Rouge v The Queen
[2013] VSCA 160
•25 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0183
| STACEY PATRICK ROUGE |
| Appellant |
| V |
| THE QUEEN |
| Respondent |
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| JUDGES | REDLICH, WEINBERG AND COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 March 2013 |
| DATE OF JUDGMENT | 25 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 160 |
| JUDGMENT APPEALED FROM | DPP v Rouge (Unreported, County Court of Victoria, Judge Gamble, 24-25 July 2012) |
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CRIMINAL LAW — Appeal against sentence — Appellant robbed prostitute whose services he had engaged of $470 — Sentenced in July 2012 to three years’ imprisonment with non-parole period of 17 months in respect of robbery — Sentence ordered to be served cumulatively upon sentence of 13 months’ imprisonment with non-parole period of seven months imposed in April 2012 in respect of charges of recklessly causing serious injury and careless driving — Sentencing judge stated that his intention was that appellant serve total of four years and one month’s imprisonment with non-parole period of 25 months (commencing upon appellant’s initial remand in November 2011) in respect of all matters dealt with in April and July 2012 — Whether sentencing judge erred in ordering cumulation — Whether sentencing judge, by making orders for cumulation, impermissibly revisited July 2012 sentence — Consideration of valid approaches to application of totality — Appeal dismissed — Azzopardi & Ors v The Queen [2011] VSCA 372 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For The Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For The Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor For Public Prosecutions |
REDLICH JA
WEINBERG JA
COGHLAN JA
Introduction
After pleading guilty to one charge of robbery[1] the appellant was sentenced, in the County Court at Melbourne, to three years’ imprisonment with a non-parole period of 17 months. The judge ordered that this sentence be cumulative upon a sentence that the appellant was already serving.[2]
[1]Contrary to Crimes Act 1958 s 75.
[2]It was declared, pursuant to s 6AAA of the Sentencing Act 1991, that, but for his plea of guilty, the appellant would have been sentenced to four years’ imprisonment with a non-parole period of two years, cumulative upon the sentence currently being served.
By leave granted on 23 November 2012 by Tate JA, the appellant challenges his sentence on a single ground:
Ground 1 - The learned sentencing judge made an order for cumulation resulting in the total effective head sentence and non-parole period offending the totality principle.
Background
The appellant’s offending behaviour occurred in St Kilda in the early hours of 8 October 2010. The appellant had sought to procure the services of the complainant, who was working as a prostitute. At approximately 12:15am, the appellant and the complainant made a verbal agreement that she would perform sexual services for an hour for which the appellant would pay $200. He had previously been a client of the complainant’s and they were familiar to the point that each had the other’s mobile number.[3]
[3]DPP v Rouge (Unreported, County Court of Victoria, Judge Gamble, 24-25 July 2012) (‘Sentencing remarks’), [3].
The complainant entered the appellant’s vehicle and was paid $100 of the total fee. In the presence of the appellant, the complainant placed this money into her shoe along with $270 already in her possession.[4] The appellant drove the complainant to her house where he paid her the other $100.[5] The complainant then provided sexual services to the appellant.[6] At this point, the appellant became upset because the complainant would not kiss him and she required him to use a condom.[7] Eventually, the complainant completed her sexual services and, in the presence of the appellant, placed the $270 back into her shoe and the $200 into her bra. The appellant then drove the complainant back to St Kilda.[8]
[4]Sentencing remarks, [4].
[5]Ibid [4].
[6]Ibid [5].
[7]Ibid [5].
[8]Ibid [6].
Upon their arrival at Princes Street, St Kilda, the appellant demanded that the complainant return the $200 he had paid her. He threatened to hit her, saying that he would ‘smash [her] head in’. She claimed to have left the money at home, but the appellant maintained that she had it on her person. After making a further demand for the money, which was refused, he took the money from her bra.[9]
[9]Plea transcript, 7.
The appellant then demanded the other $270 he had previously seen the complainant place into her shoe. He struck her in the face with a backhand slap. The complainant asked him to return the $200 as it was for her son. Despite her resistance and her screaming for help, the appellant forcibly removed her shoe and stole the remaining $270. The appellant prevented her from calling the emergency services on her mobile phone by closing the cover of her phone. He dragged her from his car and drove away.[10]
[10]Ibid.
Sentencing factors
The judge accepted that the appellant had entered an early plea of guilty, was remorseful and had reasonably good prospects of rehabilitation.[11] He noted that the appellant had had a difficult upbringing, but had nonetheless found gainful employment.[12] The judge also observed that general deterrence and denunciation of the appellant’s conduct were important in the circumstances.[13] As the appellant was already serving a sentence, the judge gave particular consideration to the totality principle.[14]
[11]Sentencing remarks, [37]-[40].
[12]Ibid [22]-[24].
[13]Ibid [41].
[14]Ibid [43].
The setting of the non-parole period
The appellant had been sentenced at the Latrobe Valley Magistrates’ Court on 26 April 2012 on a charge of recklessly causing serious injury and a charge of unlicensed driving. On that occasion, he was given a total effective sentence of 13 months with a non-parole period of 7 months (‘the earlier sentence’).[15] His pre-sentence detention was calculated at 153 days. He became eligible for parole with respect to this sentence on or about 26 June 2012.[16] He was thus eligible for parole at the time he was sentenced for the robbery, on 25 July 2012.
[15]Ibid [26].
[16]Appellant’s Written Case, 4 [12].
The judge stated in the course of his sentencing remarks that a non-parole period of 12 months from the date of sentencing would be fixed.[17] His Honour said that the sentence was to be served cumulatively upon the earlier sentence. He added that the global sentence for all three offences was to be four years and one month’s imprisonment;[18] that the effect of the cumulative sentence would be to render the appellant eligible for release on parole after having served a period of 25 months in custody;[19] and that it was his expectation that the 153 days spent on remand for the earlier sentence would be deducted as pre-sentence detention.
[17]To quote from the sentencing remarks, his Honour said that the ‘earliest possible date for release on parole is 12 months from today’s date’: Sentencing remarks, [44].
[18]Ibid [45].
[19]Ibid [45].
These statements gave rise to some confusion immediately following their pronouncement.
Counsel submitted that there was an inconsistency between the judge’s statement that the earliest date of release would be 12 months from the date of sentence, and his statement that the effect of cumulation was that the appellant would have to serve 25 months before becoming eligible for parole.[20] The judge clarified this:[21]
[Y]our client would need to serve the remainder of the sentence that the magistrate imposed and … he, having served that period, would then commence to, in effect, serve the sentence that I have imposed, and after 12 months, would be considered to be eligible for release on parole …
to which counsel responded that:[22]
… the non-parole period set by the magistrate was seven months … and that’s been served or been completed. So the only non-parole period now is the 12 months.
[20]Ibid [60].
[21]Ibid [61].
[22]Ibid [62]-[64].
The judge explained that he had meant that the effect of cumulation was to require the non-parole period to begin to run after the sentence for the other offences had been served, and reiterated that it was his intention that the effective non-parole period would be 25 months in total.[23] After further discussion, he clarified that he assumed the 25 month non-parole period would in effect begin running from 153 days prior to the appellant’s earlier sentence, being the period of pre-sentence detention before the earlier sentence.[24] This was said to create an effective end to the non-parole period of January 2014.[25] In response to counsel’s submission that he could simply make an order that the non-parole period would expire 12 months from the date the appellant was sentenced for the robbery, the judge noted that this would only require the appellant to serve 19 months without parole in respect of both sets of charges, and that he regarded this as an inadequate non-parole period.[26]
[23]Ibid [77].
[24]Ibid [87], [162].
[25]Ibid [211]-[214].
[26]Ibid [193]-[194].
Following further submissions, the judge accepted that he could not simply add the non-parole period fixed for the robbery to the head sentence imposed for the earlier sentence. Counsel for both parties proposed that, if it were the judge’s intention that a total non-parole period of 25 months be served, it would be better to impose a longer non-parole period for the robbery.[27] The appellant’s counsel later submitted that the newly proposed extended non-parole period was too much, considering the appellant’s prospects of rehabilitation and relative youth.[28] He argued that the proposed non-parole period of 25 months would be ‘very high’.[29] The Crown submitted that, should the judge desire the appellant to be in custody for a minimum of 25 months for all three offences, it would be necessary to impose a non-parole period of 17 months for the robbery.[30]
[27]Ibid [197], [243].
[28]Ibid [288].
[29]Ibid [302].
[30]Ibid [355].
After standing the matter over until the following day, 25 July 2012, his Honour clarified his position:
Some confusion … arose due to the fact that, after I had announced the sentence in respect of the robbery charge, I said this: “So, your earliest possible date for release on parole is 12 months from today’s date”. That was an error on my part, as it was never my intention to impose a sentence that would have had the practical effect of enabling Mr Rouge to be considered for release on parole after having served a period of approximately 20 months from the date that he was first remanded in custody for the matters for which he was sentenced in the Latrobe Valley Magistrates’ Court, namely 25 November 2011.[31]
[31]Ibid [365].
The final sentence imposed by the judge for the robbery — three years’ imprisonment with a non-parole period of 17 months — reflected his Honour’s intention that the sentence imposed for the appellant’s total criminality was to be four years and one month’s imprisonment with a non-parole period of 25 months.
The appellant submitted before this Court that the order for cumulation, and the non-parole period of 17 months, breached the principle of totality. He argued that the appellant had effectively been re-sentenced for the earlier offences, and had completely lost the benefit of the non-parole period given as part of that sentence. He acknowledged that the head sentence of three years was not manifestly excessive, but submitted that it could not be said to have been obviously moderated.[32]
[32]Appellant’s Written Case, 7 [23].
The appellant submitted that the judge, having found that ‘a sentence of 3 years [was] appropriate for the robbery charge’,[33] had then erred by merely adding that three year sentence to the existing sentence. The appellant argued that the appropriate approach in this instance would have been to impose a total effective sentence and non-parole period that were appropriate for the robbery, and then to apply an appropriate degree of concurrency and cumulation with respect to the earlier sentence.[34] He argued that, given the mitigating factors in this instance, the judge was required to impose a lesser non-parole period, which, he submitted, should not have exceeded 12 months. He submitted that the 12 month period ‘initially announced’ would adequately reflect the operation of the principle of totality. [35]
[33]Sentencing remarks, [373].
[34]Appellant’s Written Case, 6 [21].
[35]Ibid 8 [26].
Counsel for the appellant expanded on his written case in oral argument before this Court. He submitted that the judge committed an error of principle because his Honour’s approach to the question of totality was conceptually flawed. It was put that while his Honour was obliged to consider the overall criminality of the offender in adjusting the sentence pursuant to the principles of totality, his Honour erred by revisiting the appellant’s earlier sentence and freshly assessing the appellant’s criminality in respect of those offences.
In response, the Crown submitted that the judge complied with the principle of totality by moderating the sentence, and that he adopted the only course of action available to him in the circumstances in order to impose a global sentence he regarded as appropriate.[36] The Crown submitted that notwithstanding the confusion during the plea as to how the earlier sentence would be incorporated into the current sentence, it was clear that the judge’s ultimate aim was to impose a single sentence for all of the offences of four years and one month’s imprisonment with a non-parole period of 25 months. The Crown submitted that this sentence had due regard to the principle of totality and was plainly within the sentencing range.
[36]Respondent’s Written Case, 5-6 [12.4]-[12.7].
Totality
The totality principle imposes a final duty on the sentencing judge to ensure that the totality of consecutive sentences is not excessive. In Azzopardi & Ors v The Queen,[37] Redlich JA explained the principle of totality in these terms:
Kirby J in Postiglione v The Queen observed that after the sentencing judge has arrived at what is considered to be an appropriate sentence, he or she must consider whether the resulting sentence needs further adjustment if it ‘offends the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not ‘just and appropriate.’ The adjustment involves subtle considerations which Kirby J recognised ‘may result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed.’
The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v The Queen the sentence should be no longer ‘than is necessary to meet the various purposes of criminal punishment.’ Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, ‘that it is enough’. Wickham J also opined that ‘[m]ore than enough is wrong because the excess is not only purposeless but might be harmful.’ Anderson J expressed similar views in Herbert v R.
One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v The Queen, that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[38]
[37][2011] VSCA 372 (‘Azzopardi’).
[38]Ibid [60]-[64] (citations omitted).
In Mill v The Queen,[39] the High Court (Wilson, Deane, Dawson, Toohey, Gaudron JJ) stated that where the totality principle falls to be applied in relation to sentencing:
[A]n appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[40]
[39](1988) 166 CLR 59 (‘Mill’).
[40]Ibid 63.
As to this approach, Redlich JA further observed in Azzopardi:
In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practical when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.
…..
All of the individual sentences including the largest, usually the base sentence, must reflect all relevant sentencing objectives where the preferred method of adjustment of sentences is followed. Punitive sentencing objectives such as denunciation, deterrence, retribution and community protection as well as matters in mitigation will then ordinarily be satisfied by relatively modest orders for cumulation on the base sentence. An aggregate sentence must be arrived at that is sufficient punishment, but no more than is necessary to satisfy those sentencing objectives. It will then be proportionate to the offender’s overall criminality. If the aggregate sentence is not a just and appropriate measure of the total criminality, the sentencing judge will have assigned the incorrect weight to the various sentencing objectives in fixing the individual sentences or in the method of aggregation of the sentences or both.[41]
[41]Azzopardi [2011] VSCA 372, [65]-[66]
With regard to the appellant’s argument that the judge ought to have adopted the ‘preferred approach’ to totality by imposing an appropriate total effective sentence and non-parole period, and then moderating the sentences by fixing a fair degree of concurrency on the earlier sentence, his Honour’s process of reasoning is set out below:
I am mindful that totality considerations assume particular significance in your case, since you have been undergoing sentence on other matters as I have already explained. I must ensure that the sentence that I impose for this offence of robbery, when viewed together with the earlier sentence that you received at the Latrobe Valley Magistrates’ Court on 26 April this year, represents a just punishment that is commensurate with the totality of your offending. I have very much borne those matters in mind when determining the appropriate sentence in this case. It is less than it otherwise would have been on account of those considerations.
I have sought to balance and weigh the relevant sentencing considerations in your case as best I can. On the single charge of robbery, you are hereby sentenced to a term of 3 years’ imprisonment for which I fix a non-parole period of 12 months before which you are to be eligible for release on parole. I order that the sentence that I have imposed today is to be served cumulatively with the sentence that you received on 26 April 2012. So, your earliest possible date for release on parole is 12 months from today’s date.
By imposing the sentence that I have for this offence of robbery, it has been my intention that you receive, in effect, a total sentence for all three offences (Recklessly Causing Serious Injury, Unlicensed Driving and Robbery) of 4 years and one month, and be first eligible for release on parole after having served a period of 25 months in custody.[42]
[42]Sentencing remarks, [43]-[45].
While his Honour’s approach was not the method preferred by the High Court in Mill, that of itself does not suggest error. The judge plainly gave appropriate consideration to totality in sentencing the appellant. This is reflected in the head sentence, which his Honour stated would have been higher, were it not for the principle of totality. The due regard his Honour gave to the principle of totality is most clearly evident in the non-parole period his Honour imposed. The non-parole period of 17 months for the robbery represented less than half of the total effective sentence for that offence, and the global non-parole period of 25 months represented just over 50 per cent of the head sentence, which shows that his Honour gave significant weight to the appellant’s prospects for rehabilitation. No error is shown in this approach.
The appellant further contended that the judge’s remark that ‘a sentence of 3 years is appropriate for the robbery charge’ was evidence that his Honour had failed either to make orders for concurrency, or to moderate the head sentence. However, his Honour’s remark cannot be viewed in isolation. He made that remark in response to further submissions made on behalf of the appellant after the confusion which immediately followed the pronouncement of his sentence on 24 July 2012. His Honour was merely stating that having heard further submissions, he remained of the view that a sentence of three years was appropriate in all the circumstances.
There is nothing in the judge’s sentencing remarks to support the appellant’s contention that his Honour improperly ‘revisited’ the earlier sentence. The judge had regard to that sentence but in a way that was entirely consistent with the correct approach to the totality principle, as outlined by Redlich JA in Azzopardi.
His Honour thus rightly considered the circumstances of the earlier offences, in so far as they bore upon the appellant’s prospects for rehabilitation, the need for general deterrence, and the total criminality for which the appellant fell to be sentenced. But there is nothing in the reasons to suggest that the judge reassessed the appellant’s degree of criminality for the earlier offences, or sought to adjust the sentence imposed for those offences. His Honour was obliged to have regard to the totality of the offender’s criminality, and to impose an appropriate non-parole period. Given the seriousness of the robbery, it was inevitable that the appellant would be required to serve a significant further period without eligibility for parole. No error of principle has been demonstrated.
Nor has any specific error been shown. The sentence of three years’ imprisonment cannot be said to be excessive. This was a decidedly mean offence, in which the appellant took advantage of a vulnerable victim, used violence and the threat of further violence to steal from her, and then forcibly dragged her from his car. In truth, the sentence imposed by the judge was well within range.
The appeal must be dismissed.
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