Ralph v The Queen
[2022] VSCA 131
•6 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0172 |
| TYSON RALPH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | WALKER JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 6 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 131 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1962 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to burglary, various thefts and handling stolen goods – Total effective sentence of 3 years’ imprisonment – Non-parole period of 18 months – Whether manifestly excessive – Whether sentence reflected perceptible amelioration from guilty plea as required during pandemic – Sentence well within range – Worboyes v The Queen [2021] VSCA 169 – Leave to appeal refused.
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| Counsel | |||
| No appearances | |||
| Solicitors | |||
| Applicant: | Gallant Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA:
In October 2021 the applicant pleaded guilty 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. He was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Burglary[1] 10 years’ imprisonment 2 years’ imprisonment Base 2 Theft[2] 10 years’ imprisonment 2 years’ imprisonment None 3 Theft of Motor Vehicle[3] 10 years’ imprisonment 12 months’ imprisonment 6 months 4 Theft of Firearm[4] 15 years’ imprisonment or 1800 penalty units 18 months’ imprisonment 6 months 5 Burglary[5] 10 years’ imprisonment 10 months’ imprisonment None 6 Handling Stolen Goods[6] 15 years’ imprisonment 12 months’ imprisonment None Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 18 months Section 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years Other relevant orders: Forfeiture and disposal orders pursuant to ss 33(1) and 78(1) of the Confiscation Act 1997, respectively. [1]Contrary to s 76 of the Crimes Act 1958.
[2]Contrary to s 74 of the Crimes Act 1958.
[3]Contrary to s 74 of the Crimes Act 1958.
[4]Contrary to s 74AA of the Crimes Act 1958.
[5]Contrary to s 76 of the Crimes Act 1958.
[6]Contrary to s 88 of the Crimes Act 1958.
The applicant seeks leave to appeal against sentence on a single proposed ground of appeal, namely that the total effective sentence, individual sentences imposed and non-parole period are manifestly excessive.[7] The particulars to the proposed ground of appeal are as follows:
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.
[7]The applicant also sought an extension of time within which to file his application for leave to appeal, which was granted by the Registrar on 4 April 2022.
I would refuse leave to appeal. I consider that the applicant’s proposed ground of appeal has no prospects of success. The sentencing judge’s reasons were exemplary. Her Honour expressly stated that she had allowed for a ‘significant discount’ in relation to the guilty plea and that she made a ‘solid allowance’ for the fact that the guilty plea occurred during the COVID-19 pandemic, consistently with Worboyesv The Queen.[8] Further, the individual sentences and the total effective sentence appropriately reflected the principle of totality. Noting the breadth of the discretion conferred on a sentencing judge, the sentences imposed, including the non-parole period, were well within the range open to the judge in this case.
[8][2021] VSCA 169 (‘Worboyes’).
Factual background
The applicant committed burglary and theft at a property in Broadford. The offences were the subject of charges 1 (burglary), 2 (theft), 3 (theft of a motor vehicle) and 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. He 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 lighter;
(h)black garbage bags;
(i)a digital Canon camera; and
(j)$300 cash from a drawer 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 his 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 they were stolen. This formed the basis of charge 6, handling stolen goods.
The judge’s reasons
The trial judge’s reasons were thorough and careful. Her Honour assessed the various matters relevant to the sentencing exercise, and no complaint of specific error is made. In particular, her Honour:
(a)had regard to the maximum penalties for the offences;[9]
(b)concluded that the offending was serious, although not premeditated and lacking in sophistication;[10]
(c)gave strong weight to the need for both general and specific deterrence, and protection of the community;[11]
(d)took account of the impact on the victims of the offending (the residents of the Broadford property), one of whom gave a victim impact statement;[12]
(e)took account of the applicant’s lengthy criminal history, involving a number of similar offences to those in issue in the present case, and the applicant’s breaches of previous community-based dispositions;[13]
(f)took into account the lack of aggravating features of the offending;[14]
(g)gave limited weight to the applicant’s expression of remorse, given that he had continued to commit offences over an extensive period of time, including after the offences in question;[15]
(h)took into account the applicant’s difficult background, marred by violence, sexual abuse and drug abuse, which resulted in mental health issues tied to drug abuse, leading to a ‘fairly minimal’ reduction in moral culpability;[16]
(i)took into account the applicant’s state of mental health at the time of the offending;[17] and
(j)assessed the applicant’s prospects of rehabilitation as ‘fairly poor’.[18]
[9]DPP v Ralph [2021] VCC 1962, [2], [61] (‘Reasons’).
[10]Reasons, [18].
[11]Reasons, [58].
[12]Reasons, [20].
[13]Reasons, [22]–[23].
[14]Reasons, [26].
[15]Reasons, [30].
[16]Reasons, [31], [39].
[17]Reasons, [52].
[18]Reasons, [57].
In relation to the applicant’s plea of guilty, the judge said as follows:
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.[19]
[19]Reasons, [27]–[28].
The parties’ submissions
The applicant submitted that the judge’s remarks concerning the weight to be given to his guilty plea were not reflected in the sentences imposed by the judge. He submitted that:
(a)a sentence of 2 years’ imprisonment on charge 1, which involved an ‘unremarkable burglary, committed on a residential home’, did not represent a significant reduction for the early plea of guilty;
(b)a sentence of 2 years’ imprisonment on charge 2, which related to the items stolen during the burglary the subject of charge 1, which were not particularly valuable (save for the jewellery, which had sentimental value), did not represent the discount that the judge said had been afforded;
(c)a sentence of 12 months’ imprisonment on charge 3, which involved the theft of the motorbike (which was not working) did not represent a significant reduction for the early plea of guilty, and the cumulation of 6 months on the base sentence did not give sufficient weight to the principle of totality;
(d)a sentence of 18 months’ imprisonment on charge 4 (which involved the theft of a firearm, with no evidence that the burglary had been committed with an intention to steal a firearm, and with no evidence as to what happened to the firearm after it had been stolen), together with 6 months’ cumulation, did not properly reflect the principle of totality;
(e)a sentence of 10 months’ imprisonment on charge 5 for the second burglary (which was ‘low level’, involving the applicant entering a school and attempting to make a bed in a storage shed, and attempting to enter the staff room) was manifestly excessive; and
(f)a sentence of 12 months’ imprisonment on charge 6, which related to receipt of stolen goods, with no evidence as to their value, did not reflect a discount for the applicant’s early guilty plea.
The applicant also submitted that the judge’s s 6AAA statement — that she would have sentenced the applicant to a total effective sentence of 5 years’ imprisonment, with a 3 year non-parole period — would have arguably constituted a manifestly excessive sentence in itself, had it been imposed.
Ultimately, the applicant submitted that the individual sentences, the total effective sentence and the non-parole period ‘failed to properly reflect a perceptible amelioration of sentence, as required by Worboyes’. The result, he submitted, was sentences that were ‘wholly outside the range available in the proper exercise of the sentencing discretion’.
In contrast, the respondent contended that leave to appeal should be refused, because when all relevant matters were considered and balanced, it was not reasonably arguable that the total effective sentence, individual sentences or non-parole period were wholly outside the range of sentences properly open. The respondent emphasised the objective seriousness of the offending, as reflected in the applicable maximum penalties. Further, the theft of the firearm was a more aggravated sub-species of theft, as reflected in its higher maximum penalty.
The respondent submitted that the offending the subject of charges 1 to 4 was particularly serious, because it involved entering the victims’ home and systematically riffling through their belongings. That offending had a profound effect on the victims, as reflected in the victim impact statement of one of the victims. He now no longer feels safe in his home and struggles to trust other people. The respondent submitted that the quantum involved in dishonesty offending is but one relevant factor to be considered; the nature and quality of the goods stolen is also relevant.
As to the value of the guilty plea, the respondent accepted that the applicant’s plea was made at the earliest possible opportunity (as the judge found), and that a plea during the COVID-19 pandemic is to be given greater weight than in ordinary times. However, the respondent submitted that the judge had given the applicant’s plea sufficient weight, as reflected in her Honour’s reasons.
In relation to the applicant’s reliance on the judge’s s 6AAA statement, the respondent pointed out that this Court has observed that any analysis of a s 6AAA declaration is ‘unhelpful’, because it is merely an estimate based on a hypothetical trial; it does not form part of the sentence imposed.[20]
[20]Relying on Dunford v The Queen [2021] VSCA 304, [40]–[42].
The respondent submitted that, beyond the guilty plea, the applicant had little to call on in mitigation, and pointed out that the applicant had not complained that the judge failed to give adequate weight to any other mitigatory matters.
As for totality, the respondent submitted that although charges 3 and 4 arose out of the same episode of offending as charges 1 and 2, they involved distinct criminality. Charge 3 related to the theft of the motorbike (a distinct offence), which the applicant sold for financial gain. Charge 4 involved the theft of a firearm (also a distinct offence), which attracts a higher maximum penalty in recognition of the potential danger to the community flowing from the illegitimate circulation of firearms. In light of that, the respondent submitted that it would arguably not have been open to the judge to make the sentence on charge 4 wholly concurrent with the base sentence. The respondent also pointed to the complete concurrency in relation to charges 5 and 6, despite those charges involving separate offending. Ultimately, the respondent submitted that the judge’s order and total effective sentence appropriately accounted for totality.
Finally, the respondent submitted that the non-parole period, which represented 50 per cent of the head sentence, was within range, noting that it fell well below the common proportional range of 60 per cent to 75 per cent of the head sentence.
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.[21] It is not sufficient that this Court might have imposed different individual sentences, made different orders for cumulation or imposed a different total effective sentence. Rather, it must be shown that something has gone ‘obviously, plainly and badly wrong in the exercise of the sentencing discretion’. The sentence must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[22] As Callaway JA observed in R v McCorriston, sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, although they must, of course, fix the total effective sentence by reference to the principle of totality.[23]
[21]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’); DPP v Karazisis(2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[22]DPP v Macarthur [2019] VSCA 71, [57]–[59] (Ferguson CJ, Kaye and Weinberg JJA); Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA); Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]).
[23][2000] VSCA 200, [13].
Further, in so far as the applicant places weight on the role of cumulation in his submissions, it is important to recall the role that cumulation may play in the sentencing exercise. As this Court recently observed, the exercise of achieving an appropriate total effective sentence ‘involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case’.[24] And, in Pasinis v The Queen, this Court said as follows:
The duty of the sentencing judge is to impose an appropriate total effective sentence. That duty can be discharged in a variety of ways. One way is to moderate the individual sentences. Another — and preferable — way is to moderate the orders for cumulation.[25]
[24]Landale (a pseudonym) v The Queen [2022] VSCA 121, [78] (Kyrou, T Forrest and Walker JJA), quoting Nguyen v The Queen (2016) 256 CLR 656, 677 [64] (Gageler, Nettle and Gordon JJ); [2016] HCA 17.
[25][2014] VSCA 97, [50] (Neave JA and Kyrou AJA) (citations omitted) (‘Pasinis’). See also DPP v Grabovac [1998] 1 VR 664, 677, 680–1 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690).
That is, the authorities make clear that cumulation and concurrency play an important role in assisting a sentencing judge to impose appropriate sentences for multiple offences involving distinct criminality, yet still achieve a total effective sentence that is consistent with the principle of totality. It is thus difficult to assess orders for cumulation in isolation from the totality of the offending and the total effective sentence imposed.
In my opinion the ground of manifest excess in the present case has no prospects of success. I do not consider that the individual sentences on the various charges are so far outside the range of a reasonable discretionary judgment as to bespeak error. Nor do I consider that the orders for cumulation, and the resulting total effective sentence, were outside the range open to the trial judge in the reasonable exercise of discretion. Finally, a non-parole period of 50 per cent of the head sentence cannot be regarded as manifestly excessive.
The sentencing judge’s reasoning
As already noted, the sentencing judge’s reasoning was thorough and careful, and paid proper attention both to the general sentencing considerations and to the particular circumstances of this offending and offender.
In relation to the offending, the judge held that it was serious. No challenge was made to that conclusion on the appeal. Her Honour reached that conclusion having regard to the fact that the applicant had entered the home of two people who were entitled to have the sanctity of their home respected. Their property was stolen, including items of sentimental value that have not been recovered. Although the offending was not premeditated, and was unsophisticated, the judge observed that the applicant was able to take what was of value, and went to some lengths to do so.[26]
[26]Reasons, [18].
In relation to the applicant’s particular circumstances, the judge referred to the applicant’s extensive criminal history, including for offences of a similar kind to those for which she was sentencing him. The judge observed that community-based sentencing dispositions had been imposed for some of that earlier offending, but that those orders were repeatedly breached, resulting in sentences for immediate gaol terms. The judge also concluded that the applicant’s prospects of rehabilitation were ‘fairly poor’.[27] Again, that conclusion was not challenged in this Court. In light of the applicant’s history, including his addiction to methamphetamine, the judge did not err in placing significant emphasis on specific deterrence.
The applicant’s guilty plea
[27]Reasons, [57].
The judge expressly stated that she allowed for a ‘significant discount’ for the applicant’s guilty plea, and also made a ‘solid allowance’ for the fact that the plea occurred during the COVID-19 pandemic.[28] I do not accept the submission that, notwithstanding that she made those express statements, the judge did not give sufficient weight to the applicant’s plea of guilty. That is because the objective seriousness of the offending, the effect of the particular offending on the victims, the applicant’s criminal history and his poor prospects of rehabilitation all pointed to the need for a significant term of imprisonment. When those matters are taken into account, it is not possible to conclude that the judge gave insufficient weight to the applicant’s plea of guilty.
[28]Reasons, [27]–[28].
I also accept the respondent’s submission that it is not appropriate to utilise the judge’s s 6AAA statement to discern error in the sentencing judge’s approach to the appropriate discount for the plea of guilty. This Court has emphasised on a number of occasions that the s 6AAA statement is not part of the sentence actually imposed, is ‘notional and artificial’, and is of limited assistance in an appeal against sentence.[29]
[29]See, eg, Saab v The Queen [2012] VSCA 165, [59]–[62] (Buchanan, Weinberg and Mandie JJA); Staples v The Queen [2021] VSCA 307, [86] (Maxwell P, Kaye and Emerton JJA); Dunford v The Queen [2021] VSCA 304, [40]–[42] (Beach JA); Duale v The Queen [2022] VSCA 80, [34] (Kennedy JA).
The orders for cumulation
In my view none of the orders for cumulation were so great as to require the conclusion that they were not open to the judge in the reasonable exercise of her discretion.
(a)On charge 2 (theft), which occurred in the course of the burglary the subject of charge 1 (which was the base sentence), the trial judge ordered no cumulation.
(b)On charge 3 (theft of the motorbike), the judge ordered cumulation of 6 months. While this offending occurred in the course of the burglary that was the subject of charge 1, theft of a motor vehicle is a distinct offence involving distinct criminality. Although 6 months’ cumulation constituted 50 per cent of the sentence, there is no minimum or maximum percentage for cumulation, as noted in Pasinis (in which an order for 60 per cent cumulation was upheld).[30] Cumulation of 6 months, although stern, was open to the judge in the reasonable exercise of her discretion.
(c)On charge 4 (theft of the firearm), the judge ordered cumulation of 6 months. Again, while this offending occurred in the course of the burglary that was the subject of charge 1, theft of a firearm is a distinct offence involving distinct criminality and a higher maximum penalty than theft simpliciter. The offending was objectively serious, with potentially significant effects on the community by reason of the circulation of an unlawful firearm. Cumulation of 6 months, which is one third of the sentence for that offence, was well open to the judge in the reasonable exercise of her discretion.
(d)On charges 5 and 6 the judge imposed no cumulation, even though the offending was distinct, involving burglary at a different premises and handling stolen goods.
[30][2014] VSCA 97, [50] (Neave JA and Kyrou AJA).
The judge plainly gave careful consideration to the question of cumulation and ordered cumulation in relation to some, but not all, of the offending.
The final question is whether the total effective sentence of 3 years’ imprisonment was so excessive as to not have been open to the sentencing judge in the reasonable exercise of her discretion. I do not consider that it was. While that total effective sentence might be described as stern, in my opinion it was open to the judge, bearing in mind the number of offences, the seriousness of the offending, the applicant’s criminal history and his poor prospects of rehabilitation.
The non-parole period
As noted above, the applicant submitted that the non-parole period was manifestly excessive; however, he made no specific submissions about why that was so. It may be that this aspect of his proposed ground of appeal depended upon the contention that the total effective sentence was manifestly excessive, a contention that I have rejected.
For completeness, I record that I do not regard the non-parole period of 18 months as manifestly excessive. It is 50 per cent of the total effective sentence, which, as the respondent pointed out, is well below the usual range of 60 per cent to 75 per cent. A non-parole period of that length was comfortably within the range open to the judge.
Conclusion
Taking all relevant factors into account, in my opinion the individual sentences, total effective sentence and non-parole period imposed by the judge were all well within range. This was serious offending by a person with a significant and relevant criminal history, and a failure to comply with earlier court orders. The sentencing judge gave ample weight to the matters in the applicant’s favour, but the circumstances calling for a reasonably substantial term of imprisonment were compelling. In my view the individual sentences, the total effective sentence and the non-parole period were plainly open.
The applicant’s appeal thus has no prospects of success. I would refuse leave to appeal.
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