R v Saunders
[2002] VSCA 146
•9 September 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 137 of 2002
| THE QUEEN |
| v. |
| GREGORY JOHN SAUNDERS |
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JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 September 2002 | |
DATE OF JUDGMENT: | 9 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 146 | |
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Criminal law – Sentencing – Affray – Numerous co-offenders – Different roles played – Different personal circumstances – Appellant sentenced to longest head term – Whether justified – Whether principle of parity offended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K.E. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
PHILLIPS, J.A.:
This is an appeal, by leave, against sentence imposed in the County Court on 24 May 2002. On that day the appellant, having failed to appear on an earlier occasion, pleaded guilty to one count of affray and for that he was sentenced to eight months' imprisonment. He was dealt with at the same time for two summary offences, one of escaping from legal custody and the other for his failing to appear on the earlier occasion. On the charge of escaping from legal custody he was sentenced to one month's imprisonment to be served cumulatively on the eight months to which he had been sentenced on the count of affray, and on the other, his failure to appear, to 14 days' imprisonment which, in the absence of any order to the contrary, was to be served concurrently. Thus the total effective sentence was of nine months' imprisonment. There was pre-sentence detention of 64 days to be reckoned as having been served already, but no order was made for any non-parole period. The judge recommended that, if possible, the balance of the sentence should be served at Bendigo Prison.
The appellant, who is 23 years old, now appeals on two grounds. He alleges first that the sentence imposed was manifestly excessive in all of the circumstances and secondly that the sentence does not sufficiently reflect the principle of parity when a comparison is made with the sentences imposed on those who were his co-accused.
It is the fact that the appellant was one of seven co-offenders charged on the count of affray arising from events on 15 April 2001. I make no further reference to one of them who was sentenced, with the appellant, on 24 May: his disposition is of no present relevance. The other five, however, were named Mitwally, Lovegrove, Kerlin, Dodd and Boksich. Of those, Mitwally, Lovegrove and Boksich were charged also with intentionally causing damage to motor vehicles. In brief, all of them were members of a group who assembled at Cheltenham railway station to fight with another group. A private argument between one individual from each group had resulted in an arrangement being made that the two groups should meet at the station some time after 11 p.m. One group, it seems, expected that the dispute was going to be resolved on a "one on one" basis; the other group, which included the appellant and his co-accused, had other ideas. They arrived in three cars armed with weapons, including baseball bats, hockey sticks, club locks, metal poles and knives and, once there, they went into the attack. Many were assaulted and the groups quickly dispersed, but not before the windscreens of two cars had been smashed. As the sentencing judge noted on 22 March last when sentencing the co-accused, bystanders said of the incident: "At the time of the fight the car park ... looked like a riot. There were people running everywhere."
The five co-accused I have named were all sentenced on 22 March 2002. All were relatively young and all pleaded guilty to the charges they faced. Mitwally was 23 years old and had come to Australia from Egypt in 1979. He had previous convictions and was, by the time of the sentencing, already in gaol as a result of a sentence imposed upon him in the County Court on 24 August 2001. That was for subsequent offences, two armed robberies committed on 17 April, an armed robbery on 18 April and a handling charge which occurred as a result of events on 19 April. For these he was sentenced to a total effective sentence of two years' imprisonment with a minimum term of one year, which made him eligible for parole no earlier than 17 April 2002. Having pleaded guilty to one count of affray and one count of intentionally damaging property, Mitwally was sentenced on this occasion, 22 March 2002, to six months' imprisonment on the first and three months' imprisonment on the second, one month of the latter to be served cumulatively on the former. Of the total effective sentence of seven months' imprisonment, four months were to be served concurrently with the sentence he was already undergoing.
Lovegrove, who was 19 years old, had previous convictions for trafficking in amphetamines and he too, by the time of sentencing on 22 March 2002, was presently detained, albeit in a juvenile justice centre in Parkville. On 7 December 2001 he had been sentenced to six months' detention in a youth training centre for offences committed on 29 November 2001, including the offences of intentionally causing injury, assault in company and being in possession of a controlled weapon. Having pleaded guilty to one count of affray and one count of damaging property, he pleaded guilty also to one count of recklessly causing serious injury arising from an incident on 5 August 2000 and also to two summary offences involving assaults on police officers. He was sentenced to six months' detention in a youth training centre on the count of affray and three months' on the count of criminal damage. On the count of recklessly causing serious injury he was sentenced to nine months' detention in a youth training centre, and three months of the sentence imposed for the affray were to be served cumulatively thereon. On the summary matters, he was sentenced to be detained for a period of two months to be served concurrently with other sentences. Effectively, there was a further period of 12 months' detention for Mr Lovegrove.
Kerlin was 20 years old. He too, by the time of sentencing on 22 March 2002, was already held in detention, he being at the youth unit at Port Phillip Prison. In addition to pleading guilty to the one count of affray on 15 April 2001, he pleaded guilty to one count of recklessly causing serious injury arising from the incident already mentioned on 5 August 2000. He had been in custody since 26 January 2002 when his bail was revoked as a result of his failure to comply with bail conditions. He was also on remand for other charges (but I do not pursue that). Kerlin suffered from some mental health problems, and had other difficulties; and on the count of affray he was convicted and sentenced to a community-based order which was to last for 18 months, on condition that he reside at a Salvation Army drug rehabilitation facility. On the count of recklessly causing serious injury he was convicted and sentenced to a period of nine months' imprisonment which was then wholly suspended.
Dodd was 21 years old and he pleaded guilty to the one count of affray with which he was charged. It was said on the plea that Dodd was not alleged to have been involved in any assaults, but he was part of the group which attended at the railway station and he did arm himself with a club lock. The offence, it was suggested, was "out of character". He also pleaded guilty to a number of offences to be dealt with summarily: theft, aggravated burglary, burglary, being in possession of housebreaking implements and possession of cannabis. He too was convicted and sentenced, in short, to a community-based order, to last for a period of 12 months, on condition that he perform 150 hours of unpaid community work and undergo supervision, assessment and treatment for alcohol problems.
Finally, Boksich, who was only 18 years old, had no previous convictions and was not involved in any other matters. He had a good work history and was currently employed, and on 22 March 2002 the sentencing judge declined to record a conviction. On the one count of affray to which he pleaded guilty he was sentenced to a community-based order to last for 12 months which was subject to his performing 150 hours of unpaid community work and undergoing supervision and assessment and treatment for alcohol and drug addiction.
It has been necessary to set all this out in order to give context to the argument of counsel today that the sentence imposed upon the appellant was unjustifiably disparate when compared with the sentences imposed upon the co-offenders. I have said already that the appellant failed to appear when required for sentencing in March 2002. According to the sentencing judge on 24 May, "he was apparently affected by cannabis and alcohol and he rebuffed an attempt by his mother to persuade him to attend court". He was arrested on 22 March 2002 and it was as a result that by 24 May he had spent 64 days in custody. I have already mentioned that for his failure to appear in March the appellant was sentenced on 24 May to 14 days' imprisonment to be served concurrently with the other sentences.
As for the other summary offence for which he was dealt with on 24 May, that of escaping from legal custody, that arose out of an incident on 13 July 2001 at the Moorabbin railway station. After an altercation involving the police at the railway station and a threatening gesture made by the appellant to one of the officers, he was approached and placed under arrest. While being held, the appellant and the police officer were surrounded by a number of young persons, some of whom pulled the officer off the appellant, allowing him to run away. The appellant was intoxicated at the time and felt particularly aggrieved because when arrested he was in fact in possession of a valid ticket.
So far as the affray on 15 April 2001 was concerned, the prisoner's part in that affray was the subject of some disagreement on the plea. There was no dispute that he was in the lead group with Mitwally and Boksich and that he was carrying a hockey stick. But in his record of interview he denied hitting anyone with the hockey stick and claimed that, once he got in amongst the other group, he realised that he knew some of them and decided not to hit anybody and told them instead to run away. Ultimately the prosecutor conceded, on the plea, that there was no direct evidence that the appellant had struck anyone.
The appellant, who was 22, had had trouble at home because of his abuse of alcohol and cannabis. There was a psychological assessment by Mr Joblin and counsel submitted that the appellant should be assessed for suitability for an intensive correction order. This the judge declined to do, because of previous breaches of two community-based orders. On 27 January 1998, just after his 18th birthday, the appellant was convicted of armed robbery and sentenced to a community-based order for a period of two years. Apparently he had robbed a fish and chip shop, when affected by alcohol and cannabis and while carrying a small kitchen knife. That community-based order was breached and for that the appellant was fined on 22 March 1999. The breach was his failure to attend for community work and supervision but the extent of compliance otherwise with the order was not made clear to the sentencing judge on 24 May. In the result, his Honour was told, the appellant was not required to complete the community-based order. Counsel claimed that the appellant had remained drug free for about three months at this time.
On 31 January 2001, the appellant was convicted of further offences in the Magistrates' Court, primarily for trafficking, using and possessing cannabis. He was sentenced to a community-based order for nine months. He did not complete any part of the 40 hours community work ordered and the present offending on 15 April 2001 was a breach of that community-based order. None the less his involvement in the affray was limited, although he was armed; he did plead guilty and had been co-operative with police; and prior to the affray he had been drinking, which was consistent with his problem with alcohol and cannabis. He still had the support of his family, it was put on the plea; he had been drug and alcohol free in prison and was determined to stay that way; and now, because of his failure to attend when required, he had spent more than two months in gaol. The judge accepted that this was "his first experience of gaol and [it] has been difficult for him".
As I said earlier, it was the submission of the appellant's counsel on the plea that his suitability should be assessed for an intensive correction order. On the plea, the prosecutor agreed with defence counsel, but the judge considered that there was "too high a risk that the prisoner would fail to meet the rigorous demands of an intensive correction order while still maintaining his liberty". Accordingly, he considered that a gaol sentence was appropriate. Correctly, if I may say so, he described the appellant as having "a poor record", but, at the same time, he expressed "some hope in the prisoner's position", particularly if the drug and alcohol abuse was addressed. It was in these circumstances that the judge sentenced him as mentioned at the outset, requiring the appellant therefore to serve "a further period of about seven months in gaol".
The arguments raised today by counsel on behalf of the appellant are twofold: manifest excess and disparity. I cannot conclude that eight months' imprisonment on the count of affray was manifestly excessive, but it does seem to me that, when the sentence is compared with the sentences imposed on the co-offenders, the sentence of eight months' imprisonment cannot be justified. Both Mitwally and Lovegrove had significant previous convictions and both were already in trouble again as a result of which they were in custody. Their prospects of rehabilitation seem to me to have been worse than those of Saunders. None the less, each of them
received a custodial sentence of only six months and it is difficult to see why more than six months should have been meted out to Saunders. Before us counsel for the respondent referred only to what she described as the good prospects of rehabilitation of both Mitwally and Lovegrove, and perhaps something could be said along those lines, notwithstanding their subsequent offending. Be that as it may, it does not seem to me that there was in all of the circumstances anything to justify a longer head term for Saunders on the count of affray than that imposed on either Mitwally or Lovegrove. I simply observe that the sentencing judge gave no particular reason for the longer term given the appellant, and, with great respect, I think that his Honour made a slip when he sentenced Saunders on 24 May to eight months’ imprisonment, after sentencing both Mitwally and Lovegrove on 22 March to only six months’.
Accordingly, I would allow the appeal, which, in substance, was concerned only with the sentence imposed on the count of affray. I would confirm the other sentences but set aside the sentence imposed of eight months' imprisonment and substitute therefor a sentence of six months' imprisonment. If the sentences imposed are otherwise confirmed, the total effective sentence becomes one of seven months, and it should be declared that, as at this day, 9 September 2002, the appellant should be taken to have already served 172 days of that sentence. As I calculate it, that means that the appellant has less than two months to serve of the custodial sentence.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
The orders of the Court are as follows:
The appeal is allowed.
The sentences imposed below are set aside. In lieu the appellant is sentenced as follows.
On the count of affray the appellant is sentenced to six months' imprisonment.
On the charge of escaping from legal custody he is sentenced to one month's imprisonment, that period of one month to be served cumulatively upon the sentence imposed on the count of affray.
On the charge of failing to appear he is sentenced to 14 days' imprisonment, such sentence to be served concurrently with the other sentences being imposed.
In the result, the total effective sentence is of seven months' imprisonment. It is declared that as at this day, 9 September 2002, 172 days are to be reckoned as already served under these sentences, and the making of that declaration and its contents are to be noted in the records of the Court.
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