Roe v The Queen
[2021] VSCA 54
•12 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0215
| DAVID ROE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2021 |
| DATE OF JUDGMENT: | 12 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 54 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1560 (Judge Trapnell) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Kidnapping - Applicant and co-offender both convicted of kidnapping – Applicant’s sentence for kidnapping three months longer than sentence of co-offender – Whether difference in sentences reasonably open to judge –Applicant had lesser role in offending but significantly more extensive criminal record, evidencing propensity to violence – Co-offender had less extensive record and significant period of immigration detention – Difference in sentences reasonably open – Leave to appeal refused - Green v The Queen (2011) 244 CLR 462, Nipoe v The Queen [2020] VSCA 137 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Leanne Warren & Associates |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
McLEISH JA:
On 1 April 2019, the applicant was found guilty after a trial of one charge of kidnapping,[1] one charge of false imprisonment,[2] and two charges of common law assault. On the same day, Nalaka Wijeratne, a co-accused, was found guilty of one charge of kidnapping, one charge of false imprisonment and one charge of making a threat to kill. Wijeratne had previously pleaded guilty to one charge of obtaining a financial advantage by deception.
[1]Contrary to s 63A of the Crimes Act 1958.
[2]Contrary to common law.
A third person, Suncica Brajic-Bejdic, had previously pleaded guilty to charges of kidnapping, false imprisonment and knowingly dealing with proceeds of crime. Brajic-Bejdic was sentenced to 3 years’ imprisonment on the kidnapping charge, 2 years’ imprisonment on the false imprisonment charge (9 months cumulated) and 9 months on the proceeds of crime charge (3 months cumulated). She received a total effective sentence of 4 years’ imprisonment and a non-parole period of 2 years.
On 30 September 2019, the applicant was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1.
Kidnapping
[s 63A Crimes Act 1958]
25 years’ imprisonment
6 years’ imprisonment
Base
2.
False Imprisonment (Common law)
10 years’ imprisonment
3 years’ imprisonment
1 year
3.
Common law assault
5 years’ imprisonment
30 days’ imprisonment
14 days
6.
Common law assault
5 years’ imprisonment
30 days’ imprisonment
14 days
Total Effective Sentence:
7 years and 28 days’ imprisonment
Non-Parole Period:
5 years’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
461 days
6AAA Statement:
N/A
Other orders:
Forfeiture, disposal.
On the same day, Wijeratne was sentenced by the same judge as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
Indictment C1711284B
1.
Kidnapping [s 63A Crimes Act 1958]
25 years’ imprisonment
69 months’ imprisonment
Base
2.
False Imprisonment (Common law)
10 years’ imprisonment
3 years’ imprisonment
1 year
4
Make threat to kill
10 years’ imprisonment
2 years’ imprisonment
1 year
Indictment C1711284A
1.
Obtain financial advantage by deception
10 years’ imprisonment
1 year’s imprisonment
6 months
Total Effective Sentence:
8 years and 3 months’ imprisonment
Non-Parole Period:
6 years’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
387 days
6AAA Statement: Not applicable on indictment C1711284B. Eighteen months’ imprisonment for indictment C1711284A.
Other orders: Forfeiture, disposal, forensic sample.
The applicant seeks leave to appeal against sentence on the single ground that the sentencing judge failed to observe parity between his case and that of Wijeratne.[3]
[3]A second proposed ground, asserting error in the manner in which the judge treated the delay between the time of charge and the applicant’s trial, and the further delay from the time of conviction to sentence, was abandoned.
Summary of offending
The victim of the offending was Muditha Ganehiarchchi. He was aged 23 at the time of the offences, having arrived in Australia from Sri Lanka about one year earlier. On about 3 March 2017, Mr Ganehiarchchi met Wijeratne at a party in Dandenong. Wijeratne told him that he could procure a loan for him. Mr Ganehiarchchi wished to borrow $26,000 in order to purchase a car. He was deceived by Wijeratne and provided him with his bank account and other personal details. A loan was subsequently approved by the Commonwealth Bank of Australia and the funds were paid to Mr Ganehiarchchi’s bank account.
Wijeratne owed money to Brajic-Bejdic. The sum of $19,960 was fraudulently transferred by Wijeratne out of the proceeds of the loan obtained by Mr Ganehiarchchi into a bank account in the name of Brajic-Bejdic’s husband.
On 3 April 2017, Mr Ganehiarchchi became aware of the unauthorised transfer of his funds. He contacted the bank, which led to both his own and Brajic-Bejdic’s husband’s accounts being frozen. When Brajic-Bejdic became aware of this, she and Wijeratne made a series of efforts to get Mr Ganehiarchchi to unfreeze the account so that she could withdraw the $19,960. He refused to co-operate. As a result, Wijeratne and Brajic-Bejdic planned and executed his kidnapping so as to force him to unfreeze the account in order for Brajic-Bejdic to access the funds.
On 17 April 2017, at about 7:30 pm, Wijeratne called Mr Ganehiarchchi on the telephone and told him that he was outside his house, asking him to come outside. Mr Ganehiarchchi did so and, as he approached Wijeratne, who was standing near his motor vehicle, the applicant and Brajic-Bejdic suddenly appeared. Wijeratne produced a 20 centimetre long steak knife from his right-hand pocket and pressed it against the front of Mr Ganehiarchchi’s throat, telling him to get into the car.
The applicant pushed Mr Ganehiarchchi and told him to get into the car. He pushed him into the rear seat of the vehicle, got in beside him and covered Mr Ganehiarchchi’s head with a jacket he was wearing, thereby covering his eyes. He took Mr Ganehiarchchi’s wallet and mobile phone from him. Mr Ganehiarchchi was required to keep his head bent down on his knees during the subsequent car trip. Wijeratne got into the driver’s seat and Brajic-Bejdic was in the front passenger seat. In the car, Wijeratne told Mr Ganehiarchchi to activate his account. Brajic-Bejdic told him that he was to stay the night at her house and the following morning he had to go to the bank to re-activate the account. The trip to her house lasted about 30–45 minutes. These facts gave rise to the kidnapping charge.
The car travelled to Brajic-Bejdic’s house in St Albans. The applicant and Wijeratne were staying in the house at that time. With his face still covered, Mr Ganehiarchchi was taken by force into a bedroom of the house where his wrists and ankles were tied to a chair with a white electrical extension cord. Another power cord was tied around his neck and secured to the cord about his wrists, making him unable to move. His jacket was then removed from his head at which point the applicant and Wijeratne were in the room.
After about 10 minutes, Brajic-Bejdic entered the room wearing a mask and hit Mr Ganehiarchchi once with a metal vacuum cleaner pole on his left arm. The applicant was holding him while this happened. This was the basis of the first common law assault charge. Wijeratne was not present during this assault.
The applicant left the room, and was not present when Wijeratne subsequently re-entered the room with a knife. Wijeratne held the knife to Mr Ganehiarchchi’s throat and demanded that he activate the account. Mr Ganehiarchchi told him that he would give him the money.
Some time later, after the applicant had returned to the room, Mr Ganehiarchchi tried to wriggle free of his bonds. The applicant observed this and informed Brajic-Bejdic. She returned to the room wearing the mask and asked Mr Ganehiarchchi whether he was trying to escape. When he said that he was not, she hit him three or four times on his left leg below the knee with the vacuum cleaner pole. While this was happening, the applicant was holding Mr Ganehiarchchi tightly by the shoulder. This gave rise to the second charge of common law assault.
Eventually, Mr Ganehiarchchi fell asleep. At that time, the applicant was in the room sleeping on the floor, in effect securing Mr Ganehiarchchi so that he could not escape. Mr Ganehiarchchi was given no food or water, was not taken to the bathroom or toilet and was in pain and very frightened.
The next day, Wijeratne approached Mr Ganehiarchchi. He agreed to go to a bank branch and unfreeze Brajic-Bejdic’s bank account. For this purpose, the three offenders took Mr Ganehiarchchi to a shopping centre where there was a branch of the bank. During the car trip his head was again covered with his jacket so that he could not see. Wijeratne and Mr Ganehiarchchi entered the bank and made arrangements with a customer service officer to have the accounts unfrozen and a form was completed and signed by Mr Ganehiarchchi for that purpose. He was told it would take 24 hours to unfreeze the accounts. The offenders then took Mr Ganehiarchchi back to the car and to the St Albans address. Mr Ganehiarchchi was given a glass of water and a biscuit and Wijeratne told him that he was to remain at the house for a further 24 hours to ensure that the accounts were in fact unfrozen. He was kept in the living room for about half an hour and then returned to the bedroom where he had previously been imprisoned. He was tied up again in similar fashion, but without the neck tie. He was kept alone in the room all day on 18 April 2017.
On the next morning, Wijeratne telephoned the bank to check whether the money was available and was told that more needed to be done to release the funds and that he would have to attend the branch again for that purpose. The offenders then took Mr Ganehiarchchi back to the shopping centre and Wijeratne again went to the bank. Necessary arrangements were made for unfreezing the account. Brajic-Bejdic then went to an automatic teller machine at the shopping centre and withdrew some money. The group then drove to a number of automatic teller machines where she withdrew almost the entire amount of $19,960 from the account.
The offenders then drove Mr Ganehiarchchi back to the St Albans address and he went into the living room for a short time. He then went into a different vehicle and Wijeratne alone drove him to the South Yarra railway station where he was finally released at about 5:00 pm. Wijeratne returned his wallet and phone to him at that time.
The false imprisonment charge was a continuing offence over almost two days, between about 7:30 pm on 17 April 2017 and about 5:00 pm on 19 April 2017.
Sentencing remarks
In light of the limited scope of the application for leave to appeal, it is not necessary to set out at great length the remarks made by the judge in sentencing the applicant. The judge considered the offending to be very grave and the applicant’s moral culpability to be high. He said that denunciation, general deterrence and just punishment were to be given significant weight in sentencing.[4]
[4]DPP v Roe [2019] VCC 1560, [43] (‘Sentencing Remarks’).
The judge noted that the applicant was 33 years old and was aged 30 at the time of the offences. He referred to his Aboriginal and Torres Strait Islander origin and his loving and supportive family. The applicant had a history of substance abuse, principally methamphetamine (‘ice’). However, as part of his release from prison while serving a term of imprisonment in Darwin, he had commenced a drug rehabilitation program and responded well to that program. He had left the program upon being extradited to Melbourne to face the present charges.
The applicant had an extensive criminal history, involving a large number of offences involving violence, including 12 charges of aggravated assault and 11 charges of failing to comply with restraining orders and engaging in conduct contravening domestic violence orders. He had a prior conviction for demanding with menaces, recklessly engaging in serious harm and making a threat to kill. In addition, there was a prior conviction for assault with a weapon, as well as drug-related, dishonesty and driving offences.
The judge described the prior criminal history as significant, with a number of concerning features in relation to the applicant’s propensity to violence. He said that he needed to give weight to specific deterrence and the protection of the community in light of the applicant’s ‘appalling prior criminal history’ and addiction to methamphetamine.[5] The judge said that he could only adopt ‘a very guarded approach’ to his prospects of rehabilitation. He then referred to the applicant’s role in the offending:
So far as your role in the offending conduct is concerned, I accept that you played a lesser role than Wijeratne. However, you played a significant role both in the kidnapping and the false imprisonment offences. You were in effect a custodian of Ganehiarchchi from the time of the kidnapping until shortly before his release. However, I accept that you did not derive any financial benefit from committing the offences.[6]
[5]Ibid [73].
[6]Ibid [75].
When the judge came to applying the sentencing principles, he referred to parity and the fact that he had had regard to the sentences imposed on Brajic-Bejdic some 10 months earlier. The judge described her situation as ‘entirely different’ from that of the applicant.[7] It is not necessary to say more on this subject, given that no issue was taken with parity between the sentences of the applicant and that of Brajic-Bejdic. The judge did not say more about the need for parity in respect of the sentence he imposed on the same day on Wijeratne.[8]
[7]Ibid [82].
[8]Conversely, in sentencing Wijeratne, the judge did not refer to the question of parity with the sentence of the applicant: DPP v Wijeratne [2019] VCC 1561 (‘Wijeratne Sentencing Remarks’).
Relevant observations made by the judge in the course of sentencing Wijeratne are noted later in these reasons.
Proposed ground of appeal
The applicant seeks leave to appeal against sentence on the following ground:
The learned judge erred in imposing sentence by failing to observe parity between the co-accused.
Submissions
The applicant submitted that the disparity between the sentences imposed on the applicant and Wijeratne in respect of the kidnapping charge was not reasonably open on the facts of the case. It will be recalled that the applicant was sentenced to 6 years’ imprisonment on that charge, whereas Wijeratne was sentenced to 5 years and 9 months’ imprisonment.
Mr Smallwood, on behalf of the applicant, pointed first to the matters that the two cases had in common. Neither man pleaded guilty. There was delay in finalising both cases. They were both charged as principals in joint offending in which they acted together.
Counsel accepted that the applicant’s criminal record was extensive, but noted that the judge had described Wijeratne as having a ‘concerning’ criminal record as well. He also accepted that the applicant had prior convictions for violence, which Wijeratne did not. It was submitted that, despite their different records, the judge regarded both of them as having ‘guarded’ prospects of rehabilitation and said that ‘real weight’ needed to be given to specific deterrence in each case. Despite the differences, the judge was said to have ultimately made the same use of the co-offenders’ criminal records in the sentencing calculus.
Turning to distinguishing features, Wijeratne was liable to deportation at the end of his sentence, but this factor was said to have been of limited significance since his marriage had ended and his family were in Sri Lanka, his country of origin. While he had served 466 days in immigration detention, and the judge took this into account in a ‘broad and practical way,[9] there was no reason to infer that this had affected the individual sentences, as distinct from the total effective sentence and non-parole period.
[9]Wijeratne Sentencing Remarks [81], citing Underwood (a pseudonym) v The Queen [No 2] [2018] VSCA 87 (Priest and McLeish JJA) and Sahhitanandan v The Queen [2019] VSCA 115, [29]–[36], [40]–[41] (Priest, McLeish and Weinberg JJA).
Finally, it was argued that the applicant had mitigating features in his favour alone. In particular, his moral culpability was less because he was not the mastermind of the offending. The judge accepted that he had a lesser role, and it was meaningfully so because it was Wijeratne and not the applicant who deceived the victim and planned the kidnapping, for his own gain. While the applicant had taken an active part in the kidnapping, he was not the one who produced the knife and held it to the victim’s throat. In addition, the applicant had in his favour, for sentencing purposes, that he suffered from social isolation in prison (as an indigenous person outside his cultural environment), and that he had engaged positively with steps towards rehabilitation.
The respondent agreed that the question before the Court was whether the difference in sentences was reasonably open to the judge. In its written case, the respondent submitted also that, while disparity needed to be capable of rational explanation, precise mathematical evaluation was both impossible to achieve and contrary to the instinctive synthesis approach to sentencing.[10]
[10]Kumas v The Queen [2017] VSCA 287, [42].
Ms Ruddle, for the respondent, did not take issue with Mr Smallwood’s characterisation of the relative roles and culpability of the two offenders, and noted that the judge had likewise accepted that the applicant had a ‘lesser’, although nonetheless significant, role.[11] However, she drew attention to two factors that she submitted were of great importance.
[11]It was said that it was significant, in particular, that the applicant had played the role of the ‘guard’ or ‘custodian’ of Mr Ganehiarchchi during both the kidnapping and the period of false imprisonment.
First, there were significant differences between the two men’s criminal records. The applicant had multiple convictions involving violence, whereas Wijeratne’s convictions predominantly involved dishonesty. The applicant had been sentenced to terms of imprisonment six times, whereas Wijeratne had not received such a sentence before. The judge characterised the applicant’s criminal record as ‘appalling’, and Wijeratne’s as ‘concerning’. Although the judge had said that both had ‘guarded’ prospects of rehabilitation, he also described the applicant’s prospects as ‘very guarded’. It stood to reason that considerations of specific deterrence and safety of the community must have weighed more heavily in the applicant’s case.
Secondly, the period of immigration detention, while not to be characterised as pre-sentence detention and only to be taken into account in a ‘broad and general’ way, was said to ‘leap from the page’ as a mitigating feature favourable to Wijeratne alone. It did not matter that the judge had not quantified the effect of that consideration, and it would not have been appropriate for him to have done so.
Consideration
Appellate intervention in the case of disparity between the subject sentence and that imposed on a co-offender is a reflection of the notion of equal justice.[12] Disparity of this kind may justify intervention even though the sentence, taken by itself, and having regard to current sentencing practice more generally, is not manifestly excessive.[13] The focus of the ground is on the different treatment of co-offenders in like circumstances, or the similar treatment of co-offenders in unlike circumstances.[14]
[12]Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’).
[13]Ibid 475 [32].
[14]Ibid 473 [28].
As the parties in the present application correctly submitted, the issue raised by the parity ground is whether it was reasonably open to the sentencing judge to arrive at a sentencing differential of three months between the applicant and Wijeratne. In Nipoe v The Queen,[15] the Court said:
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed.[16] It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[17]
[15][2020] VSCA 137, [40] (Maxwell P, Niall and Emerton JJA); see also Taleb v The Queen [2020] VSCA 329, [31] (Maxwell P and Weinberg JA); Ip v The Queen [2020] VSCA 211, [21] (Maxwell P and Weinberg JA); Zaia v The Queen [2020] VSCA 9, [83]–[84] (Kyrou, Kaye and McLeish JJA); Topal v The Queen [2019] VSCA 289, [21]–[24] (Maxwell P and Niall JA); Sharp v The Queen [2018] VSCA 327, [48]–[54] (Maxwell P and Niall JA); Sikoulabout v The Queen [2018] VSCA 268, [72]–[76] (McLeish and Niall JA); Adams v The Queen [2018] NSWCCA 139, [83]–[84], [87] (Johnson J, Simpson AJA and Adamson J agreeing at [1] and [92]).
[16]Green (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).
[17][2001] VSCA 226, [25].
The inquiry into whether the disparity was reasonably open to the sentencing judge reflects the restraint with which the disparity ground is approached.[18] How the relevant similarities and differences between co-offenders are reflected in the respective sentences is a matter for discretionary judgment.
[18]See Lowe v The Queen (1984) 154 CLR 606, 623-4 (Dawson J); R v Mercieca [2004] VSCA 170, [17] (Winneke P, Ormiston and Charles JJA agreeing at [25] and [26]).
We therefore turn to consider whether the difference in the sentences of the applicant and Wijeratne on the kidnapping charge was reasonably open to the sentencing judge, bearing in mind that ‘precise mathematical evaluations of debits and credits between offenders is not only impossible to achieve, but contrary to the methodology of intuitive synthesis’.[19]
[19]Kumas v The Queen [2017] VSCA 287, [42] (Maxwell P, Weinberg and Priest JJA) (citation omitted).
The ‘reasonably open’ test starts with the judge’s reasons for sentence, but while it is desirable, it is not essential to its reasonableness that the justification for the disparity in question be articulated in terms by the sentencing judge. The question whether the disparity is reasonably open is ultimately one for the appellate court. In the present case, the judge did not expressly address the question of parity as between the applicant and Wijeratne. It is therefore necessary to examine the reasons to identify the judge’s findings on pertinent matters, in order to decide whether the disparity which resulted was reasonably open on those findings.
The starting point must be, as both counsel in this Court accepted and the sentencing judge found, that the applicant’s role in the offending was less than that of Wijeratne. We would characterise the difference as modest but appreciable. Wijeratne instigated the offending and stood to gain financially from it; there was no evidence as to whether the applicant had anything to gain from his involvement. Wijeratne facilitated the kidnapping and wielded the knife. But the applicant was a full participant and forced the victim into the car, took his wallet and phone from him, sat beside him, and prevented him from seeing where he was being taken.
The lesser nature of the applicant’s role in the kidnapping means that the fact that he received a somewhat greater sentence must fall to be explained by differences in the circumstances of the two offenders. In our view, despite Mr Smallwood’s careful submissions, that explanation is readily to hand. The applicant had a criminal record the judge characterised as ‘extensive’ and ‘appalling’.[20] He had 12 charges of aggravated assault, 11 of failing to comply with restraining orders or contravening domestic violence orders, and single convictions for demanding with menaces, recklessly engaging in serious harm, making a threat to kill and assault with a weapon. There were also drug offences, some dishonesty offences and several driving offences, as well as breaches of firearms legislation. He had been sentenced to 20 months’ imprisonment with a non-parole period of 18 months on the assault with a weapon charge. The judge highlighted the applicant’s propensity to violence as a reason for giving weight to specific deterrence and protection of the community as sentencing considerations.[21] Later he said that these factors needed to be given ‘some real weight’.[22] The judge affirmed that he could only adopt a ‘guarded’ approach to the applicant’s prospects of rehabilitation.[23] Earlier the judge had used the phrase ‘very guarded’ in this context.[24]
[20]Sentencing Remarks [61], [73].
[21]Ibid [63].
[22]Ibid [91].
[23]Ibid.
[24]Ibid [73].
The judge described Wijeratne’s prior convictions as ‘concerning’ and ‘not as bad as those of many others who commit similar offences’.[25] He had multiple convictions for theft and obtaining property by deception, three charges of being an excluded person in a casino, a conviction for attempting to obtain property by deception and other convictions for wilfully damaging property, possessing counterfeit money, and many traffic offences. He had not previously been sentenced to imprisonment. The judge considered that specific deterrence and protection of the community needed to be ‘given some real weight’.[26] He said that he could only adopt a ‘guarded’ approach to Wijeratne’s prospects of rehabilitation given his gambling history and history of illicit drug abuse.[27]
[25]Ibid [68], [77].
[26]Ibid [94].
[27]Ibid.
In our opinion, despite the similarity of the language used to summarise the prospects of rehabilitation and the need for specific deterrence and protection of the community in each case (‘guarded’, ‘real weight’), the underlying reasons for those conclusions were different and it is not to be supposed that the judge thought the factors applied identically. The language of the judge, as is inevitable, was in general terms, apt to describe a range of weightings, not an exact level or figure.
In our view, it was reasonably open to the judge to regard the applicant’s history of violence as calling for greater specific deterrence and protection of the community in connection with his offending by way of kidnapping than in the case of Wijeratne.
When one also factors in that Wijeratne had spent more than 15 months in immigration detention, which the judge took into account in a general way, the conclusion is inevitable that the sentencing differential of 3 months was reasonably open. We do not accept the applicant’s submission that it is not possible to know whether this matter affected the kidnapping sentence specifically. It was reasonably open for it to have done so.
For these reasons, leave to appeal must be refused.
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