him than for someone without such conditions, which would ameliorate the sentence to be imposed consistent with limb five of Verdins.
Finally, the applicant has good prospects of rehabilitation. In this context, we have had regard to the personal circumstances of the applicant set out in the report of Dr Treeby and Dr Luke Armstrong. Most relevantly, we have had regard to the fact that the applicant’s use of illicit drugs increased from his early twenties until the time of this offending. We accept, as did the judge, that the applicant had engaged in successful and continued counselling. Further, we consider that a combination sentence including the imposition of a further CCO (involving treatment and rehabilitation conditions) to commence at the completion of the term of imprisonment would allow the applicant to continue his rehabilitation.

Conclusion

As a result of the foregoing, we would impose a sentence of 8 months’ imprisonment on charge 2, and 2 months’ imprisonment on charge 4. We would order that the sentence imposed on charge 4 be concurrent with that imposed on charge 2. The applicant will be placed on a 12 month CCO to commence at the completion of the term of imprisonment.
Accordingly, the outcome of the resentencing is as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
2	Attempting to pervert the course of justice[50]	25 years’ imprisonment	8 months’ imprisonment	Base
4 – RSO	Commit indictable offence whilst on bail[51]	3 months’ imprisonment	2 months’ imprisonment	Nil
Total Effective Sentence:		8 months’ imprisonment with a 12 month CCO
Non-Parole Period:		N/A
Section 6AAA Statement:		15 months’ imprisonment with a non-parole period of 11 months

[50]Contrary to Common Law.

[51]Contrary to s 30B of the Bail Act 1977.

[2024] VSCA 129

13 June 2024