Perri v The Queen
[2016] VSCA 89
•5 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0168
| ARMANDO DOMENICO PERRI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, COGHLAN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 April 2016 |
| DATE OF JUDGMENT: | 5 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 89 |
| JUDGMENT APPEALED FROM: | DPP v Perri (Unreported, County Court of Victoria, Judge Tinney, 26 June 2015) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Joint criminal enterprise –Sentence of six years and nine months imprisonment with a non-parole period of four years and six months – Parity – Whether disparity of sentence – Whether trial judge had improper regard to s 6AAA declaration of co-accused – Complaint regarding s 6AAA declaration not made out – Disparity of sentence made out – Seriousness of offending among co-accused equal – Sentence imposed on appellant too severe – Appeal allowed – Appellant resentenced to five years and six months imprisonment with a non-parole period of three years – Crimes Act 1958, s 77(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC with Mr T R Alexander | Paul Vale Criminal Law |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Substantially for the reasons advanced by Coghlan JA — whose judgment I have had the advantage of reading in draft — I agree that the appeal should be allowed, and the appellant be resentenced in the manner that his Honour proposes.
COGHLAN JA:
Overview
On 2 December 2015 Osborn JA granted Domenico Perri leave to appeal against the sentence imposed on him on 26 June 2015.
On 29 May 2015, after a trial lasting five days, the appellant had been convicted of one count of aggravated burglary. He was sentenced as follows:
Charges on Indictment
D12876662Offence Maximum Sentence Cumulation 1. Aggravated Burglary
[s 77(1) of the Crimes Act 1958]25 years 6 years and 9 months imprisonment --- Total Effective Sentence: 6 years and 9 months imprisonment Non-Parole Period: 4 years and 6 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 28 days Other relevant orders:
- Forensic Sample Order made pursuant to s 464ZF Crimes Act 1958
The circumstances of the offending are usefully set out in the Registrar’s neutral Summary as follows:
On 13 August 2013, following a lengthy period of planning, the appellant together with two co-offenders, Stuart Martin and Andrew Phillips, committed the offending. Phillips was the godfather of and cousin to Martin.
The victims, Silvio and Cheryl Toffolon, a married couple, were market gardeners who commonly dealt with cash. The appellant had known the male
victim, Silvio, who was 67 years of age, for most of his life. The appellant thought and told his two co-offenders that there were hundreds of thousands of dollars which the victims kept in their possession at their property located in Werribee. However, this belief was mistaken and the victims did not hold large sums of money at their property. Phillips also knew Silvio and believed that he kept large sums of money at his property. The objective of the group was to enter the premises, take the money and split it three ways in the hope that each of their discussed financial woes would be cured.
The appellant and Phillips had known each other for many years. There were a number of discussions between the three co-offenders over a period of months, and ultimately a scheme was settled upon between the three of them to have Martin attend at the victims’ property pretending to be a courier delivering a parcel, knock on the door and then enter with a gun once the door was opened. This plan was devised because it was concluded that the money the victims were believed to have was likely to be in a safe and therefore it would be necessary to enter the premises when the victims were there, so as to be able to gain access to the safe. None of the offenders were safebreakers.
The sentencing judge stated that he was satisfied that the appellant provided the firearm that was ultimately used in the offending. That firearm was a .22 calibre pistol with a silencer. He was also satisfied that during their discussions leading up to and on the day of the offending, it was the understanding of all three offenders that the weapon would be carried in the course of the planned aggravated burglary. However, the sentencing judge was not satisfied that the firearm was purchased or sourced by the appellant specifically to be used in the aggravated burglary.
Martin was selected as the person to go to the door, as he was unknown to the male victim. There had been discussions between the various members of the group as to the gathering of equipment to be used in the burglary in the lead up to the commission of the offence. The bulk of the equipment used was to be sourced by Phillips and Martin. There were clothes, a wig, walkie talkies, sunglasses and a box to secrete the gun. Number plates were stolen from a van in late July 2013 to be attached to a rental van to be used in the burglary. The appellant was not physically involved in the theft of that vehicle. However, the appellant and his co-offenders had discussed the need for the van.
The appellant went to Oakleigh with Phillips to obtain the rental van to be used in the burglary and the pair then concealed the van at a location in Point Cook to be used on the day of the burglary. The appellant was to also have a later role in driving Martin back to his vehicle after the burglary had been carried out.
As planned, Martin drove to the premises in the late afternoon on 13 August 2013 in the rental van disguised as a parcel delivery man. Phillips hid in the back of the van. Martin knocked on the door of the premises, which was opened by Cheryl. However, a locked fly screen still separated the pair. Martin told her that he had a parcel for Silvio. Cheryl walked back into the house and notified Silvio, telling him at the same time that she had not unlocked the flyscreen door because she did not like the look of the delivery man. Silvio came to the door and unlocked it. He asked Martin what was inside the parcel. Martin did not respond. Silvio joked ‘It could be a bomb!’ Martin then reached into the box, produced the firearm and pointed it at Silvio's face. Cheryl saw this and fled the premises and called 000.
After directing Silvio inside, Martin repeatedly demanded to know where his wife had gone. Silvio stated that he did not know. Silvio stated that he was going to faint and then pretended to faint. Martin panicked and ran out the front entrance. As Martin was leaving, Silvio got up, retrieved a shotgun and fired a shot at Martin’s vehicle as it left. Cheryl heard this gunshot and thought her husband had been shot.
Martin was later intercepted by police on the same day in Werribee driving the rental van. On 19 September 2013, Martin made a full confessional statement to police and identified and offered to give evidence against the appellant and Phillips. The appellant and Phillips were arrested on 25 September 2013. On 4 September 2014, Phillips made a full confessional statement and offered to assist police with their inquiries.[1]
[1]Registrar’s Neutral Summary [4]–[12].
Grounds of Appeal
Leave to appeal was refused on the ground that the sentence was manifestly excessive.
Leave to appeal was granted on the following grounds:
1.There was unjustified disparity in sentence between the appellant and his co-offenders; and
2.The learned sentencing judge erred in the exercise of his discretion in that he had regard to the s 6AAA declaration made in respect of the appellant’s co-offender, Andrew Phillips, on 8 October 2014.
Sentence of co-offenders
Martin pleaded guilty to one charge of theft, aggravated burglary and unlawful assault before his Honour Judge Lacava. He also provided a sworn undertaking to give evidence against the appellant and Phillips. He was sentenced on 14 March 2014 to a three year Community Correction Order.
Phillips pleaded guilty to one charge of theft and one charge of aggravated burglary before her Honour Judge Cannon. He also provided a sworn undertaking to give evidence against the appellant. He was sentenced on 8 October 2014 to 2 years 6 months imprisonment with a non-parole period of 16 months. Her Honour stated that had it not been for Phillips’ plea of guilty, she would have sentenced him to 6 years 6 months’ imprisonment with a non-parole period of 4 years 6 months.
Ground Three — s 6AAA Declaration
The learned sentencing judge was mindful of the importance of the principles of parity as they related to the sentence to be imposed on the appellant. His Honour went into some detail in examining the features of the offending as they related to the appellant and the co-accused Martin and Phillips. In general he concluded that for the purposes of sentence there was not much basis to distinguish between the three co-accused when it came to the conduct of each of them. He concluded that although they each played different roles in the offending this was a genuine joint enterprise.
There were, however, other matters from which the accused might be distinguished for the purposes of sentence. Martin was 21 years old at the time of sentence. He co-operated with the authorities from the time of his arrest. He pleaded guilty at an early stage and gave a undertaking to give evidence against the other accused. Phillips who was 45 years of age pleaded guilty at the committal and gave an undertaking to give evidence against the appellant.
In dealing with those factors his Honour said:
Well there are differences in the acts of the three players here. That is clear. But that is ultimately of little importance, given the nature of the crime and the joint nature of it. You are each liable for the conduct of the other. You have committed the crime as a team and importantly, there was nothing that occurred on the day at the victim’s house that was unexpected or beyond the plan. No member of the team went off on some frolic of their own. The plan that had been settled between the three of you was simply put into execution. However, there are very many differences in the matters in mitigation which could be relied upon by your two co-accused. The obvious feature is the fact of an early or earliest guilty plea and the fact of admissions being made to the police, formal statements being made and sworn undertakings to give evidence. That is before even considering the youth of Martin and the fact that his undertaking was given against two co-accused, you and Phillips.
So both of those gentlemen, both of your co-accused made written statements to the police. Both undertook on oath to give evidence. Both pleaded guilty. Both were judged to be remorseful, genuinely so. Phillips had some Verdins type considerations and increased burden factors, including being in protection. I need descend no further, as it is accepted that as a matter of law, there must be a very different outcome in your case. I note that Phillips, despite all those matters in mitigation that I have referred to, received two and a half years’ imprisonment, with a non-parole period of 16 months. It is obvious that the guilty plea and the undertaking to give evidence resulted in powerful sentencing discounts, as they had to, as a matter of law. The s 6AAA declaration in Judge Cannon’s sentences, that is, the sentence which would have been imposed upon him following a trial, was said to be six and a half years, with a non-parole period of four and a half years.
I pay regard to the principle of parity of sentence and have read those two sentences. It is obvious that the sentence imposed upon you and the non-parole period must be far more sizeable than in Phillip’s case. Your counsel accepts that there must be disparate sentences here to reflect the many disparities.[2]
[2]DPP v Perri (Unreported, County Court of Victoria, Judge Tinney, 26 June 2015) [35]–[37].
It was that reference to the s 6AAA discount and the closeness in the sentence imposed on the appellant which led to the grant of leave on this ground. The sentence imposed is not identical to that in the s 6AAA declaration. It was argued on the appeal that the difference could be accounted for because her Honour Judge Cannon had given Phillips some moderation in sentence because of Verdins[3] consideration, ‘albeit to a minimal extent’.[4]
[3]R v Verdins (2007) 16 VR 269.
[4]DPP v Phillips [2014] VCC 1691 [52] and see Waugh v The Queen [2013] VSCA 36 [23] and [38].
On the plea, counsel for the appellant (different counsel to the counsel who appeared on the appeal) entered into the following exchange with the learned sentencing judge:
COUNSEL: In that perspective, it’s Mr Phillips who is in the prime of his life and doesn’t perhaps have the considerations available to him that either Martin or this accused have. But the majority of those factors that Your Honour has referred to in mitigation are certainly not available nor contended here.
HIS HONOUR: Yes.
COUNSEL: There was a declaration in the case of Mr Phillips. It’s a notional sentence of course but that may be of some assistance to Your Honour.
HIS HONOUR: For six and a half years with a four and a half year non-parole period but that was tailored to Phillips’ circumstances though, was it?
COUNSEL: That was the declaration absent the - - -
HIS HONOUR: Absent the plea.
COUNSEL: The plea and the undertakings.
HIS HONOUR: But still present his personal factors.
COUNSEL: Yes.
HIS HONOUR: Including some Verdins considerations. Yes. In terms of the generational sweep that you’ve described, your client is really in the same generation as the victim and is providing the identification of that person, a person in the same occupation as the target.[5]
[5]Plea Transcript, DPP v Perri (Unreported, County Court of Victoria, Judge Tinney, 25 June 2015) 42-43.
That exchange was unfortunate. The s 6AAA declaration is not a relevant consideration for the fixing of a sentence relating to a co-accused.
If his Honour did fix the sentence by reference to the s 6AAA declaration that would have been an error of principle. It would be sufficient to vitiate the sentence.
I am not satisfied that his Honour did fall into such an error. The manner in which the topic was introduced by counsel for the appellant below was unfortunate. It did potentially give the impression that his Honour could use the s 6AAA declaration even though it was a ‘notional sentence’. It is no sentence at all.
When the learned sentencing judge was dealing with the question of parity he could not avoid mention of the s 6AAA declaration. It does show that the judge who sentenced the co-accused had intended to provide a significant discount in sentence but it does not have any arithmetic validity for the purpose of considering parity of sentence.
As I have already said, I do not accept that his Honour did fall into the error of having ‘regard to the s 6AAA declaration made in respect of the appellant’s co-accused Andrew Phillips, on 8 October 2015’, at least in a way that led him to impose the sentence he did impose. I would dismiss this ground of appeal.
Ground 2 — Parity
As I have already pointed out the learned sentencing judge was well aware of the issues of parity in this case. The finding that this was a genuine joint enterprise venture was not challenged on the appeal and it is reasonable to treat the seriousness of the offending as being equal among the three accused.
The distinctions between the three men are those set out above. They are Martin’s youth and pleas of guilty and undertakings to give evidence by both Martin and Phillips. The difference between the sentences imposed on Martin and the appellant are stark. The sentence of Martin is a very lenient one but the imposition of a non-custodial sentence was supported by the prosecutor as being within the sentencing range and not manifestly inadequate.[6]
[6]DPP v Martin (Unreported, County Court of Victoria, Judge Lacava, 14 March 2014) [14].
When Phillips came to be sentenced the learned sentencing judge was obliged to have regard to what had already happened to Martin. She said:
Parity is a relevant consideration in your case. Your co-offender, Mr Martin was sentenced by His Honour Judge Lacava on 14 March 2014 and receiving a three year community corrections order. He gave an undertaking to give evidence against you and Mr Perri, indicating his preparedness at an earlier stage than you. He also suffered from an adjustment disorder but this was taken into account in a general way as opposed to your situation, albeit that in some respects I have made limited allowance for your condition. Mr Martin also pleaded guilty at an early stage, and was remorseful. He had no prior convictions. As His Honour pointed out, the law requires that the courts ‘bend over backwards’ to facilitate a youthful offender’s rehabilitation, which was Mr Martin’s situation, not yours. His Honour also said that he had ‘gone out on a limb’ to keep Mr Martin out of gaol and that the case had troubled him because of the seriousness of the offending. He said that the main fact in granting a community corrections order was Mr Martin’s undertaking to give evidence against you and Mr Perri. His Honour also had regard to the fact that the Crown had conceded that a community corrections order would not be manifestly inadequate in Mr Martin’s case. No such concession is made in your case; however, I do not factor this in on the question of parity. I do not factor in the different roles that you played in respect of the aggravated burglary either, as Mr Martin was merely playing the part that you were all happy for him to play.[7]
[7]DPP v Phillips (Unreported, County Court of Victoria, Judge Cannon, 8 October 2014) [53].
It was in that context that Phillips was sentenced to a total effective sentence of 2 years 6 months’ imprisonment with a non-parole period of 16 months. That sentence was relatively lenient in all the circumstances. The sentence was of necessity affected by the sentence already imposed on Martin.
Although many of the sentencing considerations applicable to the appellant are personal to him, I am satisfied that on the issue of parity, the sentence imposed on him is too severe.
Differences in sentences between co-offenders are often explicable because of the different roles they may each have played, the differences in their background particularly relating to prior convictions, age and mental condition to list but a few. In this case the distinction is really borne out of the plea of guilty and co-operation offered and given by the co-accused.
Where there are special reasons for the reduction of sentence such as co-operation with the authorities, those matters are more difficult to deal with on the question of parity and how they are to be related to the sentences of a co-accused.
There is a wide discrepancy between the sentence imposed on Martin and that imposed on the appellant. The sentence imposed on Martin was very lenient for offending of this kind but the form of sentence was supported by the prosecution. Although the sentence imposed on Phillips was higher than that imposed on Martin it was affected by the sentence already imposed on Phillips. In my view there is an unreasonable differentiation between the sentence of the appellant and his co-accused. I would allow the appeal on this ground.
In resentencing the appellant it is clear that he does not have the same features leading to reduction of sentence as his co-accused. His absence of remorse is significant.
This was a serious example of a serious offence which carries a maximum of 25 years’ imprisonment. The appellant has a good background and good prospects of rehabilitation and his Honour found that for a number of reasons he will have difficulty in prison which will make his sentence more burdensome than for others. Principles of both general and specific deterrence have to be considered together with just punishment.
I would sentence the appellant to be imprisoned for 5 years and 6 months with a non-parole period of 3 years.
KYROU JA:
I agree with Coghlan JA.
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