R v Czerniawsky

[2009] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 250 of 2007

THE QUEEN

v

DANIEL LEE CZERNIAWSKY

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JUDGES:	KELLAM and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2009
DATE OF JUDGMENT:	3 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 2

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Criminal Law – Sentence – Attempted armed robbery – Re-offending on parole – Sentencing judge took account of ‘possibility’ of Adult Parole Board cancelling appellant’s parole purportedly in compliance with R v Orphanides (2002) 130 A Crim R 403 – Judge unaware that Orphanides had been overruled by R v Piacentino; R v Ahmad (2007) 15 VR 501 – Sentencing error thereby established – Error operated in favour of appellant - Court of view that no different sentence should have been passed – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J Silbert SC and B L Sonnet	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Ms F L Dalziel	Victoria Legal Aid

KELLAM JA
WEINBERG JA:

1. The appellant, Daniel Lee Czerniawsky, now aged 26, pleaded guilty, in the County Court at Bendigo, to one count of attempted armed robbery.  On 24 August 2007, he was sentenced to four years’ imprisonment with a non-parole period of two years and six months.  The offence was committed only weeks after the appellant had been released on parole for offences of armed robbery, burglary and theft.

1. On 30 August 2007, the Adult Parole Board cancelled the appellant’s parole.  A further six months and two days’ imprisonment were added to his head sentence.  

1. The appellant contends that the sentencing judge was wrong to take into account the possibility that the Adult Parole Board might cancel his parole.  He also sought, in his grounds of appeal, to lead fresh evidence, in the form of affidavit material, as to the Adult Parole Board’s actions in order to demonstrate that a lesser sentence should now be passed.

1. The appellant committed the attempted armed robbery in the early hours of 8 January 2007.  Shortly after midnight, his victim, Eileen Evans, who was aged 54 at the time, had finished her shift as a kitchen hand at a Bendigo restaurant.

1. Ms Evans went to a hotel a short distance away in order to play gaming machines and to have a coffee.  At around 12.45 am, she left to walk home carrying her handbag with one strap over her shoulder.

1. Approaching Ms Evans from behind, the appellant grabbed her by the hair.  He held the pointed end of a knife to her throat and threatened to stab her if she did not surrender her handbag.

1. Ms Evans screamed for help.  The appellant kept the knife to her throat and tried to pull the handbag away from her.  However, Ms Evans would not let go of her bag and clung to it while she continued to yell loudly.

1. Frightened of being caught, the appellant loosened his grip on the handbag and ran away.  He discarded the knife in one of the neighbouring streets.  The knife, which was long with a serrated blade and blunt tip, was recovered by police and traces of the appellant’s DNA were found on it.

1. In his interview with the police, the appellant initially denied any involvement in the attempted armed robbery.  However, he admitted having committed the offence once he was told that his DNA had been detected on the knife.

1. Ms Evans was not injured physically, though she suffered emotional trauma. She said that following the attack, she had difficulty sleeping, suffered anxiety and lacked confidence.  She said that she continued to work seven days a week at the restaurant, as she had previously done, but now, instead of walking, took taxis home.  This cost her about $60 a week.

1. There were originally two grounds of appeal, but ground two was abandoned.  Ground one is in the following terms:

1. The learned trial Judge erred by taking account, in formulating the sentence, of the possibility of the cancellation of the Appellant’s parole as a consequence of the offending for which he was being sentenced.

1. At  paragraph 24 of her reasons for sentence, her Honour said the following:

There is no issue that a custodial sentence to be served immediately is appropriate. However, I must take into account the principle of totality as any term of imprisonment imposed must not be crushing on you.  As I stated, you committed this offence whilst on parole and accordingly there is the possibility that the Adult Parole Board will cancel your parole and require you to serve some or all of the outstanding six months. I take into account that possibility in accordance with the Court of Appeal decision in R v Orphanides (2002) 130 A Crim R 403.[1]

[1]Emphasis added.

1. The appellant contended that the sentencing judge erred in taking into account even the possibility that the appellant’s parole would be cancelled, in accordance with R v Orphanides.[2]  Accordingly, the sentencing discretion had miscarried.[3] 

   [2](2002) 130 A Crim R 403.

   [3]R v Piacentino; R v Ahmad (2007) 15 VR 501.

1. That submission must be accepted.  Regrettably, the sentencing judge was unaware of the fact that in March 2007, several months before she sentenced the appellant, a specially constituted court of five in R v Piacentino; R v Ahmad[4] had expressly overruled Orphanides. Eames JA, with whom the other members of the Court agreed, said at [68]-[71]:

In Orphanides Phillips JA explained that in taking into account what the possibilities are the approach was similar to the approach that a sentencing judge would take as to the operation of a non-parole period, ie the Court must assume the possibility that the whole sentence will be served. He added:

"The court does not thereby speculate about what will be done; it none the less sentences in the light of what the possibilities are. So here: the Court sentences knowing that if the parole board cancels the parole for breach it may also require the unexpired portion of the earlier sentence, or perhaps some portion of it, to be served in prison; and further that, if that occurs, the new sentence must be served additionally unless it otherwise orders by reason of exceptional circumstances". (my emphasis)

In R v Greenslade Batt JA drew the distinction in similar terms:

" ... his Honour was required to take into account the existence of the provision as a general sentencing consideration by recognising what the possibilities were but without speculating as to what the Parole Board might do."

With respect to their Honours, the distinction between recognising what the possibilities were if the Parole Board cancelled parole, and speculating as to what the Parole Board would do, is not one that can withstand the plain language of s 5(2AA).

In my opinion, the Director is correct in his contention that there could be no application of the "general sentencing consideration" without the sentencing judge offending s 5(2AA). The general sentencing consideration identified by Phillips JA in Orphanides should be held to no longer have application. In the result, where an offender falls to be sentenced for offences constituting breach of parole but is to be sentenced at a time when he has not had his parole revoked by the Parole Board then the sentencing judge may not have regard to the possibility that he might be later called upon by the Parole Board to serve some or all of the balance of his parole sentence.[5]

[4](2007) 15 VR 501.

[5]Citations omitted.

1. In R v Alashkar; R v Tayar,[6] the Court of Appeal said at [17]:

With the overruling of Orphanides by Piacentino, and for the reasons stated in Piacentino, the possibility of the Parole Board in the future cancelling parole and requiring the offender to serve an additional period of incarceration may not be taken into account in any manner. As Piacentino states, s 5(2AA) of the Sentencing Act does not permit a sentencing judge, in sentencing an offender, to have regard to any possible future decision of the Parole Board which may affect the length of time the offender will have to spend in custody. Where parole has not yet been cancelled, the making of an order pursuant to s 16(3B) for cumulation or concurrency of a new sentence on any period of imprisonment which may be required to be served on a future cancellation of a parole order would offend s 5(2AA) as the sentencing judge would be having regard to the possible effect of any executive action on the part of the Parole Board to cancel parole.

[6](2007) 17 VR 65.

1. The difficulties which confront sentencing judges who must comply with Piacentino, while at the same time discharging their judicial function pursuant to s 16(3B), have been noted. There is an obvious tension between s 5(2AA) as construed in Piacentino, and the duty of a judge to consider under s 16(3B) whether there are ‘exceptional circumstances’ which would warrant a departure from the requirement that a sentence imposed be served cumulatively on any period of imprisonment to be served on cancellation of parole.  It is a matter to which we think the legislature should give urgent attention.

1. In any event, the Crown has correctly conceded sentencing error, and the appellant falls to be re-sentenced. That task should be undertaken with due regard to the language used in s 568(4) of the Crimes Act 1958.  On an appeal against sentence, this Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at trial, and pass such other sentence in substitution therefor as it thinks ought to have been passed.  In any other case, the Court shall dismiss the appeal. 

1. The appellant has an extensive criminal history.  He has numerous convictions for dishonesty, criminal damage and arson.  As previously indicated, he committed this offence only weeks after being released on parole for offences which included armed robbery, burglary and theft. 

1. The appellant suffers from what might be regarded as a mild intellectual disability.  He has in the past abused drugs and alcohol.  A report from a psychologist stated that, at the time he committed the attempted armed robbery, he was suffering from an ‘adjustment disorder’.  He had found it difficult to adjust to the sense of freedom since leaving prison several weeks earlier.  He also was having ‘paranoid concerns’ and thought that everybody around him ‘knew what I’d done and that I’d been in gaol’.  He said that he ‘couldn’t stand it’.

1. The appellant was raised by a woman, whom he considers to be his ‘adoptive mother’.  His biological mother is intellectually disabled, and has given birth to nine children from four fathers.  She is unable to care for any of her children, all of whom have intellectual and psychological problems.

1. The appellant himself has a child with a severely intellectually disabled woman who is 20 years older than him.  Their child was in care at the time of sentencing.  He now has a second child with a different partner.

1. On any view, the error made by the sentencing judge in taking into account the possibility that the Adult Parole Board would require the appellant to undergo a further term of imprisonment by reason of his breach of parole operated in favour of the appellant. An error of that kind may trigger the operation of s 568(4), but only if this Court thinks that a different sentence should have been passed.

1. Despite Ms Dalziel’s most helpful submissions, we are not persuaded that this was a case in which a different sentence should have been passed.  The sentencing judge had careful regard to the appellant’s intellectual disability.  She said that she had moderated the sentence she would otherwise have imposed in accordance with the principles laid down in R v Verdins.[7]   There is no reason to think that she failed to do so.  Regrettably, the appellant’s prior record, and his overall history, do not inspire great confidence that he will not re-offend.

   [7](2007) 16 VR 269.

1. In our view, the sentence of four years imprisonment, with a non-parole period of two years and six months, was within the permissible range for an offence of this nature committed by an offender with these antecedents.  The additional period of six months and two days to which the appellant was subject after his parole was cancelled, leaving him with a total effective sentence of four years, six months and two days, cannot be regarded as a violation of the totality principle for this offending.  

1. The use of a knife in the course of an attempted robbery upon a woman walking alone at night is plainly a matter of great seriousness.  When one adds to that the appellant’s extensive criminal history, and the fact that the offence took place within weeks of his having been released on parole for offences of a similar nature, it can hardly be said that he has been dealt with in any unduly severe manner. 

1. The appeal should be dismissed.