Ralph v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0172

TYSON RALPH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	1 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 185
JUDGMENT APPEALED FROM:	[2021] VCC 1962 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Election – Two charges of burglary, one charge of theft, one charge of theft of motor vehicle, one charge of theft of firearm and one charge of handling stolen goods – Plea of guilty – Applicant sentenced to 3 years’ imprisonment with non-parole period of 18 months – Whether individual sentences, total effective sentence or non-parole period manifestly excessive – Appeal allowed – Applicant resentenced to total effective sentence of 2 years and 2 months.

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Counsel
Applicant:		Mr P Smallwood
Respondent:		Ms A Roodenburg
Solicitors
Applicant:	Victorian Bar Duty Barristers’ Scheme
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 4 October 2021, the applicant pleaded guilty before a judge of the County Court to two charges of burglary, one charge of theft, one charge of theft of a motor vehicle, one charge of theft of a firearm and one charge of handling stolen goods.
On 8 October, the judge sentenced the applicant to a total effective sentence of three years’ imprisonment, with a non-parole period of 18 months, as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Burglary	10 years	2 years	Base
2	Theft	10 years	2 years	None
3	Theft of motor vehicle	10 years	12 months	6 months
4	Theft of firearm	15 years or 1800 penalty units	18 months	6 months
5	Burglary	10 years	10 months	None
6	Handling stolen goods	15 years	12 months	None
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		18 months’ imprisonment
Pre-sentence Detention Declared:		227 days
Section 6AAA Statement:		Total Effective Sentence 5 years’ imprisonment with a non-parole of 3 years
Other Relevant Orders: 1. Forfeiture and disposal orders pursuant to ss 33(1) and 78(1) of the Confiscation Act 1997, respectively.

The applicant seeks leave to appeal sentence on a single proposed ground of appeal, namely:
The total effective sentence, individual sentences imposed and non-parole period are manifestly excessive;
a.The learned sentencing judge failed to give sufficient weight to the applicant’s plea of guilty at an early opportunity during the COVID-19 pandemic;
b.The individual sentence[s] imposed failed to reflect a perceptible amelioration of sentence as required given that the matter resolved as a plea during the COVID-19 crisis;
c.The sentences imposed on charges 2, 3 and 4 failed to properly reflect the principle of totality.
On 6 July 2022, a judge of this Court refused the applicant leave to appeal against sentence.[1] By notice dated 8 August 2022, the applicant elected to renew his application for leave to appeal against sentence to be determined by this Court.
[1]Ralph v The Queen [2022] VSCA 131 (‘Leave Reasons’).
For the reasons that follow, we would grant leave to appeal and allow the appeal.

Circumstances of offending

It is convenient to turn first to the circumstances of the applicant’s offending.[2]
[2]The circumstances of the offending were described in the Leave Reasons and are adopted in these reasons.
On 16 October 2020, the applicant committed burglary and theft at a property in Broadford. The offences were the subject of charge 1 (burglary), charge 2 (theft), charge 3 (theft of a motor vehicle) and charge 4 (theft of a firearm).
The applicant entered the Broadford property and gained entry to the house after the two residents had left for work for the day. The applicant searched each room in the house, rummaging through wardrobes, cupboards and drawers, and then stole the following items:
(a)a handbag;
(b)a box of .22 calibre cartridge ammunition;
(c)jewellery belonging to each resident;
(d)a puffer jacket;
(e)a Nissan car key and a Ford car key;
(f)a packet of Zooper Doopers;
(g)a pink candle gas light;
(h)black garbage bags;
(i)a digital Canon camera; and
(j)$300 cash from a draw in the master bedroom.
Whilst searching the master bedroom, the applicant discovered a gun safe in the wardrobe. The gun safe contained a rifle. The gun safe was fitted with two locks, a padlock and a handle lock. The applicant unlocked the padlock with a key found in a bedside drawer, and by unknown means bent the handle lock to open the safe. He took the rifle from the safe.
The applicant proceeded to the garage where he discovered a motorbike. He placed the rifle and the handbag containing the stolen items onto the motorbike and pushed the motorbike out of the garage, leaving the property through the side gate.
The applicant then committed a further burglary at Broadford Secondary College, which was the subject of charge 5. He entered a physical education shed containing camping and other equipment, which he arranged to make a bed. He also attempted to gain access to the school staff room by forcing open a window and removing an air vent from the bottom of a door to the room. He eventually left the school with the motorbike, handbag and rifle (he did not take any items from the school).
The applicant was identified by his DNA (which was found on two empty Zooper Dooper wrappers left on the floor of the garage of the Broadford property) and by CCTV footage from the school. The police searched the applicant’s home and found a large number of items that were stolen goods (but not the goods stolen from the Broadford property). The applicant accepted that he knew the items were stolen. This formed the basis of charge 6, handling stolen goods.

The plea

On the plea, the applicant relied on a report from psychologist, Ms Lisa Jackson. In that report, Ms Jackson recorded that the applicant’s father, who had been orphaned at age two, ‘had problems with alcohol and cannabis’. The report also noted that there was a history of physical discipline by the applicant’s father towards the applicant, which the applicant described as ‘floggings’. The applicant reported a history of behavioural problems from the age of seven or eight and learning difficulties at school. He left home at age 15, and stayed some time with drug using peers before moving in with his maternal grandmother who was unable to supervise him. The applicant reported being a victim of sexual abuse at the hands of an older cousin.
The applicant has seven children, and has had minimal stability in his adult years. He was homeless at the time of his remand for this offending. From age 13, he was taking drugs, initially cannabis, and in later years he reported a daily addiction to methylamphetamine which he took intravenously.
In Ms Jackson’s opinion, the applicant’s offending is ‘representative of chronic and long-standing mental health and substance abuse problems impacting on his judgement, ability to make rational choices and properly understand the consequences of his actions.’ Ms Jackson recorded that the applicant was willing to participate in a Long-Acting Injectable Buprenorphine Program in conjunction with additional drug counselling in order to address his drug taking. Ms Jackson concluded:
One of 6 children and with a father that was frequently absent from the family home due to his history of imprisonment, Mr Ralph appeared to have limited supervision in the home. He was victim to physical violence from his father and exposed to paternal substance abuse. A history of sexual abuse was evident between the ages of 5-10 years which he has never properly resolved. Mr Ralph recognises that he had problems with impulse control problems as a child and teenager that was reflective of his disruptive history. This increased his risk of developing anti-social and mental health problems in his adult years which have been characterised by unstable relationships, homelessness, and transient accommodation. Mr Ralph had 7 children born to subsequent partners one of whom is deceased and none of these children were in his care prior to his remand.
On the plea, the applicant did not rely on the report of Ms Jackson as evidence that would engage any of the Verdins principles,[3] and understandably so. However, it was submitted that a childhood involving particular aspects of trauma and disadvantage will often result in a pattern of instability that leads to drug use and mental health problems, and that it was in this context that the applicant’s offending occurred.
[3]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
After the applicant’s counsel relied on Bugmy,[4] the judge observed that, if by reason of the applicant’s upbringing he did not ‘have much of a moral compass’, then, she would need to consider protection of the community. It was in this context that counsel for the applicant submitted that his deprived background went some way to explaining his drug addiction, which was connected to his offending, whilst also submitting that the applicant did have a ‘moral compass’. Counsel submitted that the instability in the applicant’s life led to psychological issues that made him turn to drugs to effectively self-medicate, and that is how his background makes him more predisposed to criminal offending.
[4]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).

Reasons for sentence

After setting out the circumstances of the offending, the judge considered the gravity of the offending. The judge described the applicant’s offending as serious and deserving of punishment.[5] The judge noted that the applicant was abusing methylamphetamine at the time of the offending and that whilst the offending was not premeditated, the applicant was still able to take items of value. Further, the rifle and items of jewellery had not been located.
[5]DPP v Ralph [2021] VCC 1962, [18].
The judge described the impact of the offending on the victims, noting that one of the victims, Mr Ian Edwards, had provided a victim impact statement. Mr Edwards described how the impact of the applicant’s offending had been life-changing and that he and his wife continue to suffer from ongoing distress and hypervigilance.[6] He spoke of how some of the items that were taken by the applicant had immeasurable sentimental value. Mr Edwards ceased work after the applicant’s offending and has taken an early retirement.
[6]Ibid [20].
The judge then turned to the applicant’s prior criminal history which she described as ‘concerning’ and ‘lengthy’.[7] The judge noted the applicant has a history of court appearances for dishonesty offences, including burglaries, thefts and handling stolen goods. The applicant’s prior and subsequent offending led the judge to have grave concerns in assessing the applicant’s prospects of rehabilitation.[8] The judge did accept that the applicant had strong family support in assessing his prospects of rehabilitation. Despite this, and given the applicant’s lengthy criminal record, she concluded that the applicant’s prospects of rehabilitation were ‘fairly poor’.[9]
[7]Ibid [22].
[8]Ibid [25].
[9]Ibid [57].
In mitigation, the judge accepted that the applicant had pleaded guilty to the charges, that his plea of guilty was entered during the COVID-19 pandemic, and that the applicant’s background was a ‘most unhappy one’.[10] In regards to the applicant’s background, the judge noted that the applicant’s father had been violent towards him, he had been exposed to violence and drug abuse from an early age, and he was the victim of sexual abuse as a young child.[11] The judge said that she sentenced the applicant in the context of having endured a most deprived upbringing which had resulted in ‘mental health issues tied in with a resort to drug abuse.’[12] The judge said that she would make ‘some reduction in [the applicant’s] moral culpability, although, in circumstances where [Counsel] indicated that [the applicant’s] moral compass was intact’, that allowance would be fairly minimal.[13]
[10]Ibid [31].
[11]Ibid.
[12]Ibid [39].
[13]Ibid.
In regards to the applicant’s plea of guilty, the judge stated:
In your favour, I allow for, as I must, a significant discount in the sentence you would otherwise receive due to the early stage of your pleas of guilty. The prosecution accepted that you pleaded guilty at the earliest possible stage, and this entitles you to a significant discount, as you have saved the witnesses the time and trouble of giving evidence in contested proceedings, and you have also saved the community the time and expense of such proceedings.
Moreover, I am required by law to make a solid allowance in your favour for the fact that you were prepared to plead guilty to the offences during the COVID-19 pandemic, which has helped the courts in dealing with the immense backlog that they have in respect of hearings, in particular trials.[14]
[14]Ibid [27]–[28].
In terms of the applicant’s remorse, the judge found that the applicant was sorry for the situation he was in, but that he had ‘a way to go’ in demonstrating true remorse and insight.[15]
[15]Ibid [30].
The judge accepted that the applicant had a longstanding and entrenched methylamphetamine addiction. She noted that the applicant had attempted drug treatment a number of times and had had the benefit of community-based dispositions, however, these had not been successful.[16] The judge referred to the report of Ms Jackson, who noted that the applicant had previously been diagnosed with bipolar disorder and had experienced bad depression, unpredictable mood changes, unreliable interpersonal functioning and erratic behaviour. The judge said that she took into account ‘in a general way’ the state of the applicant’s mental health at the time of the offending.[17]
[16]Ibid [40].
[17]Ibid [52].
The judge also accepted that the applicant had been a model prisoner and that he had been given the trusted position of being one of the maintenance workers. The applicant had not used drugs since being imprisoned.

Parties’ submissions

The applicant submits that the judge’s allowance for his early guilty plea entered during COVID-19[18] was not adequately reflected in the individual sentences, orders for cumulation and total effective sentence. The applicant notes that whilst the judge said that she would give a ‘significant discount’ on the basis of his early plea of guilty, this was not reflected in the sentence.
[18]Relying on Worboyes v The Queen [2021] VSCA 169.
The applicant also submits that the burglary was ‘unremarkable’ and that a sentence of two years’ imprisonment does not allow for a reduction in sentence to account for his guilty plea. Further, he submits that the sentences on charges 2 (burglary) and 3 (theft of a motor vehicle) do not reflect the discount that should have been afforded, particularly in light of the judge’s comments set out above at [22].
In regards to the seriousness of the offending, the applicant notes that charge 2 related to items that were not particularly valuable, with the exception of the jewellery which he accepts was of sentimental value. In regards to charge 3, the applicant states that the motorbike was not in working order and that it was stolen by him wheeling it out of the garage.
The applicant submits that a sentence of 12 months’ imprisonment with six months to be served cumulatively for the theft of the motorbike, and a sentence of 18 months with six months to be served cumulatively for the theft of the firearm, offend the principle of totality.
The applicant also submits that the judge’s s 6AAA of the Sentencing Act 1991 statement — that she would have sentenced the applicant to a total effective sentence of five years’ imprisonment, with a three year non-parole period — would have constituted a manifestly excessive sentence in itself, had it been imposed.
The respondent submits that when all relevant matters are considered and balanced, it is not reasonably arguable that the total effective sentence, individual sentences or non-parole period are wholly outside the range of available sentences.
The respondent also submits that the offending the subject of charges 1 to 4 was particularly serious. In this regard, the respondent contends that the applicant entered the victims’ home, rifled through their belongings, took a number of items including those of sentimental value, and went to considerable effort to retrieve the rifle from the victims’ bedroom. The respondent notes that this offending has had a profound effect on the victims.
In regards to the applicant’s guilty plea, the respondent submits that the judge gave it sufficient weight and that she gave solid allowance for the applicant entering his plea during COVID-19. The respondent also submits that beyond the applicant’s early guilty plea, he had little else to call upon in mitigation.
In regards to totality, the respondent accepts that the offending giving rise to charges 3 and 4 arises out of the same episode of offending as charges 1 and 2, however, she says that the conduct involved distinct criminality. The respondent submits that the applicant went to considerable effort to remove both the motorbike and firearm, and that it would not have been open for the judge to impose sentences that were wholly concurrent with the base sentence. The respondent notes that no order for cumulation was made on charges 5 and 6, evidencing that the judge gave due regard to totality.
The respondent submits that the non-parole period, which represented 50 per cent of the head sentence, was within range. Further, the respondent also submits that any reference to the s 6AAA declaration is ‘unhelpful’.[19]
[19]Relying on Dunford v The Queen [2021] VSCA 304, [40]–[42] (Beach JA).

Consideration

In order to succeed on a ground of manifest excess, it is necessary for the applicant to establish that the sentence imposed by the judge was wholly outside the range available in the sound exercise of the sentencing discretion.[20] This is a stringent requirement, difficult to satisfy.
[20]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
It is convenient to start with some observations about the objective gravity of the offending. The burglary of a private home, the rifling through personal possessions and the theft of items of significant sentimental value is appalling. It understandably caused great pain and anguish to the victims, which is ongoing.
The transgression of the private boundary of the home will often leave the victim feeling violated and unsettled. That is what occurred here. The call for punishment and redress is powerful. However, it is also necessary to take into account some other features of the offending, which, although they provide no comfort to the victims, provide important context.
The offending occurred during daylight hours and, as was accepted on the plea, the applicant entered through an unlocked door. That does not mean that the victims bear any responsibility for the criminal actions of the applicant, but it does mean that there was no forced entry or damage to doors or windows to effect entry. The burglary was unplanned and unsophisticated. It was opportunistic.
The purpose of the burglary was theft, and the applicant stole a number of items of varying value. As this Court said in Chamma v The Queen:
The objective gravity of any theft needs to be considered by reference to what was taken (including its value), from whom it was taken, and all other relevant surrounding circumstances, including the purpose for which it was taken.[21]
[21][2020] VSCA 232, [71] (Priest, Beach and T Forrest JJA).

On that measure, the theft of the watch and jewellery was serious. It involved the theft of items of very significant sentimental value that could not be replaced.
The theft of the firearm was of a different order again. The decision to break into the firearm safe and steal the rifle sets it apart from the other items stolen from the property. It brought into play significant considerations of community protection. The applicant said that he disposed of the gun by throwing it into a river, but the judge was sceptical of that contention. On the state of the evidence, it is not possible to conclude that the firearm is in circulation, but issues of community protection and deterrence remain especially important in offending of this kind.
As already noted, the burglary was opportunistic. That aspect in large part reflected the applicant’s unstable life and drug addiction. At the time of the offending, the applicant was homeless.
The current offending was by no means out of character for the applicant. He has a lengthy and concerning criminal history. He has many convictions for theft, burglary and other anti-social offending. As the respondent rightly pointed out, he has eight prior convictions for burglary and some 45 prior convictions for theft. He has been given multiple Community Correction Orders, as well as several wholly suspended sentences. These were important matters to take into account. Of course, the applicant was not to be punished again for his earlier crimes, but the judge was entitled to give weight to his criminal record as an indicator of the applicant’s moral culpability, his prospects of rehabilitation, the community’s need for protection, and the increased importance of specific deterrence.[22]
[22]R v O’Brien & Gloster [1997] 2 VR 714, 718 ( Charles JA).
For a man with this history, and a lack of any demonstrated commitment to addressing his drug addiction, specific deterrence was a necessary feature of the sentence to be imposed. On the other hand, the applicant’s sorry life story was not entirely his own doing. As the judge accepted, the applicant had a deprived background. The judge made only minimal allowance for this in the sentence she imposed on the basis that the applicant’s counsel had submitted that his deprived background did not leave him without ‘a moral compass’. We take from that observation that the judge did not consider that the applicant’s capacity for moral judgment was impaired by reason of his deprived background.
It will be recalled that in Bugmy, the High Court noted profound childhood deprivation may compromise the person’s capacity to mature and to learn from experience, result in impulsive behaviour and that this inability to control behaviour may reduce the offender’s moral culpability. This latter aspect was not relied on by the applicant in this case. That did not mean that his deprived background had no role to play.
Neither the fact that offending took place under the influence of drugs nor that it was motived to fund a drug habit mitigated sentence. But the reason that the applicant had succumbed to drug addiction and his isolation from positive influences during his formative years did place his offending in a particular context. It is not merely a question of whether the applicant did or did not have ‘a moral compass’. Moral culpability is not binary and any assessment of moral culpability involves a variety of factors and degree.
As this Court said in the Director of Public Prosecutions v Drake:
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[23]
[23][2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citations omitted).
Although not the subject of specific error, and with respect to the judge, we would regard the applicant’s childhood deprivation as deserving of a significantly greater level of mitigation than the judge was prepared to afford it.
The plea of guilty was also a significant matter. Although his criminal history meant that any assertion as to remorse and any assessment of rehabilitation required close scrutiny, there were at least some more favourable aspects, including that he had done well in prison and, according to his counsel, was drug free.
Importantly, having regard to the additional burdens imposed on the court system by the pandemic, the utilitarian value of the plea was heightened. It is necessary that there be a perceptible impact on the sentence imposed.
In accordance with the orthodox approach, the judge was required to impose the appropriate sentence on each charge. It was also necessary for the judge to ensure that, through the process of applying cumulation or concurrency, a proportionate and just total effective sentence was imposed having regard to the overall level of criminality involved. Unless care is taken, a stern individual sentence may lead, through cumulation, to a manifestly excessive total sentence.
Charges 1 to 4 all arose out of a single incident. Plainly, the applicant fell to be punished for both the burglary and the associated thefts, however, as the judge recorded by her order for total cumulation in respect of charge 2, there was a clear overlap between the charges. It is notable that the judge ordered no cumulation on charge 2, which covered the theft of the items of sentimental value and which caused the most grief to the victims, but ordered 50 per cent of the sentence on charge 3 (theft of the motorbike) be served cumulatively. Both in the sentence imposed, and in the order for cumulation, the sentence on charge 3 formed a significant component of the sentence, which, when all of the factors are taken into account, was disproportionate.
Notwithstanding the attractive submission of Ms Roodenburg who appeared for the respondent, once regard is had to the plea of guilty, its particular utilitarian effect arising from the COVID-19 pandemic, and the relevant impact of the applicant’s deprived upbringing, we are persuaded that the sentence of three years’ imprisonment that was imposed in respect of the residential burglary and theft from the Broadford property was manifestly excessive. The judge was correct to regard the plea as entitling the applicant to a ‘significant discount’ and that there be a ‘solid allowance’ for the additional value of a plea in the current circumstances of the pandemic. In our assessment, when these matters are combined with the features of the applicant’s background that we have averted to, the total effective sentence was entirely outside the range. In the particular circumstances of this case, a sentence of three years’ imprisonment for the Broadford property offences, which involved a single episode of offending, was outside of the range available to the judge. That conclusion is sufficient to vitiate the sentence.
We would add that, although it did not increase the total effective sentence, the term of imprisonment of 10 months in relation to the burglary at the school was manifestly excessive. At the time of the offending, the applicant was homeless and after entering the school he sought to fashion a bed. There was an element of pathos to that offending that did not warrant a term of imprisonment of the length imposed, even for a person with a very poor record.
It is thus necessary to resentence the applicant. In doing so, it is necessary for this Court to impose the appropriate sentence on the material before it. In anticipation of the possibility that this Court might resentence the applicant, he relied on additional matters in mitigation that have arisen since the plea. First, the applicant had taken successful steps to return the gold watch that he had taken from the Broadford property. That does not account for all of the stolen property but it does ameliorate, at least to some extent, the loss and is also evidence of some further remorse on the part of the applicant.
Further, the applicant has completed some semi-intensive drug and alcohol treatment in prison and he has obtained a number of occupational certificates from Bendigo TAFE. The fact that the applicant is undertaking slow release drug therapy for his addiction also demonstrates a step towards rehabilitation and a willingness to address the drug addiction that has underpinned much of his offending. The applicant also relied on evidence of clear drug screens. This evidence provides some further evidence supporting a more favourable assessment of his prospects of rehabilitation but, given his lamentable past, any assessment must remain guarded.
Balancing these competing factors, we shall resentence the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Burglary	10 years	18 months	Base
2	Theft	10 years	18 months	None
3	Theft of motor vehicle	10 years	6 months	2 months
4	Theft of firearm	15 years or 1800 penalty units	18 months	6 months
5	Burglary	10 years	2 months	None
6	Handling stolen goods	15 years	2 months	None
Total Effective Sentence:		2 years and 2 months
Non-Parole Period:		14 months

We declare that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 8 months.
The Court is grateful for the considerable assistance given by Counsel for the applicant, who appeared on the application pro bono.

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[2022] VSCA 185

1 September 2022