R v Gunn
[2007] VSCA 214
•2 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 331 of 2006
| THE QUEEN |
| v |
| STEVEN JAMES GUNN |
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JUDGES: | BUCHANAN and NETTLE JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 October 2007 | |
DATE OF JUDGMENT: | 2 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 214 | |
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CRIMINAL LAW – Sentencing – Aggravated burglary – Causing injury intentionally – Handling stolen goods – Non-parole period – Error in setting single non-parole period despite completion of earlier non-parole period – Parity – Whether unwarranted disparity between sentences imposed on co-offenders – Appeal upheld – Appellant re-sentenced – Sentencing Act 1991, s 14.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr D A Dann | Ann Valos Criminal Law |
BUCHANAN JA:
I will ask Nettle JA to deliver the first judgment.
NETTLE JA:
This is an appeal by leave against a total effective sentence of four years' imprisonment, with a non-parole period of two-and-a-half years, which was imposed on the appellant on 18 October 2006, after pleading guilty to one count of aggravated burglary (count 1), one count of causing injury intentionally (count 2) and one count of handling stolen goods (count 3).
The offences the subject of counts 1 and 2 were committed on 4 April 2005. At approximately 11.30 am on that day, the appellant unlawfully entered a residential property in Burwood, wearing black wetsuit material gloves and armed with a large yellow screwdriver. One of the residents, a 22-year-old student, was present in the house.
A struggle ensued, and at one stage the appellant grabbed the victim and pushed the screwdriver against him, then he hit the victim a number of times to the side of his head and in his mouth. The appellant accused the victim of selling drugs to the appellant's niece, who was then 15 years old. The victim, however, vehemently denied the allegation and told the appellant that he must have the wrong address. He managed to take the screwdriver from the appellant and kept it from him, until the appellant calmed down and ultimately apologised. Then he returned the screwdriver to the appellant and the appellant left the premises and got into his car. The victim watched as the appellant drove away and took a note of the number plate. As a result of being punched to his head and in the mouth, the victim suffered a split lip and pain to his jaw and teeth and a headache (count 2).
Count 3 was unrelated to counts 1 and 2. On 8 April 2005, the appellant was arrested at ‘factory’ premises in Doveton. The appellant and a man named Coventry lived separately in various parts of the factory premises; the appellant apparently in his car. After searching the factory premises, police found property which was later identified as having been stolen during burglaries between 10 February 2005 and 5 April 2005 at Box Hill South, Burwood, Blackburn South and Ashwood.
The appellant was born on 9 January 1965 and is single, and at the time of the offending he was 39 years of age. By occupation he was a motor mechanic, but, as the judge put it, he had a most disturbing criminal history, including convictions for offences against persons and property, and he had gone to the premises in Burwood to warn people off from selling drugs to his niece without having a scrap of evidence to suggest that the occupants of the house had anything to do with the supply of drugs. The sole basis for his belief that the residents were responsible was that he had seen some people coming and going from the house. In fact it was a student house from which the occupants were bound to come and go frequently, and there was nothing to suggest that they were involved with drugs.
The judge had before him a report dated 26 July 2006 prepared by a psychologist, Mr Michael Crewdson, which disclosed that the appellant had been battling illicit drugs, including heroin, for years. It was said, however, that the appellant had taken himself off drugs while in prison awaiting sentence and since then there had been a level of general improvement and increased stability in a number of areas of psychological functioning. In a further report dated 5 September 2006, prepared by a consultant psychiatrist, Dr Adam Deacon, it was observed that the appellant had a long history of heroin and amphetamine dependency, and that his criminal history was strongly suggestive of an antisocial personality type, and that he had failed to take responsibility to live a lawful adult life. It was noted that the appellant had remained drug free since being imprisoned, but Dr Deacon was not especially optimistic about the chances of the appellant remaining drug free into the future and of not migrating back into the life of criminality. Accordingly, the judge took the view that the appellant's prospects for rehabilitation were only fair.
The judge sentenced the appellant on the count of aggravated burglary (count 1) to two years and six months' imprisonment, on the count of intentionally causing injury (count 2) to twelve months' imprisonment, and on the count of handling stolen goods (count 3) to one year and six months' imprisonment, and his Honour ordered that the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 1, thus making for a total effective sentence of four years' imprisonment. In setting a non-parole period, the judge said that he considered that there should be a lengthy period of parole in order to assist rehabilitation. His Honour then noted that on 25 June 2004 the appellant had been sentenced in the Magistrates' Court in respect of other offences to an aggregate term of twelve months' imprisonment with a non-parole period of four months. The judge concluded that it was appropriate to set a new non-parole period in respect of all sentences that the appellant was to serve or complete and thus fixed the non-parole period of two years and six months.
There are several grounds of appeal against the sentence. The first is that, in setting a non-parole period in respect of all sentences that the appellant was to serve or complete, the judge overlooked that by the time of committing counts 1, 2 and 3 the appellant had already completed the non-parole period imposed by the Magistrates' Court in respect of the earlier offences and had been released on parole. Accordingly, it is said, there was no basis on which to make such an order, and, more importantly, that the consequence of doing so was that the judge took into account as in effect adding to the new non-parole period an allowance for the earlier four-month period.
I accept that submission. Technically speaking, the judge was in error in setting a non-parole period in respect of all sentences that the appellant was to serve or complete. The requirement to set such a period arises under s 14 of the Sentencing Act 1991, and that section applies only in circumstances where another court has sentenced the offender and fixed a non-parole period and the offender falls to be sentenced by the judge before the end of the non-parole period so set by the other court. Evidently, in this case, the judge overlooked that the appellant had completed the non-parole period set by the Magistrates' Court and, regrettably neither the prosecutor nor defence counsel drew it to his Honour's attention. I take leave to doubt that it resulted in any disadvantage to the appellant. The non-parole period of two-and-a-half years is sufficiently short to imply that the judge did not add anything in relation to the prior offences, but clearly enough the appellant was entitled to be sentenced according to law, and the conclusion that he was not so sentenced re-opens the sentencing discretion.
The second ground of appeal is that the judge breached the totality principle by ordering that the whole of the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 1. It is recognised, as the judge said, that the offence of handling stolen goods and the other offences ‘were in no way related’, and it is accepted that the separateness of count 3 may warrant a degree of cumulation,[1] but it is submitted that the fact that count 3 was unrelated to the other offences is not a justification in itself for total cumulation, bearing in mind the presumption of concurrency provided for in s 16(1) of the Sentencing Act 1991.
[1]Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 680.
I accept that submission too. It may be that it would have been open to order total cumulation in the properly considered exercise of discretion, although it is unnecessary to decide whether it would have been in the circumstances of this case. But the mere fact that the offences were unrelated did not compel or necessarily justify total cumulation,[2] and it appears to me that the judge proceeded on the basis that it did.
[2][1998] 3 VR 340, 347-8; R v Fuller-Cust (2002) 6 VR 496, 510 [49].
The third ground of appeal is that, in imposing a sentence of one year and six months' imprisonment on count 3, in circumstances where the appellant's co-offender, Coventry, had been sentenced in the Magistrates' Court in respect of the same offence, as well as a number of other offences including theft of a motor car worth $35,000, to an aggregate sentence of six months' imprisonment suspended for a period of twelve months, the judge breached the parity principle. It is submitted that, even allowing for the fact that the appellant had significantly more prior convictions than Coventry, and that Coventry was sentenced in the lower jurisdiction, the difference involves excessive and unjustified disparity; especially given that the Crown's case against the appellant in respect of count 3 was such that it did not contest that the appellant's involvement consisted of turning a blind eye to Coventry's possession of the stolen goods in the factory premises where they lived.
I do not accept that submission. In his sentencing remarks the judge expressly referred to the sentence imposed on Coventry and noted that Coventry's criminal history was far less extensive than the appellant's. It is also to be noted that, as well as being less extensive, Coventry's prior convictions had been punished with fines as opposed to sentences of imprisonment imposed on the appellant. I allow that there is a significant degree of disparity between the two sentences, but in all the circumstances, particularly that the two prisoners were dealt with in different jurisdictions and on different bases, I do not consider that the difference is so manifestly excessive as to engender a justifiable sense of grievance in the appellant or to leave an objective observer with the impression that justice has not been done.[3] It may be that the order for total cumulation would be seen to result in an unacceptable degree of disparity[4] but, for reasons already given, in my view that order should not stand.
[3]The Queen v Lowe (1984) 154 CLR 606, 610 (Gibbs J); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA).
[4]Cf R v Izzard (2003) 7 VR 480, 483 (Callaway JA).
The fourth ground of appeal is that the individual sentences and the total effective sentence and the non-parole period are all manifestly excessive. In view of the conclusions to which I have come concerning the other grounds, it is unnecessary to express a view about excessiveness as such.
The final ground of appeal is that there is fresh evidence that, since the sentencing, the parole on which the appellant was released at the time of committing the subject offences has been revoked, and that it must now be taken into account in
consideration of the parity principle. There is no doubt that is so.[5] On the other hand, as the Crown contends, in light of the seriousness of the appellant's offences, the fact that they were committed soon after being released on parole for not dissimilar offences, the appellant's very poor criminal history and the large number of offences for which the appellant was sentenced in the Magistrates' Court on 25 June 2004, primacy should be given to the obvious intention of sub-s 16(3B) of the Sentencing Act that where an offender commits an offence whilst released on parole, he will, in the ordinary course, be required to serve the balance of the sentence earlier imposed.[6]
[5]R v Alashkar [2007] VSCA 182, [12].
[6]Ibid [40].
If, as I think to be the case the sentencing discretion is re-opened, it falls to this Court to exercise the discretion afresh. But, having regard to the considerations to which I have referred, I see no reason to disagree with the sentence of two years and six months' imprisonment which was imposed on count 1 or the sentence of twelve months' imprisonment imposed on count 2. On count 3, and bearing in mind the parity principle as it applies in relation to the sentence which was imposed on the appellant's co-offender, I would impose a sentence of 18 months' imprisonment and order that 12 months of that sentence be served cumulatively on the sentence imposed on count 1. That makes for a total effective sentence of three years and six months' imprisonment. Like the judge, I consider that it is desirable that there be an extended period of supervision to assist with the rehabilitation of the appellant, and that it can be provided for with a lengthy parole period. Accordingly, I would set a new non-parole period of two years.
Otherwise, in my view, the orders made below should be confirmed.
BUCHANAN JA:
I agree that the appeal should be allowed for the reasons stated by Nettle JA and that the appellant should be re-sentenced as his Honour proposes.
CURTAIN AJA:
I agree that the appeal should be allowed for the reasons given by Nettle JA and that the appellant should be sentenced as his Honour proposes.
BUCHANAN JA:
The orders of the Court will be:
The appeal is allowed.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced as follows:
Count 1- 2 years’ and 6 months’ imprisonment.
Count 2- 12 months’ imprisonment
Count 3- 18 months’ imprisonment.
The Court directs that 12 months of the sentence imposed in respect of count 3 are to be served cumulatively on the sentence imposed in respect of count 1.
The total effective sentence is 3 years and 6 months' imprisonment.
A period of 2 years is fixed before the appellant is to be eligible for parole.
It is declared that the period of 787 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration has been made and its details.
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