R v Clarke
[2006] VSCA 174
•30 August 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 269 of 2005
No. 291 of 2005
| THE QUEEN |
| v. |
| DAVID JAMES CLARKE |
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JUDGES: | NETTLE, J.A., COLDREY and BELL, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 August 2006 | |
DATE OF JUDGMENT: | 30 August 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 174 | 2nd Revision: 3 October 2006 |
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CRIMINAL LAW – Sentencing – Kidnapping – Threat to kill – Intentionally cause serious injury – Armed robbery – Robbery – Multiple presentments – Whether total effective sentence of 13½ years with non-parole period of 8½ years manifestly excessive – Youth – Good prospects for rehabilitation – Genuine remorse – Applicant re-sentenced with cumulation in a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Ms Angela Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Doogue & O’Brien |
NETTLE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Bell, A.J.A.
I agree with his Honour, substantially for the reasons which he has given, that the application should be allowed and I concur in the disposition of the appeal which his Honour proposes.
COLDREY, A.J.A.:
I also agree with the disposition of this matter proposed by Bell, A.J.A. substantially for the reasons advanced by him.
BELL, A.J.A.:
The sentences under appeal
The appellant was sentenced to terms of imprisonment by judges of the County Court of Victoria on 2 September 2005 and 23 September 2005.
On 2 September 2005 the appellant was sentenced for the charges specified in presentment numbers C0303403.1 and S02357467.
The charges specified in presentment number C0303403.1 were:
·Kidnapping – one count (Count 1)
·Threat to kill – two counts (Counts 2 and 8)
·Intentionally cause serious injury – one count (Count 3)
·Intentionally cause injury – two counts (Counts 4 and 5)
·Armed robbery – one count (Count 6)
·Robbery – one count (Count 7)
The charges specified in presentment number S02357467 were:
·Armed robbery – two counts (Counts 1 and 2)
The appellant pleaded guilty to these charges.
The judge recorded convictions on each of the charges and then sentenced the appellant.
As to presentment number C0303403.1, her Honour’s sentences were as follows:
·Count 1 for kidnapping, 18 months’ imprisonment, treated as the head sentence.
·Count 2 for threatening to kill, six months’ imprisonment, of which three months was to be concurrent.
·Count 3 for intentionally cause serious injury, 18 months’ imprisonment, of which 12 months was to be concurrent.
·Count 4 for intentionally cause injury, 12 months’ imprisonment, of which six months was to be concurrent.
·Count 5 for intentionally cause injury, 12 months’ imprisonment, of which six months was to be concurrent.
·Count 6 for armed robbery, 24 months’ imprisonment, of which 15 months was to be concurrent.
·Count 7 for robbery, nine months’ imprisonment, of which six months was to be concurrent.
·Count 8 for threatening to kill, 12 months’ imprisonment, of which three months was to be concurrent.
The resulting effective sentence was imprisonment for five years.
As to presentment number S02357467, her Honour’s sentences were as follows:
·Count 1 for armed robbery, 24 months’ imprisonment, of which 12 months was to be concurrent.
·Count 2 for armed robbery, 24 months’ imprisonment, of which 12 months was to be concurrent.
The resulting effective sentence was imprisonment for two years.
Her Honour ordered the effective sentence of imprisonment for two years imposed under presentment number S02357467 to be served cumulatively upon the effective sentence of imprisonment for five years imposed on presentment number C0303403.1, which resulted in a total effective sentence of imprisonment for seven years. Her Honour directed that the appellant serve a minimum term of five years and six months before being eligible for parole.
On 23 September 2005 the appellant was sentenced for the charges specified in presentment number S02356645.
The charges specified in that presentment were:
·Armed robbery – four counts (Counts 1, 3, 5 and 14)
·Attempted armed robbery – one count (Count 6)
·Intentionally cause injury – six counts (Count 7, 9, 10, 11, 12 and 13)
·Make threat to kill – one count (Count 8)
The appellant pleaded guilty to these charges.
The judge recorded convictions on each of them and sentenced the appellant as follows:
·On Count 1 for armed robbery, 24 months’ imprisonment.
·On Count 3 for armed robbery, 24 months’ imprisonment.
·On Count 5 for armed robbery, 24 months’ imprisonment.
·On Count 6 for attempted armed robbery, 12 months’ imprisonment.
·On Count 7 for intentionally causing injury, 12 months’ imprisonment
·On Count 8 for threatening to kill, 12 months’ imprisonment.
·On Count 9 for intentionally causing injury, 12 months’ imprisonment.
·On Count 10 for intentionally causing injury, 18 months’ imprisonment.
·On Count 11 for intentionally causing injury, 18 months’ imprisonment.
·On Count 12 for intentionally causing injury, 18 months’ imprisonment
·On Count 13 for intentionally causing injury, 18 months’ imprisonment.
·On Count 14 for armed robbery, 24 months’ imprisonment.
His Honour directed that six months of the sentences imposed on Counts 7, 8, 9, 10, 11, 12 and 13 be served cumulatively upon the sentence imposed on Count 1 and upon each other, and that 12 months of the sentence imposed on Count 14 be served cumulatively upon the sentence imposed on Count 1.
The resulting effective sentence was imprisonment for six and a half years. His Honour directed that this sentence was to be served cumulatively upon the sentence imposed on 2 September 2005.
His Honour directed pursuant to s. 14 of the Sentencing Act that a new minimum period of eight and a half years be fixed as the term of imprisonment that the appellant had to serve before being eligible for parole.
In summary, the first judge imposed a total effective sentence of imprisonment for seven years, specifying five and a half years before the appellant was eligible for parole. The second judge imposed a total effective sentence of imprisonment for six and a half years, which, taken with the sentence of the first judge, meant the appellant had a net total effective sentence of imprisonment of 13 years and six months. The second judge specified a new minimum term of imprisonment of eight and a half years at which time the appellant would be eligible for parole, an increase of three years. This meant that the appellant would be on parole for five years if released on parole at the earliest possible time.
The appellant appeals with leave against the sentences imposed under all three presentments.
Appeal against sentence imposed on 2 September 2005
As to the sentences imposed on 2 September 2005 (presentment numbers C0303403.1 and no S02357467), the grounds of appeal are:
·Ground 1: The judge erred in treating Counts 1 and 2 on presentment number S02357467 as a “relevant offence” for the purposes of ss. 6B, 6C, 6D and 6E of the Sentencing Act 1991.
·Ground 2: The total effective sentence and non-parole period are manifestly excessive.
In sentencing the appellant for the offences specified in these two presentments, her Honour said this:
“[The] convictions on count 8 of presentment number C0303403.1 and on counts one and two on presentment number S02357467 for those offences require me to pay regard to the provisions of Part 2A of the Sentencing Act relating to the sentencing of serious violent offenders. I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed and am empowered, if necessary, in order to achieve that purpose to impose a sentence greater than is proportionate.”
Her Honour also said this:
“… I have sentenced you in respect of count 8 on presentment no. C0303403.1 and in respect of counts 1 and 2 on presentment no. S02357467 as a serious violent offender.”
It is common ground in the appeal that Count 2 (threatening to kill) is a serious violent offence as defined in the provisions of Part 2A of the Sentencing Act. Being convicted of this offence means that the appellant is, under that Part, qualified to be treated as a serious violent offender in respect of Count 3 (intentionally causing serious injury) and Count 8 (also threatening to kill). It was also common ground that the judge erred in treating Counts 1 and 2 (both armed robbery) on presentment number S02357467 as serious violent offences.
It was also common ground that, in consequence of the error made by the judge in treating Counts 1 and 2 on presentment number S02357467 as serious violent offences, the judge committed a specific error when she sentenced the appellant for those offences. In consequence, the sentences imposed by the judge for those offences, and the orders made with respect to cumulation, were vitiated. By reason of the sentencing relationship between the charges specified in the two presentments, it followed that the error made with respect to Counts 1 and 2 under presentment number S02357467 also vitiated the sentences imposed, and the orders for cumulation made, by the judge for the charges specified in presentment number C0303403.1.
It is therefore unnecessary to consider whether or not the sentences imposed by the judge were manifestly excessive.
By reason of the specific error made, the appeal should be allowed with respect to the sentences imposed for the charges specified in presentment numbers C0303403.1 and S02357467. The sentencing discretion will be re-exercised in relation to those charges.
Appeal against sentence imposed on 23 September 2005
As to the sentences imposed on 23 September 2005 (presentment number S02356645), the grounds of the appeal are:
·Ground 1: The judge erred in admitting a previous court appearance listed on the further presentment when the appellant had not been convicted of those offences.
·Ground 2: The judge erred in failing properly to apply the principles in relation to totality of sentence.
·Ground 3: The total effective sentence and non-parole period were manifestly excessive.
When sentencing the appellant, the judge said this in relation to his prior court appearances and convictions:
“In February of 2003 you were before the Magistrates’ Court at Melbourne where you were charged with causing serious injury intentionally, causing serious injury recklessly, unlawful assault, and assault in company. The prior convictions are extensive and numerous and I do not propose to repeat them all.”
The reference to the appellant being charged in February 2003 was a reiteration of information given to the judge on the further presentment, which read:
“[The appellant] previously appeared at the Magistrates’ Court at Melbourne on the 3rd day of February, 2003 on charges of
Causing serious injury intentionally
Causing serious injury recklessly (2 charges)
Causing serious injury intentionally
Causing serious injury recklessly
Unlawful assault
Assault in company
Assault by kicking
Affrayand was released on an unconditional discharge on all charges.”
In fact the information given to the judge was incorrect. The appellant had not been convicted of the charges specified. At a committal, a magistrate decided he would not be committed to stand trial on the charges and discharged him.
It was common ground that, in reliance on this information, the judge would have treated the appellant as having been released on an unconditional discharge on all of the specified charges pursuant to s.73 of the Sentencing Act upon the basis that he had been convicted of those charges.
It was also common ground that, in the circumstances just described, the judge was caused to err by taking into account the fact that the appellant had been convicted of various offences on 3 February 2003 when in fact he had not been so convicted. Of course the judge made this error inadvertently. He acted upon the basis of incorrect information.
In consequence of that error, the sentences imposed by the judge for the charges specified in presentment number S02356645, and the orders for cumulation made, were vitiated. It is therefore unnecessary to consider whether the judge erred in failing properly to apply the principles in relation to totality and whether the sentence was manifestly excessive.
By reason of the specific error made, the appeal should also be allowed with respect to the sentences imposed for the charges specified in presentment number and S02356645. The sentencing discretion will be re-exercised in relation to those charges.
Re-sentencing the appellant
In the circumstances it is necessary to re-sentence the appellant in relation the charges specified in each of the three presentments. It should be noted that neither of the two judges from whose sentences the appeals have been brought were able to sentence the appellant on this global basis.
The circumstances of the offending were fully described by the judges. No exception was taken with the descriptions in the appeals.
As to the charges specified in presentment number C0303403.1, the circumstances of the offending were described as follows:
“2.These crimes comprised in presentment no. C0303403.1 took place in the early hours of Sunday 14 April 2002 at Shepparton. One of the victims, Brent Rees, had driven a car, of which it had been agreed he would be the designated driver, and had driven to the car park of the Sherborne Hotel to collect his friends who were inside. After the friends came out you and the co-accused approached the car and asked for a lift to your house. One of the friends told Rees that he knew you and that it would be all right. You then with the co-accused, Dion Morgan, and together with two females, got into the car and you directed Rees where to drive. The two females then alighted and you told Rees to drive towards a particular street, in the course of which the car passed near the Sherborne Hotel. As Rees was somewhat fearful of being alone in the car with you and Morgan he suggested that he should pick up his friends. The other two victims then got into the back of the car with you in the front passenger seat and Morgan in the back seat behind you. You then told Rees to drive to a dark and remote area near the Deakin Reserve football ground. Rees became concerned at this point and attempted to do a U-turn, but you then placed a screwdriver against his throat and threatened to kill him.
3.The facts to this point comprise counts 1 and 2, being kidnapping and threat to kill. You also then threatened to stab the other two victims and punched and hit them with the screwdriver. You and Morgan continually shouted abuse at the three victims and proceeded to repeatedly punch and threaten them. At some stage Morgan got hold of the screwdriver and stabbed Rees four times in his back. You then got out of the front seat and proceeded to punch the two victims in the back seat while Morgan threatened to stab Rees in the eye and he then dragged that weapon across Rees’s face. You, meanwhile, kicked Rees in the head with the sole of your foot. You and Morgan then demanded the victims hand over their wallets and personal property. As Rees was complying you continued to threaten him with the screwdriver. Cole handed over his mobile phone, his keys and his wallet in response to being punched. You and Morgan continued to use abusive language all the time these offences of armed robbery and robbery were taking place as set out in count 6 and 7.
4.At about this point you got into the driver’s seat and proceeded to drive to an area near a farm. You and Morgan then dragged the three victims from the car and forced them to lie on their stomachs at the side of the road in a drain. You and Morgan continued to further assault them by jumping on them and kicking them all the while using abusive language and threatening to get a gun and shoot them. Fortunately the victims managed to crawl through the drain to a fence just as a motorbike could be heard in a paddock in front of them and you and Morgan then drove off in the car.
5.When arrested on 17 April you told the police the location of the car, but you denied assaulting, kidnapping or robbing the three victims.
6.In the hours prior to this criminal activity you had consumed a substantial amount of bourbon, had smoked cannabis and had taken two ecstasy tablets. Notwithstanding the effects of the ingestion of this cocktail of drugs, your actions were deliberately threatening and frightening to these three young men who had in no way provoked you or Morgan.”
As to the charges specified in presentment number S02357467, the circumstances of the offending were described as follows:
“7.On 16 February 2005 you pleaded guilty before me on presentment no. S02357467 to two counts of armed robbery for which the maximum penalty is 25 years’ imprisonment. These crimes took place at about 1 a.m. on 22 January 2004 in Hoppers Crossing. The first victim, Andrew McLindon, was walking along the footpath on Heaths Road slightly behind the second victim, Amrish Singh. At the time the victims were unknown to each other. You ran past McLindon and confronted Singh with a 10 centimetre knife which you held at him and demanded that he produce his wallet. This he did and you removed $25 from it. As this was taking place your co-accused, Binyam Alemu, approached McLindon from his rear and demanded cigarettes and money whilst holding an iron bar in his hand. McLindon resisted this request and began to fear for his safety as Alemu continued to walk beside him. As McLindon and Alemu caught up with you and Singh, you produced the knife and held it against McLindon’s neck demanding that he empty his pockets. McLindon complied and handed over his mobile phone, together with his wallet which contained credit cards and $20 in cash. You and Alemu then walked off. An hour or so later you were arrested during an attempted theft of wheels from a car in a driveway in Roberts Avenue, Hoppers Crossing.”
As to the charges specified in presentment number S02356645, the circumstances of the offending were described as follows:
“3.Your offending revolves around three separate incidents that occurred in the early hours of Sunday 29 August 2004. At about 4 a.m. on that day you approached a greed Ford sedan motor vehicle parked in the Goulburn Valley Hotel car park in Shepparton. You were in company of two unknown male co-offenders.
4.The victims in the case, William Breheny and Naomi Wright, were sitting in the rear seat of this motor vehicle. You stood outside the vehicle and asked for a cigarette which was provided to you. You then reached into the vehicle and removed a set of keys that were hanging around the female complainant’s neck.
5.You got into the front passenger seat, removed the interior light of the motor vehicle and slapped and punched the people in the vehicle. You said that you had a knife and were prepared to use it, and you displayed the handle of your knife that was protruding from the waist of your trousers. You demanded that the victims provide you with their money, phones and wallets, saying that you, ‘Give us your stuff or I’ll stab you, I’ve stabbed people before. You don’t want to mess with me, I’ll fuckin’ slit your throat.’
6.You were provided by Mackerel with 20 to $35; $20 in cash from Damazzi and some other personal cards in a wallet. Ms Naomi Wright handed over to you $80 in cash and cigarettes and her mobile phone. You also stole some CD jackets and a video camera bag from the vehicle. In all the property that you obtained was valued at about $1,250. You made, as I indicated, a threat to kill to Mr Breheny. You punched him in the chin, to the head and to the temple, and told him that you would kill him. You then decamped.
7.Subsequently you approached one Louis White who was near a Ford sedan in the vicinity. You told him to, ‘Piss off’, and you punched him to the mouth. That forms the basis of Count 9.
8.Subsequently, again, at 5.30 a.m. on that morning you were driving around in company of others in a small red motor hatch motor vehicle. You observed Mr Bourke, Daniel Bourke, Mr Mitchel Turner and Mr Nathan Trimby and Mr Liam Bourke, in the vicinity of Nixon Street, Shepparton, and you and your co-offender got out of your vehicle and armed yourself with iron bars.
9.You approached the four male youths who I have already named, and all of whom apparently were in the various states of intoxication from having had a big night on the town. They moved away from you as you were swinging the iron bar in their direction. Daniel Bourke was hit by the iron bar on the top of the head and had a cut on his head. Mitchel Turner was hit on the right side of the head, just above the ear and suffered swelling and bruising. Nathan Trimby was hit on the top of the head and again suffered swelling and bruising in that area. Liam Bourke was hit to the right side of the throat, causing a long mark or injury to his throat.
10.You demanded wallets and money from the complainants and Mr Turner handed over a black Rip Curl wallet containing credit cards and personal papers and they managed then to run away from you, all four of them. You drove off in the small red motor vehicle.”
As to the charges specified in presentment numbers C0303403.1 and S02357467, the victims were offered the opportunity to provide victim impact statements but chose not to do so. Nonetheless it is clear that the appellant’s criminal conduct caused each of them real fear of being harmed. As to the charges specified in presentment number S02356645, victim impact statements were provided by four of the persons who suffered as a result of the appellant’s crimes. The statements speak eloquently of the fear and distrust that the appellant’s criminal conduct has engendered in them.
Both judges condemned the appellant’s criminal behaviour in strong and appropriate terms.
As to the charges specified in presentment numbers C0303403.1 and S02357467, the judge said this:
“It is sufficient for present purposes to simply say that the facts in these matters are very disturbing indeed. Your behaviour was totally reprehensible. The aggravating aspects include the use of the screwdriver during the commission of the 2002 offences and the knife which you wielded at each victim during the course of committing the 2004 offences. Despite the ingestion of drugs and alcohol you had ingested on each of these occasions, you must have had some understanding of the probable consequences of your actions. Each of the victims were in fear of being harmed by your actions in the use of the screwdriver in 2002 and of the knife in 2004.”
As to the charges specified in presentment number S02356645, the judge said this:
“Suffice to say that your conduct was outrageous and frightening. Victim impact statements have been filed by Ms Wright, Mr Beheny, Mr Mackerel and Mr Trimby, all of which refer to the fear that each of them suffered as a result of your crimes.”
These condemnations of the appellant’s criminal conduct must be firmly endorsed.
When the appellant was arrested for the charges specified in presentment number C0303403.1, he was placed on bail. While on that bail, he committed the offences specified in presentment number S02357467. When arrested for those offences, he was again placed on bail. The appellant committed the offences specified in presentment number S02356645 while on bail for the offences specified in the previous two presentments.
In consequence, each term of imprisonment imposed in relation to the charges specified in presentment numbers S02357467 and S02356645 must be served cumulatively with any other sentences of imprisonment, unless the Court otherwise directs: s. 16(3C) of the Sentencing Act.
The appellant has an extensive criminal history which began in 1997 in the Children’s Court when he was 15 years of age. Since then he has been dealt with on many occasions for crimes of theft, violence, cannabis use, resisting arrest and numerous other matters. His offending has almost without exception been drug and alcohol related.
The appellant has been sentenced to 11 terms of detention or imprisonment. Between the ages of 17 and 19 (between 1999 and 2001), he was sentenced to four terms of detention in a youth training centre. Between the ages of 20 and 21 (in 2002 and 2003), he was sentenced to five terms of imprisonment in an adult prison. He was then sentenced in 2005 to the two terms of imprisonment in an adult prison in respect of which he brings the present appeals.
The appellant’s personal circumstances were set out in reports provided by Dr Senadipathy and Mr Healey and were described by the judges in their sentences.
The appellant is not a young offender but is still a relatively young person. He was born on 28 February 1982 and is currently aged 24. He was aged 20 and 21 when he committed the relevant offences.
The appellant’s background is one of extreme social disadvantage. He grew up in a poor aboriginal family in the Shepparton area. His father is a reformed alcoholic who, in earlier years, used to beat the appellant unconscious. He had to live with various relatives in consequence. His relationship with his mother is good and with his father is improving.
The appellant starting abusing alcohol and drugs at an early age. By his late teenage years he was a chronic abuser of alcohol, amphetamines and cannabis. His education so far has been modest, but he displays obvious ability in the arts. He is not suffering from a mental illness and shows real potential to develop into a useful member of society if he can overcome his alcohol and drug abuse problems.
The appellant has taken full advantage of the opportunities that the prison authorities have offered him for his own rehabilitation. He has undertaken successfully a number of courses, including drug counselling, relapse prevention, indigenous alcohol and other drug education. He has attained certain practical competencies which will make him better suited for work, including a Certificate 2 in Transport and Distribution (Warehousing and Storage) from the Gordon Institute of Technical and Further Education. He is pursuing sociology studies at Deakin University.
The appellant has a child aged about six years by his de facto partner, an aboriginal woman who lives in Echuca. This woman, who is undergoing tertiary studies of her own, is totally opposed to the appellant’s alcohol and drug abuse.
The appellant is a descendent of the Yorta Yorta tribe and feels a strong connection with his ancestral country, the area around central and northern Victoria, and his aboriginal heritage. He has focused strongly, and positively, on his aboriginality in recent times. In various ways he is attempting to understand his own predicament in that light. For example he has undertaken Koori Drug Education Programs.
The appellant hopes to make a positive contribution to his community and has begun doing so whilst in prison. Ms Helen McMillan, the indigenous studies teacher at the Gordon Institute, has written in extremely positive terms about the progress he has made. Ms McMillan states the appellant has been a leader in the theatre group at the prison and has a huge amount to offer indigenous people in the broader community. He has taken a positive outlook towards his goals upon release and often talks about how he can help his community. Ms McMillan emphasises the hard work which the appellant is doing to rehabilitate himself and sees a bright future for him. He has not only written two songs for indigenous theatre projects but has taught these songs to prisoners who have a very low literacy level.
The nature of the offences committed by the appellant, and the absence of mitigating factors that might justify any other course, requires the imposition of terms of imprisonment for all of the charges in the three presentments. These were serious crimes of violence committed upon completely innocent members of the public who were terrorised by what occurred. As the judges of the County Court observed, there were aggravating circumstances, including the use of weapons and the commission of crimes whilst on bail. Considerations of deterrence, protection of the community and the gravity of the offending require the length of imprisonment to be much longer than the ones previously imposed on the appellant, the longest of which was 8 months.
However, the appellant is still, at 24, a relatively young person, and one in whom the prison and education authorities are making a significant investment to rehabilitate. He has pleaded guilty to a large number of charges, thus saving the victims and the witnesses the burden of a trial, or even several trials. He has displayed full remorse for the criminal conduct in which he engaged and set himself upon a course of personal and social rehabilitation. These are important sentencing factors in the circumstances.
The criminal conduct for which the appellant must be sentenced occurred on three separate occasions but during single evenings in each case. A number of victims were separately harmed, which is a factor of significance. On the other hand, several of the offences were identical or similar in nature and arose from a course of conduct on the evenings concerned that was, to a greater or lesser extent, continuing.
In circumstances such as these, it is necessary to ensure that the total sentence imposed, after the individual sentences have been cumulated, is just and appropriate and not excessive.[1] The sentence must not be so great as to crush the offender’s reasonable hopes of becoming a valuable member of the community on release.[2] Sometimes an appeal court hearing a number of appeals at once can see the crushing effects of a total sentence better than the individual judges who had to sentence the offender on separate occasions.[3]
[1]Johnson v. R. (2004) 205 A.L.R. 346 at 348; Mill v. R. (1988) 166 C.L.R. 59 at 63.
[2]DPP v. Grabovac [1998] 1 V.R. 664 at 683.
[3]R. v. Beck [2005] VSCA 11 at [22].
An important factor is that these principles must not be used to undermine the intended effect of the provisions that deal with the sentencing of persons charged with committing serious violent offences[4] or, equally, with committing offences while on bail. Even after giving these factors due weight, considerations of totality and rehabilitation require the appellant’s sentence to be moderated and cumulated towards an appropriate total effective sentence[5] and to contain an appropriate minimum term.
[4]R H McL v. R. (2000) 203 C.L.R. 452 at [76].
[5]R. v. McCorriston [2000] VSCA 200 at [13]; DPP v. Grabovac at 683-684
Conclusion
In the result, I would re-sentence the appellant as follows.
As to the charges specified in presentment number C0303403.1:
· On Count 1 for kidnapping, to imprisonment for 24 months and this will be the base sentence.
· On Count 2 for threatening to kill, to imprisonment for 12 months.
· On Count 3 for intentionally causing serious injury, to imprisonment for 18 months.
· On Count 4 for intentionally causing injury, to imprisonment for 12 months.
· On Count 5 for intentionally causing injury, to imprisonment for 12 months.
· On Count 6 for armed robbery, to imprisonment for 24 months.
· On Count 7 for robbery, to imprisonment for nine months.
· On Count 8 for threatening to kill, to imprisonment for 12 months.
I would order that six months of the sentence of imprisonment imposed under Count 3 and six months of the sentence of imprisonment imposed under Count 6 be served cumulatively upon the sentences imposed under Count 1 and each other. On the charges specified in presentment number C0303403.1, this is an effective sentence of imprisonment for three years.
As to the charges specified in presentment number S02357467, I would re-sentence the appellant as follows:
· On Count 1 for armed robbery, to imprisonment for 24 months.
· On Count 2 for armed robbery, to imprisonment for 24 months.
Accordingly, on the charges specified in presentment number S02357467, this is an effective sentence of imprisonment for two years.
As to the charges specified in presentment number S02356645, I would re-sentence the appellant as follows:
· On Count 1 for armed robbery, to imprisonment for 24 months, and this will be the base sentence.
· On Count 3 for armed robbery, to imprisonment for 24 months.
· On Count 5 for armed robbery, to imprisonment for 24 months.
· On Count 6 for attempted armed robbery, to imprisonment for 12 months.
· On Count 7 for intentionally causing injury, to imprisonment for 12 months, 3 months of which will be cumulative.
· On Count 8 for threatening to kill, to imprisonment for 12 months, 3 months of which will be cumulative.
· On Count 9 for intentionally causing injury, to imprisonment for 12 months, 6 months of which will be cumulative.
· On Count 10 for intentionally causing injury, to imprisonment for 18 months.
· On Count 11 for intentionally causing injury, to imprisonment for 18 months.
· On Count 12 for intentionally causing injury, to imprisonment for 18 months.
· On Count 13 for intentionally causing injury, to imprisonment for 18 months.
· On Count 14 for armed robbery, to imprisonment for 24 months.
I would order that three months of the sentences of imprisonment imposed on Counts 7, 8, 10, 11, 12 and 13, six months of the sentence of imprisonment imposed on Count 9, and 12 months of the sentence of imprisonment imposed on Count 14, be served cumulatively upon the sentences imposed in Count 1 and each other. Accordingly, on the charges specified in presentment number S02356645, this is an effective sentence of imprisonment for five years.
I would order that the effective sentence of two years imprisonment imposed in respect of the counts preferred in presentment number S02357467 and the effective sentence of five years imposed in respect of the counts preferred in presentment number S02356645 be served cumulatively upon the effective sentence of three years imposed in respect of the counts preferred in presentment number C030343.1 and upon each other thereby making for a total effective sentence imposed in respect of all counts preferred in those three presentments of 10 years imprisonment.
Finally, I would set a non-parole period of six years.
As prescribed by s. 18(4) of the Sentencing Act, the period to be reckoned as already served under the sentence just pronounced is 881 days which should be noted in the records of the Court.
As provided by s. 6F of the Sentencing Act, the records of the Court should also note the appellant has been sentenced as a serious violent offender with respect to Counts 3 and 8 in presentment number C0303403.1 and Count 8 in presentment number S02356645.
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