Salisbury v The Queen

[2011] VSCA 366

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0477

DOMINIC JAY SALISBURY
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2011
DATE OF JUDGMENT:	17 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 366
JUDGMENT APPEALED FROM	DPP v Salisbury (Unreported, County Court of Victoria, Judge Hannan, 10 December 2010)

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CRIMINAL LAW – Sentence – Aggravated burglary, armed robbery and possessing a drug of dependence (cannabis) – Plea of guilty – Use of a weapon and disguise – Sentenced to imprisonment for a total effective period of 7 years with a non-parole period of 4 years and 10 months – Whether the sentencing judge erred by failing to have any, or any proper, regard to current sentencing practices – Whether the individual sentences, the orders for cumulation and the total effective sentence are manifestly excessive – Double punishment – Appeal allowed in part – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Galbally & O’Bryan
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Harper JA.

HARPER JA:

1. On the evening of 13 June 2010, Robert Wilson was expecting the visit of a friend.  There was a knock on his door.  He opened it.  But the sight which greeted him was not expected.  He saw three men.  At least two – or all three, according to him – were wearing balaclavas.  One carried a sawn-off shotgun, which was pointed at his face.  Another held a baseball bat.  The man with the gun swung Wilson around by the shoulders, so that each faced in the same direction.  Then the gunman’s arm came around Wilson’s neck, and the gunman’s fingers were thrust in his mouth and throat.  Any sound from him, other than a gurgle, became impossible.

1. One of the three intruders, but not the gunman, was the appellant.  None of them asked to be invited in.  They simply invited themselves.  On the orders of the gunman, they proceeded to secure the victim’s continued silence by winding duct tape tightly around his mouth.  He was then told to make a choice.  The two alternatives were stark.  The first was death.  The second was his assistance in the opening of a safe which he kept within the house.  He opted for the second.  As a further incentive for his co-operation, he was kicked and punched.  He could not see his assailant or assailants because he was attacked from behind. 

1. The safe was opened.  It did not contain much – only a jar of $2 coins, and some prescription medication.  But $1,500 was found in Wilson’s pockets, together with his driver’s licence and his credit cards.  In the meantime, the appellant was searching the house.  He succeeded in locating, in a bedroom, a computer and a further $8,500.

1. Once the victim had opened the safe, neither his capacity to see nor his capacity to move was of any benefit to the intruders.  So they wound a further batch of duct tape around his head, and hog-tied him.  He was thus rendered sightless and

immobile.  Against the prospect of his being released at some point in the future, however, his assailants informed him that if he went to the police then they would return ‘to finish him off’.  At this point, the intruders had been in Wilson’s premises for about 20 minutes.  They then left, with their loot.

1. Shortly afterwards, the car in which they were travelling was observed by the police.  It was being driven erratically.  The police intercepted it.  A search of the boot revealed the sawn-off firearm.  The appellant and one co-offender were arrested.  The third escaped.  Some two or three hours after the offending began, the police attended at the victim’s house, where they found him as he had been left: taped and tied, and no less distressed and traumatised than before.

1. On any view, this was a very serious example of two of the three crimes to which the appellant subsequently pleaded guilty: one charge of aggravated burglary, and one of armed robbery (the third plea was to a charge of possessing a drug of dependence – cannabis).  In a statement given to the police, the appellant admitted his presence in the Wilson home, and therefore his guilt as a burglar and armed robber, but minimised his offending on the basis that it was not his idea, and anyway Wilson was selling drugs to children, and needed to be taught a lesson.  Besides, the appellant (as he asserted to the police) was not wearing a balaclava (although he admitted to a partial disguise), did not engage in any assault on the victim, and attempted to reassure him.  He also claimed that, until shortly before the offending trio reached Wilson’s house, he knew nothing of the sawn-off firearm that one of his colleagues produced.

1. The appellant was sentenced on 10 December 2010.  On the charge of aggravated burglary, the maximum penalty for which is imprisonment for 25 years, he was sentenced to 5 years and 6 months’ imprisonment;  and on the armed robbery charge, which also carries a maximum penalty of 25 years’ imprisonment, to a further 5 years and 6 months, with 18 months of that sentence to be served cumulatively with the initial term of 5 ½ years.  He was fined $100 for possessing cannabis.  The total effective period of incarceration was therefore 7 years.  Her Honour fixed a period of 4 years and 10 months before the appellant was to be eligible for parole. 

1. Two grounds of appeal were proposed when an application for leave to appeal was initiated.  The first was that the sentencing judge erred in her assessment of the relevance of his statement for sentencing purposes.  According to the appellant, it evidenced his co-operation with the authorities; but her Honour did not give it the weight it deserved. 

1. The second proposed ground of appeal was that the individual sentences, and the orders for cumulation together with the resulting total effective sentence, were manifestly excessive.

1. The application for leave was heard by Ashley JA.  He refused leave to appeal on the first proposed ground, but allowed it on the second.  The matter came before this Court on that basis.  During the course of the argument on the hearing of the appeal, however, counsel for the appellant was given leave to add a new ground.  It is that, in imposing the sentences which she pronounced in this case, the sentencing judge erred by failing to have any, or any proper, regard to current sentencing practices. 

1. I turn first to the additional ground of appeal.  It arises out of a discussion between her Honour and counsel for the prosecution on the plea.  Counsel submitted that:

… in accordance with what the Court of Appeal has said in a number of recent cases … it appears that there is too much prominence being given to the notion of current sentencing practices;  and the Crown’s submission is today in relation to challenging that notion that it should not act to swamp or take more prominence than all of the other factors … namely gravity, the offender’s position, etc.[1]  

[1]Plea transcript 12-13.

1. This submission followed an earlier statement from the prosecutor that she ‘was going to simply point out that the Court of Appeal has in recent times repeatedly talked about the inadequacy of current sentencing practices for this category of offence [aggravated burglary and armed robbery].’[2]  Her Honour responded:

Well that may be the case but the submission that has been filed is premised on the fact that I will ignore effectively s 5(2)(b) … of the Sentencing Act, which makes [it] mandatory that I have regard to … current sentencing practices.  It doesn’t mean that I am bound to have some arithmetical calculation in relation to medians and means.  I will assess the case based on its facts and its seriousness.[3]

[2]Plea transcript 11-12.

[3]Ibid 12.

1. In response to this, the prosecutor said that she did not submit that the judge should ignore current sentencing practices.  Her Honour’s response was to note that it was mandatory that she take them into account. 

1. Were this discussion to stand alone, it would clearly be impossible successfully to argue that her Honour had no regard to current sentencing practices. This is especially so given that her Honour also said that she would have regard to all relevant matters, including all those to which s 5(2) of the Sentencing Act refers: namely, the matters to which, in sentencing an offender, the court must have regard.  The judge continued:

As I have said, it is not an over-arching provision but it [current sentencing practices] is one matter I will weigh in what is an exercise of intuitive synthesis, and I will take current sentencing practices into account and I don’t propose to depart from that.[4]

[4]Ibid 14-15.

1. The discussion, however, moved on from current sentencing practices to consideration of the appropriate sentencing range.  The following exchange then occurred:

PROSECUTOR:        Your Honour … I do have a range.  I have communicated it to my learned friend, and it is based on current sentencing practices and it is a total effective sentence range of five to seven years with a non-parole period of three to five years.

…

Does Your Honour want me to explain now the basis of that range because ---

…

--- I have a justification for [it].

HER HONOUR:        Yes, thank you.

PROSECUTOR:        In terms of the facts of this case it takes into account the early plea of guilty, the limited priors (with little relevance, the Crown concedes), it takes into account the seriousness of the offending, and importantly it takes into account current sentencing practices as per s.5, Your Honour.

HER HONOUR:        When you say ‘it takes into account’ … I do not want the Director to be confused and say, ‘Well, I’m only submitting this because I think your Honour is going to adopt a particular approach to sentencing’.  That would be dangerous.  I will sentence on the basis of this matter, as I have constantly indicated.  I am aware of the maximum penalty, but I propose to have regard to all s.5 factors as I am required to do.  So the Director should not be confused or feel constrained and say, ‘Well, I only made this submission because I thought her Honour was going to have regard to current sentencing practices in a particular way’.  You should make whatever submissions you wish to.

PROSECUTOR:        Your Honour, that is incredibly helpful … .  I do not think the Director, in indicating the current range that I have given you, was guessing what Your Honour may do in this case;  but in the light of that very important indication, the Director’s range is constrained by current sentencing practices and I therefore would provide the range the Director believes is appropriate in this case.

HER HONOUR:        That is the only range I am interested in.

PROSECUTOR:        I understand, your Honour.

…

The range is therefore seven to ten years as a total effective sentence, your Honour, and a non-parole period of five to eight years …

HER HONOUR: What I am concerned about is that, as I keep going to s.5, what s.5(2)(b) provides is ‘must have regard to current sentencing practices’ and there seems to be a lot of submissions based upon somehow being constrained. Current sentencing practices are a relevant consideration that I must clearly have regard to pursuant to s.5(2)(b), but that does in no way obviate the need to have regard to sub-s.(2)(a) - the maximum penalty provided for the offence. … It is in effect in the list of matters that I must have regard to that are unweighted, they are not weighted as against each other. I am also required to have regard to the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence and the impact of the offence upon the victim, together with the personal circumstances of any victim of … [and] the remaining factors in s.5(2). So I guess I am concerned that it not be anticipated that ‘have regard to’ means ‘feel constrained by’; and what I mean by that is that if ‘constrained by’ is said to mean that I should look mathematically at this matter and look for means and averages, that would be [to be] constrained …in … an artificial way. I must have regard to current sentencing practices because it is a matter of fairness to the accused, he has decided to plead guilty, he has determined [to do so] after receiving advice in relation to this matter. Also, consistency is an important aspect of sentencing as between different offenders. But it comes back to the same thing, in my view, and that is [that] each case must be looked at on the basis of its own facts. That is how I would propose to approach my task, and it is difficult to see how the defence would seek to argue against that – that these are all factors to be taken into account, but the real synthesis is to synthesise the particular facts of this case; … to look through the prism of the factors that one is to consider, and to distil a sentence. Is that not the approach I should take?

PROSECUTOR:        Your Honour, the Crown is not going to take any issue with anything …

HER HONOUR:        I do not think the defence will either.  Do you [counsel for the appellant]?

COUNSEL FOR THE APELLANT:   It is unarguable, your Honour.[5]

[5]Plea transcript 33-36.

1. At this point in the plea hearing, then, the judge had re-iterated her determination to have regard to all the matters to which s 5(2) of the Sentencing Act refers, including current sentencing practices.  She had also stressed that she would not give any one of them any greater weight than any other.  It seems, however, that the prosecutor had seized upon but misunderstood an earlier intimation from her Honour to much the same effect.  The prosecutor wrongly took it that the judge would be ‘unconstrained’ by current sentencing practices to the extent that she would place the appellant’s punishment within a band which was more punitive than would otherwise be the case.  In other words, the prosecutor took her Honour’s words as an invitation to put to the judge a sentencing range (seven to ten years’ imprisonment) which was different from, but was a more attractive alternative than, the range (five to seven years’ imprisonment) which she initially submitted as being appropriate – the difference being that the first submission on range was premised on the judge being ‘constrained’ by current sentencing practices, while the second was premised on the judge being free of that constraint.

1. Her Honour did not comment on the position in which she was thus placed.  Nor did she seek any further explanation from the Crown about the reasoning behind the alternative positions.  In the result, she imposed a total effective sentence at the very point at which the two Crown submissions on range met:  seven years.

1. In my opinion, there is nothing in this analysis which suggests that, without any or any proper regard to current sentencing practices, her Honour imposed upon the appellant the sentences at which she arrived. It is true that the Crown’s alternative submissions about range were not accompanied by any exposition of principle sufficient to justify them; they may or may not be capable of justification. But nor does the transcript suggest that the judge moved from her repeatedly expressed position that s 5(2) of the Sentencing Act was binding upon her.  On the contrary, her Honour’s exposition of her approach was, as counsel for the appellant accepted, ‘unarguable’.

1. It follows that the additional ground of appeal must fail.

1. The question, then, becomes whether the sentences imposed, or any of them, were so punitive as to be manifestly excessive.  In my opinion, this ground is made out, but only in relation to the charge of armed robbery and, with it, the total effective sentence.  The sentence imposed on the charge of aggravated burglary is in my opinion beyond successful challenge.

1. I accept, as the facts make clear, that the appellant had never before been involved in an offence of the nature of that which took place on 13 June last year.  Nor had he ever before been imprisoned.  He pleaded guilty at the earliest opportunity, and made a confessional statement (while declining to give an undertaking to give evidence for the prosecution on the trial of his co-offenders – something for which, of course, he is not to be penalised).  His prospects of rehabilitation were, in the words of the judge, ‘probably good’.

1. All these are factors to be taken into account in mitigation of penalty.  Her Honour did so.  She did not, however, include in this category the appellant’s assertions, made in his statement to the police, which minimised his involvement.  They were nothing more than the product of untested self-interest.  I deprecate the proposition that a convicted offender is entitled to rely, in his or her plea, on material about which no attempt at proof has been made.  I have no criticism at all for her Honour’s failure to have regard to such material in this case.  On the contrary, I agree with the position she took.

1. In any event, the appellant was in the circumstances of this case a co-offender jointly liable with the other co-offenders for all that was done on the relevant occasion.

1. The appellant points to statistics which show that between the years 2004/5 and 2008/9, 93 per cent of sentences imposed for aggravated burglary were of less than 5 years’ imprisonment.  Such statistics, however, cannot establish that a sentence of 5 years and 6 months’ imprisonment for an aggravated burglary of the gravity of that with which the appellant was involved on 13 June 2010 is ‘wholly outside the range of sentencing options available’ to the sentencing judge.[6]  If support for this proposition were needed, it can be found in cases such as R v Crawley.[7]  The offender, who pleaded guilty, had entered the victim’s home intending to steal drugs and money.  He was armed with a shotgun, which at one point before the victim’s escape was fired in the victim’s direction, but did not hit him.  The Court of Appeal re-sentenced the offender to 5 years’ imprisonment for aggravated burglary and 18 months’ imprisonment for reckless conduct endangering life, with a total effective sentence of 5 years and 9 months’ imprisonment

   [6]DPP v Karazisis & Ors [2010] VSCA 350 [127].

   [7][2011] VSCA 131.

1. There is one point, however, at which I depart from the sentencing judge in this case.  The nature of the offending conduct with which we are concerned on this appeal precludes the armed robbery and the aggravated burglary being, for sentencing purposes, of the same order of criminality.  Any other conclusion would have the result that the appellant would be punished twice for the same conduct, since the two offences were each the product of that single course of conduct.  Those aspects of it which aggravated the burglary also aggravated the armed robbery. 

1. The practical effect of any double punishment could, of course, be ameliorated by orders which allowed for concurrency of sentence; but the stigma of an inflated punishment for an individual aspect of the offending would remain, and in any event justice demands that not only the total effective sentence, but also each individual sentence, be justifiable in its own right.

1. It seems to me that the appropriate sentence on the charge of armed robbery is, in the particular circumstances of this case, 2 years and 3 months’ imprisonment.  I would order that 9 months of that sentence be served cumulatively upon the sentence on count 1, making a total effective sentence of 6 years and 3 months’ imprisonment.  I would direct that the appellant serve 4 years of that term before being eligible for parole.  Were it not for the appellant’s plea of guilty, I would have imposed a total effective sentence of 8 years and 6 months’ imprisonment, with a non-parole period of 6 years and 9 months.  I would otherwise confirm the orders made below.     

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