Said v The Queen
[2020] VSCA 178
•1 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0043
| OMID SAID | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2020 |
| DATE OF JUDGMENT: | 1 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 178 |
| JUDGMENT APPERAD FROM: | [2018] VCC 2117 (Judge Higham) |
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CRIMINAL LAW – Appeal – Conviction – Trafficking in a drug of dependence – Arson – Conspiracy to commit arson – Attempt to possess firearm while prohibited person – Common assault – Handling stolen goods – Plea of guilty to attempt to possess firearm said to be negated because, upon admitted facts, as set out in prosecution summary, applicant could not, in law, be guilty of offence – Acceptance during plea hearing as to accuracy and adequacy of summary with regard to charge of attempt to possess firearm – Plea of guilty to be given its ordinary effect – Leave to appeal against conviction refused.
CRIMINAL LAW – Appeal – Sentence – Total effective term of 14 years’ imprisonment with non-parole period of 10 years – Sentence of 7 years and 3 months on charge of arson – Sentence conceded to be stern – Whether sentence manifestly excessive – Grave offending – Warring motorcycle gangs – Sentence within range – Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr T Kassimatis QC with Mr C K Wareham | Chester Metcalfe & Co |
| For the Respondent: | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
EMERTON JA
WEINBERG JA:
On 4 October 2018, the applicant pleaded guilty in the County Court to arson, common assault, conspiracy to commit arson, handling stolen goods, trafficking in a commercial quantity of a drug of dependence, and attempting to possess a firearm whilst a prohibited person. He also pleaded guilty to a number of related summary offences. These included committing an indictable offence whilst on bail, contravening a conduct condition of bail, unlicensed driving, and contravening a community correction order.
On 12 December 2018, the applicant was sentenced as follows:
Charge No.
Offence
Maximum
Sentence
Cumulation
1. Arson
[s 197(6) — Crimes Act 1958]15 years 7 years and 3 months 3 years 2. Common assault
[Common law, s 320 — Crimes Act 1958]5 years 1 year 6 months 3. Conspiracy to commit arson
[ss 197(6), 321(1), and 321C(1)(c) — Crimes Act 1958]15 years 4 years and 6 months 2 years 4. Handling stolen goods
[s 88 — Crimes Act 1958]15 years 1 year — 5. Trafficking in drug of dependence — commercial quantity
[s 71AA — Drugs, Poisons and Controlled Substances Act 1981]25 years 8 years Base 6. Attempt to possess firearm whilst prohibited person [s 5(1) — Firearms Act 1996, s 321M — Crimes Act 1958] 10 years 1 year 6 months Related summary offences
— Commit indictable offence whilst on bail
[s 30B — Bail Act 1997]3 months 1 month — — Contravene a conduct condition of bail
[s 30A(1) — Bail Act 1997]3 months 1 month — — Driving while unlicensed [s 18(1)(a) — Road Safety Act 1986] 3 months 1 month — — Contravening a community correction order
[s 83AD — Sentencing Act 1991]3 months 1 month — Total effective sentence: 14 years’ imprisonment Non-parole period: 10 years Pre-sentence detention declared: 685 days Section 6AAA statement: 19 years and 6 months with a non‑parole period of 14 years and 9 months Ancillary orders: Licence cancelled, applicant disqualified from driving for 2 years, community correction order confirmed, disposal order.
By notices of appeal dated 5 March 2019, the applicant sought leave to appeal against both conviction and sentence. He relied upon a single ground of appeal with regard to conviction, which was in the following terms:
The [a]pplicant’s conviction and sentence on charge 6 betrays a fundamental irregularity in that, on the admitted facts purporting to make out the offence charged, the offence is not made out.
The applicant also relied upon an identically expressed ground in relation to his application for leave to appeal against sentence. His other ground of appeal, in relation to sentence, was one of manifest excess. He complained, specifically, about the sentence imposed on charge 1, but also the total effective sentence, and the non-parole period.
For the reasons that follow, we would refuse leave to appeal against both conviction and sentence.
Circumstances surrounding the commission of the offences
In October 2016, members of the Echo Taskforce commenced an investigation into the Comanchero outlaw motorcycle gang. They also began investigating an associated gang, the Last Kings. The investigation focused on the head of the Last Kings, ‘RA’, who, we were told, still has an appeal pending before this Court. RA controlled and directed a drug dealing syndicate that involved large commercial quantities of drugs. Evidence obtained also implicated RA and the syndicate in a number of assaults, arsons, and aggravated burglaries.
The applicant was a member of the Last Kings, and a close associate of RA. He was also a leader of his own group, which comprised Amanda Cross, Corey Hayes, Matthew Leftley, and John Vave, all of whom assisted the applicant with his various criminal activities. These included the commercial trafficking of drugs of dependence, debt recovery and enforcement, and sending threatening messages to rival gangs.
On 21 October 2016, Victorian members of the Rebels outlaw motorcycle gang travelled to Canberra for an annual motorcycle run. The clubhouse of the south-east chapter of that gang, located in Dandenong South, was, therefore, temporarily unoccupied. RA had asked the applicant to burn it down, a task which he seemingly readily accepted.
The applicant and several members of his group drove to the Dandenong South clubhouse. He directed the group to pour fuel on the clubhouse and set it alight. When it seemed that the building was not burning as speedily as the applicant wished, he blamed the group for not having done a good job. Hayes, either in fear of, or out of a desire to impress the applicant, drove a stolen vehicle into the building and set it alight. Hayes, the applicant, and the rest of the group then fled the scene.
The clubhouse was completely destroyed, together with five Harley Davidson motorcycles, and a number of other valuable items that were inside the premises. The total value of the damaged items, and the clubhouse, was in the order of $392,000 (giving rise to charge 1 — arson).
Some time after burning down the clubhouse, the applicant became suspicious of Leftley’s loyalty. On 4 November 2016, the applicant forced Leftley to get into a car with himself and Hayes. The applicant demanded to know where Leftley lived. He produced a handgun to compel Leftley’s compliance, placing him in fear of his safety (giving rise to charge 2 — common assault).
On 8 November 2016, telephone intercepts captured a conversation between the applicant and RA. The pair discussed, and agreed to, burning down the Kittens Gentlemen’s Club, in South Melbourne. The owners of that club were said to be RA’s rivals.
In later conversations with RA, the applicant discussed the steps he had taken in furtherance of the agreement. These included describing the layout of the building, and how he had attempted to light the fire, spread the fuel, and stoke the fire (giving rise to charge 3 — conspiracy to commit arson).
One of the vehicles that the applicant used in connection with charge 3 was an Isuzu ute. That vehicle was stolen by an unknown person from a car dealership in Ringwood on 30 October 2016. On 7 November 2016, the applicant sent a text message to Vave, saying that he was coming to collect the Isuzu ute. On 10 November 2016, police operatives observed the Isuzu ute parked at Richmond Plaza. Later that day, they observed the applicant driving the vehicle in the area of Church Street, Richmond (giving rise to charge 4 — handling stolen goods).
Between 9 November 2016 and 21 January 2017, the applicant trafficked a total of 774.3 grams of methamphetamine. He and his partner, Svetlana Sismanovic, were active participants in RA’s trafficking enterprise. The pair assisted in transporting and selling various drugs of dependence, collecting and transporting cash, recovering debts, and dealing with assets in order to generate cash flow. Further, the pair were trafficking in their own right, and worked together to sell their own drugs over the charged period. This involved purchasing wholesale quantities of drugs and on-selling them, in wholesale quantities, as part of his and Sismanovic’s own enterprise. The trafficking transactions over the charged period amounted to a sum of $93,950 (giving rise to charge 5 — trafficking in a drug of dependence).
On 26 January 2017, shortly after midday, telephone intercepts captured conversations between the applicant and an associate, Asotasi Tia Tia. Tia Tia told the applicant that he wanted to obtain a firearm, which would be provided to another person. Tia Tia said that that person ‘wants that guy gone’. The applicant asked ‘does he want to hurt him?’, to which, Tia Tia replied ‘no, he wants him gone’. The applicant went on to say that he would assist Tia Tia, but that he had ‘one rule’. He wanted reassurance that the firearm would be used for a ‘legit reason’.[1] The pair discussed meeting at the applicant’s house, in Rosanna, after Tia Tia had finished work, in order for the applicant to supply him with the firearm.
[1]In the course of the plea, his Honour said, sardonically, ‘I think we can take it that that doesn’t mean a purpose in accordance to law but maybe a purpose in according with the law as written by outlaw gangs…’
However, at about 7:22 pm, the applicant and Sismanovic drove to Cranbourne,[2] where Tia Tia was said to live. At 7:38 pm, the applicant made a call to Tia Tia, which was unanswered. At 8:01 pm, he sent a text message to Tia Tia, which said ‘Call me asap’. The prosecution contended that these steps on the part of the applicant to arrange for Tia Tia to be provided with the weapon, as earlier discussed, were in furtherance of the applicant’s agreement to do so. This conduct, together with the earlier call made at midday, was said to give rise to charge 6 — attempting to possess a firearm whilst a prohibited person.
[2]Which is about 55 kilometres, or an hour’s drive, from Rosanna.
At 7:45 pm that evening, police executed a Firearms Act 1996 search warrant at the applicant’s home in Rosanna. No firearms were located. However, the police found 270.9 grams of methamphetamine. Later that night the applicant and Sismanovic were both arrested. Police located a further 2 ounces of methamphetamine in the Isuzu ute.
The plea hearing
After the applicant was arraigned, his counsel on the plea said the following:
The opening in this matter is very long. I am content for [the prosecutor] to simply tender that. I understand the court’s familiar with it and has read it before
…
My client’s also familiar with the contents of it and admits the contents of it.
After an exchange between the judge and the prosecutor, defence counsel again said:
Can I say, your Honour, that my client is thoroughly familiar with the contents of the opening. I’ve been through them with him at length over many times, your Honour.
The judge flagged with the prosecutor that he required assistance with regard to the plea to charge 6. The following exchange ensued:
HIS HONOUR: Now, Tia Tia, and I hope I’ve pronounced his family name correctly, or maybe it’s Mr Asotasi, in any event it is the caller who wants … the gun … So Said is pleading — Mr Said, I beg his pardon, he’s pleading guilty to what? Attempting to possess, but - - -
[PROSECUTOR]: Correct.
…
HIS HONOUR: So the prosecution case is that Mr Said lent himself to — is it Asotasi or Tia Tia?
[PROSECUTOR]: Tia Tia. Tia Tia.
HIS HONOUR: Tia Tia, thank you. All right, so he lent himself to — how do we get to an attempt? I know that charges are a matter for the prosecution.
[PROSECUTOR]: They are. We get to an attempt because it was not, as we understand it, effected.
HIS HONOUR: Isn’t there an issue of proximity in intent? I don’t wish to be a spanner in the works or a cuckoo in the nest or whatever.
[PROSECUTOR]: Your Honour, it’s not - - -
HIS HONOUR: If you tell me how it — all I need is for you very clearly to tell me how it is put and I’ll stay within the tramlines.
[PROSECUTOR]: Well, that’s probably a matter I do want to [discuss] with my learned friend.
HIS HONOUR: All right.
[PROSECUTOR]: I should say - - -
HIS HONOUR: I hope this is helpful.
[PROSECUTOR]: Ridiculously so. It’s certainly a matter my learned friend spoke about at some length ago.
HIS HONOUR: Yes.
[PROSECUTOR]: I hear that. That’s a flagged issue. I will take that under advisement. Yes, Your Honour.
When his Honour raised this same point with defence counsel, he was simply told, somewhat unhelpfully it must be said, that he understood that charge 6 was brought as ‘an attempt on the basis of complicity’. In other words, the assumption on his part seems to have been that Tia Tia was the principal offender in the attempt, and the applicant’s liability was derivative, or perhaps stemmed from his having been a party to an agreement to supply the weapon, therefore as what used to be described as ‘acting in concert’.
Shortly afterwards, the Summary of Prosecution Opening was tendered. It was read into the transcript as an agreed statement of facts. Both prosecution and defence counsel agreed to that course.
Once again, defence counsel said:
I can assuage my friend’s fears by saying that my client is fully aware of all the details of [the prosecution summary], and if he wants a copy of it signed and dated, I will get him to do that.
Somewhat ironically, in the light of the events that have since transpired, the prosecutor said:
… if there is to be some other review of this matter, this will not be one of those points that there was now a quibble with [the] statement, any comment or particular raised in that summary of prosecution opening, your Honour.
Later in the course of the plea, defence counsel reiterated:
Turning to the offending itself, your Honour, I make the admission in my submissions that the offending is comprehensively and accurately set out in the prosecution opening.
Towards the conclusion of defence counsel’s submissions on the plea, the judge asked him whether it was accepted that the offending giving rise to charge 1 was a ‘serious example’ of arson. Not surprisingly, counsel agreed with that characterisation.
The conviction application — submissions
Applicant’s submissions
Both in his written case, and in oral submissions before this Court, senior counsel for the applicant submitted that the facts outlined in the summary of prosecution opening fell short of making out an attempt, on the part of the applicant, to possess a firearm. He contended that the applicant’s conduct was, at most, preparatory, and was not sufficiently proximate, at law, to give rise to an attempt to possess. Accordingly, the conviction on charge 6 could not stand.
In oral submissions before this Court, senior counsel referred, in support of his challenge to charge 6, to Meissner v The Queen,[3] where Dawson J said:[4]
The entry of a plea of guilty … nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.[5]
[3](1995) 184 CLR 132; [1995] HCA 41.
[4]Ibid 157.
[5]R v Forde [1923] 2 KB 400, 403; R v Murphy [1965] VR 187, 188; R v Chiron [1980] 1 NSWLR 218, 235; R v Liberti (1991) 55 A Crim R 120, 121–2; and R v Ferrer-Esis (1991) 55 A Crim R 231, 232‑3.
Senior counsel focused, in particular, upon the phrase ‘could not in law have been guilty of the offence’ in the passage set out above as the basis for his challenge to the applicant’s conviction on charge 6. He submitted that, notwithstanding the plea of guilty, there had been a substantial miscarriage of justice. This was because the plea of guilty could not be used to fill a clear gap in the prosecution summary, which, ought, on its own, to have set out facts which established each and every element of the charge brought. In that regard, he referred to R v Pauli,[6] a case to which we will shortly return.
[6](1991) 55 A Crim R 297 (‘Pauli’).
Senior counsel submitted that the summary of prosecution opening was required to have been sufficiently detailed, and complete, to have set out facts which, on their own, were sufficient to establish each and every element of the charges to which the applicant was pleading guilty. He submitted that although an opening may not need to be utterly exhaustive, it must, ‘at the least, set out the facts necessary to make out the offence.’
When questioned by the Court as to whether there was a difference between the requirements of a summary of prosecution opening for the purposes of a trial, and one merely prepared for a plea, senior counsel responded that, in the latter case, the opening ought, if anything, to be even more comprehensive. He did not elaborate upon that submission.
Respondent’s submissions
Senior counsel for the respondent submitted that, notwithstanding that had the matter gone to trial, the applicant may well have had an arguable defence to charge 6, his plea of guilty was an admission to each and every element of that charge. That, taken together with all the other evidence relating to the applicant’s conduct on 26 January 2017, was sufficient to establish his guilt of attempted possession of a firearm.
Senior counsel highlighted the fact that the applicant’s counsel on the plea had said, several times in the course of the plea, that his client was ‘thoroughly familiar’ with the matters set out in the summary. Further, counsel had confirmed that the plea of guilty meant that the applicant accepted the prosecution case in its entirety, as set out in the opening. In that regard, it was submitted that the applicant’s plea to charge 6 had been ‘considered’ and ‘purposeful’.
Finally, it was submitted that the applicant’s plea had been entered into freely and voluntarily, and with full knowledge of the implications of what he was doing. It was submitted that there had been no miscarriage of justice, still less a substantial miscarriage of justice. We were referred to R v Holden,[7] where Neave JA said:
Although a plea of guilty will be set aside if it was made in circumstances resulting in a miscarriage of justice, ‘there is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty’. The public policy argument in favour of this approach is particularly powerful, where, as a result of a negotiated plea, the offender has received the benefit of a directed acquittal on a more serious offence.[8]
[7][2009] VSCA 254.
[8]Ibid [69] (Buchanan JA agreeing at [1], Hansen AJA agreeing at [142]) (citation omitted).
It was noted that both defence counsel and the prosecutor had told the judge that the applicant’s plea of guilty on charge 6 was put on the basis of ‘complicity’. When the Court pressed senior counsel for the respondent as to whether there was any evidence that Tia Tia had been a prohibited person, he was unable to answer that question. He could not, therefore, justify the description of the applicant’s liability as being based upon ‘complicity’.
Nonetheless, senior counsel submitted that the various steps taken by the applicant, after the midday call, including the aborted call at 7:38 pm, and the text message sent at 8:01 pm, together with the applicant’s conduct in travelling a great distance out of his way, to Cranbourne, could all, inferentially, lead to the conclusion that what was done was in furtherance of the earlier concluded agreement to provide Tia Tia with a firearm. It was submitted that these steps, when combined with the applicant’s plea of guilty, were entirely sufficient to make out the elements of charge 6, without any reliance upon complicity at all.
The conviction application — consideration
The ground of appeal under consideration appears to presuppose that the summary of prosecution opening, which the applicant accepted as accurate on the plea, should now be read, and understood, as though it were almost a pleading of sorts. That is most definitely not the case.
In relation to a trial that is to proceed before a jury, s 182 of the Criminal Procedure Act 2009 relevantly provides as follows:
182 Summary of prosecution opening and notice of pre-trial admissions
(1)Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the accused and file in court—
(a)a summary of the prosecution opening; and
(b)a notice of pre-trial admissions.
(2) The summary of the prosecution opening must outline—
(a)the manner in which the prosecution will put the case against the accused; and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
By way of contrast, a prosecution opening upon a plea has been required, in the County Court, at least since 1 July 2017, when a Criminal Division Practice Note to that effect was promulgated.[9] That Practice Note, in addition to setting out a list of matters to be specifically addressed in an opening, merely requires that it set out ‘the factual circumstances of the offending’. It is, therefore, expressed in the most general of terms.
[9]County Court of Victoria, Practice Note PNCR 1-2015: Criminal Division, 12 July 2019, 7.6.
The contrast between the generality of the requirements of the Practice Note, and the greater specificity of the requirements contained within s 182 of the Criminal Procedure Act is telling.
Recently, in North (a pseudonym) v The Queen,[10] this Court had occasion to criticise a summary of prosecution opening, prepared for a trial, that was drafted in terms that were extraordinarily prolix. One version of that opening extended over some 300 pages. The Court observed that even given the language of s 182, and its requirement that the opening identify ‘the acts, facts, matters, and circumstances’ upon which the charge is based, it would be sufficient that it outline, in ‘general terms’, the prosecution case as it was expected to be developed through the witnesses called. The Court referred with approval to R v Haydon (No 7)[11] and the observations of Sulan J,[12] as to the rationale for a Crown opening in a trial before a jury.
[10][2020] VSCA 1 (‘North’).
[11][2005] SASC 21 (‘Haydon’).
[12]Ibid [38]–[41].
There is nothing in either North, or Haydon, which suggests that a summary of prosecution opening is required to set out, in detail, each and every fact alleged against the accused, or each and every inference which, it is suggested, should be drawn from any particular primary fact. Still less do those cases provide any support for the proposition that a summary of prosecution opening, prepared for the purpose of a plea, should meet any such requirement.
The point is that the plea of guilty itself goes a long way towards establishing that the offence alleged has been made out, fully and completely. No one knows better than the accused, and his or her legal advisers, whether the crime charged has been committed.
In the present case, the applicant, by his plea of guilty, acknowledged that his actions went beyond mere preparation for procuring a firearm and crossed over into the realm of attempt. He acknowledged, by that plea, that a combination of what he had said over the phone at midday and his attempts to contact Tia Tia again, at 7:38 pm, and 8:01 pm, coupled with his having driven a very great distance out of his way to Cranbourne (where Tia Tia happened to live) was sufficient, in conjunction with his intent to possess the firearm, to render him guilty of the offence, as charged.
The decision of the Court of Criminal Appeal in Pauli, upon which the applicant relied, is of no assistance. In that case, the accused pleaded guilty to some 20 charges of arson when, in fact, he only ever intended to acknowledge his guilt in relation to 13 of those charges. There was no evidence at all to support the contention that he committed the additional seven charges to which he pleaded guilty. The plea itself was based upon a mistake on his part, largely brought about by the fact that the prosecution adopted a ‘short form’ of arraignment whereby the charges were not read out in full, but only by number. The facts of that case are a far cry from the situation that now confronts this Court.[13]
[13]During the course of argument, several examples were raised of how a conviction might be quashed on appeal, notwithstanding the fact that there had been a plea of guilty at first instance. There included a guilty plea to a charge of sexual penetration of a child under 12, contrary to s 49A of the Crimes Act 1958, when it subsequently emerged that, at the time of the offending, the child, in fact, happened to be aged 12. Self-evidently, such a conviction could not stand.
For these reasons, leave to appeal against conviction should be refused.
Sentencing remarks
After setting out the background facts, the judge turned to the applicant’s personal circumstances. At the time of the offending, he was aged 30. He was born in war-torn Afghanistan and had left that country for India when aged only seven. In the five years following, he had become fluent in Sanskrit and Hindi. He and his family then relocated to Australia, settling in Frankston.
At first, the applicant had limited English skills. He was also bullied at school, particularly in the aftermath of the 11 September 2001 terrorist attack. Nonetheless, he finished Year 12 and subsequently completed a pre-apprenticeship certificate in motor mechanics. A short time later, he also completed a real estate agent’s certificate.
The applicant worked as an estate agent for some seven years, before setting up an agency of his own. That company was liquidated after a year, as his business partner had been stealing money from the business. This caused him a great deal of stress.
The applicant thereafter worked at his father’s panel beating shop until about 2011. In that year, he was attacked at work, which resulted in serious injuries. Following that assault, he was diagnosed with post-traumatic stress disorder and was prescribed antidepressants. Further, his relationship with his former partner also ended. It was at this point that he began to use alcohol, and subsequently became unemployed.
In about 2014, the applicant began using drugs. By 2015, he was regularly using methamphetamine, steroids, Xanax, and cocaine. It was in this context that he met RA, who initially supplied him with drugs. He quickly accumulated a debt to RA amounting to some $30,000 and began working for him to pay it off.
The judge then turned to the applicant’s criminal history, which his Honour found to be not of any great relevance. For the most part, his previous convictions involved driving offences, and some relatively minor offences of dishonesty.
With regard to the applicant’s time in custody, the judge observed that shortly after he was remanded, he was subjected to a serious assault, allegedly committed by members of the Comancheros. He had since been in protective custody. He was able, however, to undertake a 24 hour drug and alcohol program and other education programs. He was required to undertake urine analysis tests from February 2017 to August 2018. Those tests invariably came back negative.
During his time on remand, the applicant had re-embraced his Islamic faith. The judge observed that he had the ongoing support of his family, including, in particular, his mother and sister.
Further, the judge accepted that principle 5 of Verdins[14] had been enlivened. However, he qualified that conclusion somewhat, bearing in mind the caution with which a forensic psychiatrist, Dr Leon Turnbull, assessed the impact of the applicant’s post-traumatic stress disorder upon his experience of imprisonment.
[14]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’). Principle 5 stating that impaired mental functioning is relevant to sentencing in that ‘the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health’, 276 [32].
Turning to the submissions put by counsel, the judge accepted that general deterrence, specific deterrence, denunciation, and protection of the community were primary sentencing considerations. He also accepted that the applicant was
developing an insight into [his] offending and an insight to the pathways that have led to it. I accept that from the perspective of the faith that [he] now practice[s], [he was] ashamed of [his] offending.[15]
[15]DPP v Said [2018] VCC 2117, [35].
The judge characterised the applicant’s role in the offending as follows:
Your place in the criminal hierarchy of the Last Kings sat below [RA] but, [the prosecutor] submitted, only just below. You were, in effect, the chief operating officer of the Last Kings, answerable directly and only to [RA]. You were the director of the attack upon the Rebels clubhouse, you recruited the other members to carry out the attack and ensure the success of the venture, and you were charged with executing the agreement for the arson attack in South Melbourne. You are also capable of acting on your own initiative, as is seen by charge 6 and in your own trafficking enterprise.[16]
[16]Ibid [31].
With regard to the applicant’s prospects of rehabilitation, the judge said that they were ‘dependent upon [his] ability to remain drug free’[17], both in custody and when eventually released.
[17]Ibid [36].
Finally, turning to the objective gravity of the offending, particularly in relation to charge 5, the judge characterised the applicant’s actions in that regard, and more generally, as ‘a direct assault on the very fabric of our society.’[18] His Honour also concluded that the applicant’s offending was ‘truly lawless’[19] and had been ‘committed in furtherance of the criminal purpose of [his] criminal associates or in advancing [his] own standing within that criminal world.’[20]
[18]Ibid [39].
[19]Ibid [41].
[20]Ibid [40].
With regard to the charge of arson, the judge characterised the applicant’s role as that of an ‘organiser’[21] and ‘director’[22]. The arson itself was described as ‘deliberate, planned and pre-meditated.’[23] His Honour emphasised that arson ‘will always be viewed as a serious offence by the court’[24], but that it was particularly serious in this case. That was because it had been the product of an ongoing turf war between rival motorcycle gangs. The judge said that the offending giving rise to the conspiracy to commit arson (charge 3) was also a ‘serious example’ of that offence in that it demonstrated the applicant’s ‘abandonment of any moral sense that [he] may have once had.’[25]
[21]Ibid [42].
[22]Ibid [31], [43].
[23]Ibid [42].
[24]Ibid [43].
[25]Ibid [45].
The offending giving rise to charge 4 was said by the judge to demonstrate ‘a sense of entitlement’ that was ‘truly an affront to decent minded people and those who work hard and pay legitimately for the vehicles which they own.’[26]
[26]Ibid [44].
The judge said that the applicant’s trafficking of a commercial quantity of a drug of dependence was contributing towards an ‘evil trade’[27], and that general deterrence was a significant sentencing consideration.
[27]Ibid [47].
With regard to charge 6, the judge said that the applicant’s conduct was ‘truly chilling’ and another example ‘of how immersed [he was] in the criminal milieu without any moral compass.’[28]
[28]Ibid [46].
Finally, the judge said that the sentencing considerations of general and specific deterrence, denunciation, and protection of the community were of principal importance. His Honour then sentenced the applicant as set out above at [2].
The sentence application — submissions
Applicant’s submissions
With regard to the applicant’s first ground of appeal against sentence, senior counsel relied on the same submissions as he had advanced on the conviction application.
On the ground of manifest excess, which focused primarily upon the sentence imposed on charge 1, senior counsel submitted that his client had received the highest sentence imposed in this State, after a plea of guilty, for a single offence of arson. He submitted that such a sentence at least warranted close scrutiny by this Court.
In his written case, senior counsel referred to sentences imposed on other offenders for arson. In particular, he relied on R v Noonan,[29] where sentences of 8 years’ imprisonment on each of two charges of arson[30] were reduced by this Court to 6 years each. It was submitted that the offending in Noonan was an ‘especially grave example’ of arson as it had occurred within a context of family violence during the breakdown of a domestic relationship. It was noted that the offending in Noonan was said not to have been ‘among the most serious of arson offences not causing death.’[31]
[29][2007] VSCA 5 (‘Noonan’).
[30]In fact, in Noonan the offender was sentenced to terms of 8 years, and 7 years, respectively, on the two arson charges (see Noonan at [2] and [56]), notwithstanding the incorrect reference at [50] to both sentences being 8 years.
[31]Noonan, [55].
Further, it was noted that, unlike the applicant in the present case, the offender in Noonan had a relevant criminal history. It was acknowledged, of course, that the sentences imposed in Noonan should not be viewed as some form of precedent, though it was said that they were of some utility, as a relevant comparator.
During oral argument, senior counsel referred to Maddocks v The Queen,[32] where the applicant had been sentenced, on a single charge of arson, to a term of 6 years’ imprisonment with a non-parole period of 4 years. Leave to appeal against sentence was refused. It was noted that in Maddocks, the offending had occurred against the backdrop of a commercial relationship, during a high fire danger period. The applicant had also been serving a community correction order when he committed the offence.
[32][2020] VSCA 47 (‘Maddocks’).
Senior counsel also referred to a number of Sentencing Snapshots, for the offence of arson, prepared by the Sentencing Advisory Council. Those ‘snapshots’ indicated that three other offenders had received sentences of more than six years, but less than seven years. It was submitted that the offender in Noonan, and the three offenders noted in the snapshots, were the applicant’s closest ‘rivals’.
It was submitted that while the applicant’s offending had its own aggravating features, namely, the offence having been committed in the context of warring motorcycle gangs, it remained the fact that the clubhouse was not occupied at the time. Further, the applicant was able to call in aid a number of mitigating factors, including his plea of guilty (which had utilitarian value), remorse and genuine contrition, disadvantaged upbringing, post-traumatic stress disorder, progress on remand, and strong family support. It was submitted that these factors had been given too little weight.
It was submitted that in dealing with the task of sentencing the applicant for a number of offences that were, in their nature, very different, the judge had not given adequate weight to the principle of totality.
Finally, it was submitted that these considerations, taken together, led to the conclusion that the sentencing discretion had miscarried, at least in relation to charge 1. It was said that, as a consequence, the total effective sentence and the non-parole period were also excessive.
Respondent’s submissions
Senior counsel for the respondent accepted that as the sentence on charge 1 appeared to be something of a statistical outlier, it warranted close scrutiny by this Court. He contended, however, that while the sentence imposed on that charge could be regarded as stern, it was within range. The same could be said of the order for 3 years’ cumulation of the sentence on charge 1 upon the base sentence.
In that regard, senior counsel adopted the judge’s characterisation of the offending, with regard to charge 1, as ‘truly lawless’. He submitted that it was entirely open to his Honour to conclude that this was a serious example of arson. The applicant had organised the operation to burn down the clubhouse and had enlisted others to carry out that plan. It was offending that demonstrated planning, pre-meditation, and lacked consideration for the safety of persons or property in the vicinity. In that regard, it was emphasised that this was case that ‘cried out’ for general deterrence. Further, it was submitted that the judge had given appropriate weight to all of the factors in mitigation.
In response to the applicant’s complaint that he had received the highest sentence imposed in this State for a single offence of arson, the respondent referred to Davies v The Queen.[33] The applicant in that case had been sentenced (following a trial) in the County Court to terms of 7 years and 6 months, and 7 years and 9 months, on two charges of arson. Although those sentences were reduced on appeal to 6 years, and 7 years, respectively, this was not on the basis that they were, individually, excessive. Rather, it was part of a resentencing exercise, once error had been established.
[33][2019] VSCA 66.
Finally, senior counsel for the respondent submitted that the sentences imposed on the remaining charges were all within range, noting that none of those other sentences had been, in any way, the subject of challenge before this Court.
The sentence application — consideration
We accept that the sentence of 7 years and 3 months’ imprisonment on charge 1 was stern. It does not follow that it was wholly outside the range reasonably available to the judge.
This was very serious offending indeed. The context in which the burning down of the clubhouse took place, namely, as part of a conflict between two warring motorcycle gangs, cannot be ignored. The applicant’s role in this act of arson was such that, among those directly involved in the lighting of the fire, he bore, by far, the greatest responsibility for what occurred. This was planned and pre-meditated offending, carried out for the purpose of, at least, ‘sending a message’ of violence and intimidation towards gang enemies. As such, the applicant’s conduct was very much towards the higher end of culpability for the offence of arson including, in particular, arson committed in circumstances of this kind.
As the judge correctly observed, conduct of this kind warranted severe punishment. The sentence imposed had to meet the requirements of both general and specific deterrence, and had to be denounced in the strongest possible terms.
For these reasons, the applicant’s challenge to the sentence imposed on charge 1, as well as the total effective sentence, and the non-parole period, must be rejected. Leave to appeal against sentence must be refused.
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