Saner v The Queen
[2014] VSCA 134
•27 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0107
| TEKIN SANER | Appellant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2013 0126 | |
| MATTHEW KAMAL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 March 2014 |
| DATE OF JUDGMENT | 27 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 134 |
| JUDGMENT APPEALED FROM | DPP v Saner; DPP v Kamal (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013) |
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CRIMINAL LAW – Sentence – Two co-offenders both sentenced for conspiracy to commit armed robbery and theft of a motor vehicle, as well as separately for multiple offences – Pleas of guilty – Approach to sentencing – Cumulation – Each sentenced to six years’ imprisonment for conspiracy to commit armed robbery and 18 months (Saner) and two years (Kamal) for theft – Parity with each other and two other co-offenders – Whether sentences manifestly excessive – Whether sentencing judge failed to give sufficient weight to undertaking to give evidence and to guilty pleas – Double punishment – Failure to take into account amendments to the Firearms Act 1996 – Armistead v The Queen [2011] VSCA 84, Kruzenga v The Queen [2014] VSCA 10 and Dang v The Queen [2014] VSCA 49 discussed – Appeal allowed and appellants re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Saner | Mr S Ginsbourg | Revill and Papa Lawyers |
| For the Appellant Kamal | Mr D D Gurvich | Turnbull Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree with Tate JA.
TATE JA:
The appellants, Tekin Saner (‘Saner’) and Matthew Kamal (‘Kamal’) each appeal, by leave,[1] against the sentences imposed on them in the County Court.[2] The appeals were heard together.
[1]Leave to appeal against sentence was granted by Priest JA on 6 November 2013.
[2]I will refer to them jointly as ‘the appellants’ but separately as ‘Saner’ and ‘Kamal’.
The appellants pleaded guilty, on a joint indictment, to one charge of conspiring to commit an armed robbery on a sports bar in Ballarat (charge 1) and one charge of theft of a motor vehicle (charge 10). The motor vehicle was stolen in Ballarat and was connected to the planned armed robbery. They also pleaded guilty to several other offences they had committed separately at around the same time in 2011. Some of these were summary offences.
Charges 1 and 10 were the only offences to which they both pleaded guilty.
Following pleas in mitigation, the appellants were sentenced by his Honour Judge Pilgrim on 31 May 2013 as follows:
Charge on Indictment Offence Max Saner Kamal Sentence Cumulation Sentence Cumulation 1 Conspiracy to commit armed robbery [Crimes Act 1958 s 321(1)] 25 yrs 6 yrs Base 6 yrs Base 2 Theft
[Crimes Act 1958 s 74]10 yrs 18 mths Nil --- --- 3 Theft 10 yrs 18 mths Nil --- ---
4 Burglary
[Crimes Act 1958 s 76]10 yrs 18 mths Nil --- --- 5 Theft 10 yrs 18 mths Nil --- --- 6 Burglary 10 yrs --- --- 2 yrs 3 mths 7 Theft 10 yrs --- --- 2 yrs Nil 8 Burglary 10 yrs --- --- 2 yrs Nil 9 Theft 10 yrs --- --- 2 yrs Nil 10 Theft 10 yrs 18 mths Nil 2 yrs Nil 11 Possess unregistered firearm whilst prohibited person
[Firearms Act 1996 s 5(1A)][3]15 yrs --- --- 4 yrs 1 yr 12 Handle stolen goods
[Crimes Act 1958 s 88]
15 yrs 2 yrs 6 mths --- --- Summary offence 15 Deal with property suspected of being proceeds of crime
[Crimes Act 1958 s 195]2 yrs --- --- 6 mths Nil Summary offence 17 Deal with property suspected of being proceeds of crime 2 yrs --- --- 6 mths Nil Summary offence 29 Deal with property suspected of being proceeds of crime 2 yrs 6 mths Nil --- --- Summary of Result (Saner)
Total Effective Sentence: 6 years 6 months’ imprisonment Non-Parole Period: 4 years Pre-sentence Detention Declared: 508 days s 6AAA Statement: TES of 8 years with NPP of 6 years [3]This provision was repealed on 16 May 2012 and a similar offence provision enacted in s 5(1) of the Act. The new provision provides that a prohibited person must not possess, carry or use a firearm. The maximum penalty is 10 years’ imprisonment. In contrast, the legislation in force at the time of the offending distinguished between a prohibited person carrying a registered firearm (10 year maximum under s 5(1) as it then stood) and a prohibited person carrying an unregistered firearm (15 year maximum under s 5(1A)). This issue has some significance: See [125]-[139] below.
Other orders: – All Victorian driver’s licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991
– Forensic sample retention order under s 464ZFB of the Crimes Act 1958– Forfeiture of specified property
Summary of Result (Kamal)
Total Effective Sentence: 7 years 3 months’ imprisonment Non-Parole Period: 5 years Pre-sentence Detention Declared: 576 days s 6AAA Statement: TES of 9 years with NPP of 7 years Other orders: – All Victorian driver’s licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991
– Forensic sample retention order under s 464ZFB of the Crimes Act 1958
– Forfeiture of specified property including a revolverGrounds of appeal
The appellants rely on the following grounds of appeal:
Saner
Ground 1
The sentence [in respect of charges 1 and 10] breached the parity principle.
Ground 2
The sentence is manifestly excessive:
Particulars
(a)The sentencing judge failed to give any or enough weight to the appellant’s undertaking to give evidence.
(b)The sentencing judge failed to give enough weight to the appellant’s guilty plea.
Kamal
Ground 1
The individual sentences and total effective sentence are manifestly excessive.
Ground 2
The learned sentencing judge erred in doubly punishing the appellant in respect of charges 1 (conspiracy) and 11 (possessing an unregistered firearm whilst prohibited).
Ground 3
The learned sentencing judge erred by failing to take into account that, since the offence of possessing an unregistered firearm whilst prohibited was committed, the Firearms Act 1996 was amended to attract a lower maximum penalty.
In addition Kamal applied for leave, at the hearing of the appeals, to add a further ground of appeal, ground 4, which raised the issue of parity, as follows:
Proposed Ground 4(a)
The sentence imposed on Kamal with respect to charge 1 (conspiracy) infringes the principle of parity when regard is had to the sentence imposed upon Kamal’s co-offender, Lloyd Anthony Murrell.
Proposed Ground 4(b)
The sentence imposed on Kamal with respect to charge 11 (possess firearms) infringes the principle of parity when regard is had to the sentence imposed upon Kamal’s co-offenders, Lloyd Anthony Murrell and Nono Ngaa.
Early in the hearing of the appeals the Court raised with the parties the risk that, if the appeals were successful and the sentencing discretion was re-opened, the Court might impose a more severe sentence than the total effective sentence first imposed. It drew the appellants’ attention to s 281(3) of the Criminal Procedure Act 2009 which provides:
If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.
The appellants submitted that the hearing of the appeals should proceed until the point was reached where the pre-condition expressed in s 281(3) was satisfied, namely, that the Court was ‘considering imposing a more severe sentence’. The Court indicated that it had not yet reached the required stage of satisfaction. On this basis, the Court continued to hear the appeals and no warning was given as the Court never reached the stage of considering imposing a more severe total effective sentence.
A secondary issue arose in relation to the offences for which no orders for cumulation were made. Saner and Kamal both submitted that, as no complaint was made about the failure of the judge to make orders for cumulation, if the sentencing discretion was re-opened the Court should not make orders for cumulation in respect of those offences. This is discussed further below.[4] Suffice it to say here that the parties were informed and ultimately accepted that if the appeals were successful the Court, in re-sentencing the appellants, might impose orders for cumulation where the judge had failed to do so.
[4]See [156]–[165] below.
Circumstances of the offending
In October and November 2011, the appellants conspired with two other men to commit an armed robbery at a gaming venue known as JD’s Sports Bar in Ballarat. The other men were Lloyd Murrell (Saner’s older half-brother) and Nono Ngaa. Murrell was the ‘prime mover’ in the conspiracy.
Between 14 and 27 October 2011, New South Wales police intercepted telephone conversations of Murrell that revealed a plan to commit an armed robbery in the Ballarat area. The plan involved Murrell arranging for Kamal and another man to travel from Sydney to Ballarat to commit the robbery. New South Wales police advised Victoria police, who subsequently intercepted mobile phone communications between the appellants and Murrell and Ngaa between 27 October 2011 and 2 November 2011. Most of the calls were initiated by Murrell. Investigating police officers also used covert surveillance cameras and physical covert surveillance.
In the days leading up to 2 November, Murrell spoke to Kamal about obtaining a handgun for use in the robbery. Murrell asked Saner and Kamal the date of the Melbourne Cup and identified 2 November 2011 as the date for the robbery, that being the day after the Cup in order to maximise proceeds. There was also discussion between Murrell and Saner about stealing a vehicle to use as a getaway car. Murrell suggested to another brother that he (Murrell) would make $20 000 to $30 000 from the robbery.
Murrell and Kamal went to several car yards and canvassed streets in Point Cook looking for vehicles to steal. Murrell and Kamal also went to JD’s Sports Bar on 30 October and looked around the premises.
On the morning of 1 November 2011, Murrell and Kamal were under surveillance as they drove to Braybrook and parked near Kevin Dennis Motors. Kamal entered the car yard and stole a set of keys left on a counter in the office of the Sales Manager, Rodney Tobin. The keys belonged to a 2011 Holden Commodore SS Sedan valued at $40 000. Kamal and Murrell returned later the same day. Murrell entered the yard and used the keys to drive away in the Commodore. Kamal followed in Murrell’s vehicle, a Subaru sedan. They drove to Central West Shopping Centre, where Kamal advised Murrell to park the vehicle and collect it later. Murrell phoned Saner and asked whether the stolen car would be able to be tracked by an in-built GPS device. Saner telephoned a Holden dealership and then advised Murrell that the stolen car had no such device. Murrell and Kamal subsequently drove the Commodore to Tottenham where it was parked with a view to retrieving it the next morning for use in the planned armed robbery. However, the car was located by Tobin later that evening and recovered by police (Kamal — charge 8 (burglary) and charge 9 (theft)).
On 1 November 2011 there were further discussions about the planned armed robbery. During the night of 1 November, Kamal and Murrell went to Tottenham to retrieve the stolen Commodore but could not locate it. Murrell suggested they go to Ballarat the following morning and steal a car from the railway station. Murrell told Saner that Ngaa and Kamal would be going into the sports bar, that Saner would be the getaway driver and that Murrell would be watching the police station. Saner said that he did not like the idea and he told Murrell that as he had to live in Ballarat he did not want to be seen near the area. He suggested that he could watch the police station and that Murrell could be the getaway driver.
Early on the morning of 2 November, the police observed Murrell, Kamal and Ngaa leave Murrell’s house in Point Cook and travel to Saner’s house in the Ballarat suburb of Canadian. At 7:36am police observed Murrell, Kamal, Ngaa and Saner leave Saner’s residence in Murrell’s Subaru sedan and travel past JD’s Sports bar and into the vicinity of the Ballarat Railway Station. The four men were observed checking several vehicles. At 8.05am Murrell, Kamal and Ngaa gained entry to a 2002 model Holden Statesman Sedan whilst Saner waited inside Murrell’s Subaru sedan. Murrell forced the ignition of the vehicle using a screwdriver and, together with Kamal and Ngaa, drove it to Lydiard Street, Ballarat (Kamal and Saner — charge 10 (theft)). They parked the car about ten metres south of the JD’s sports bar, ready as a getaway car. The four men then returned to Saner’s house for a short period before leaving in two cars. Murrell was driving his Subaru sedan, with Kamal and Ngaa as passengers in the rear of the car. Saner was following Murrell’s Subaru in his Nissan Pulsar. They travelled in convoy and started making their way out of Saner’s estate towards JD’s Sports Bar on Lydiard Street, Ballarat.
At 8:40am, four unmarked Special Operations Group police vehicles approached the two vehicles. One police vehicle approached the Subaru from directly in front and activated flashing lights. Murrell swerved to avoid the vehicle, but collided with it. He then reversed, colliding with the Nissan Pulsar being driven by Saner. He then collided with a second police vehicle and again with the first before mounting a traffic island. Two other police vehicles blocked both vehicles.
A police officer opened the rear driver’s side door of the Subaru, observed Ngaa with hands outstretched towards the driver’s seat. He observed a revolver and called out ‘gun’ to warn other members. Ngaa was pulled from the vehicle. Police located black cable ties, formed into interlocked loops, inside his jacket. He was wearing tactical gloves. Murrell exited the Subaru and was told to get down on his stomach. He was verbally aggressive, yelling towards Ngaa, and was restrained by three police officers.
Kamal was physically removed from the car, wrestled to the ground and subdued with a Taser. Tactical gloves were seized from his left pocket.
A police officer approached the Nissan Pulsar and told Saner to get out of the vehicle. Saner did not comply and had to be physically removed.
Police located in the Subaru a silver 0.38 calibre Smith & Wesson six shot revolver, which was unregistered and loaded with six bullets inside the revolving chamber (Kamal — charge 11 (possess unregistered firearm whilst a prohibited person)).
Baseball caps and sunglasses were also located next to each of the men, to be used as disguises. A large pipe wrench was located in the boot of the Subaru sedan. The four men were taken to the Ballarat Police Station for the purposes of a recorded police interview.
Multiple search warrants were subsequently executed, as a result of which police recovered a significant amount of property that was traced back to further offending, as described below.
On 23 October 2011 Saner stole a 2011 Toyota Corolla sedan parked in the driveway of a family home at Mount Clear. Saner parked the car in his own garage. Police intercepted a conversation between Saner and Murrell where Saner described the car and the location where it had been stolen. Saner kept the car for a few days but agreed to discard it following discussion with Murrell, who did not want it used in the robbery. The car (valued at $22 000) was later recovered by police close to Saner’s house and returned to its owner (Saner — charge 2 (theft)).
After 10:00pm on 23 October 2011, Saner, Murrell and a third man went to a house in Miners Rest and forced their way into the garage where a limited edition 1985 Holden Commodore sedan, valued at $30 000, was parked. Murrell had contacted Saner by phone on 19 October 2011 and indicated that he was following the Commodore and wanted to steal it. He had followed the car to the address in Miners Rest and advised Saner were it was parked. After stealing the car, it was hidden in Murrell’s garage in Point Cook until arrangements were made for it to be towed to a factory in Tottenham to have the engine-bay spray-painted. Investigators executed a search warrant at the factory and recovered the car, which was returned to its owner (Saner — charge 3 (theft)).
At approximately 9:30pm on 27 October 2011, Saner, Murrell and a third man arrived at the City West Yamaha store at Hoppers Crossing. A metal pole was used to smash a surveillance camera mounted on the front of the building. A pair of bolt cutters was used to cut off a padlock attached to the metal boulder in front of the main doors. The men then rammed a Toyota van into the front doors, entered the store and moved the sensor for the floodlights inside the store in order to stop security floodlights from switching on. The men then stole eight motorbikes valued at approximately $18 000 and loaded them into the Toyota van. They knocked over several motorbikes in the process, causing approximately $8000 damage. They drove to Murrell’s house in Point Cook and secured the motorbikes in the front bedroom of the house. At about 10:50pm the Toyota van was found by police discarded and burnt out in Altona. Intercepted telephone conversations between Saner, Murrell and a third man prior to the burglary revealed that Murrell had made arrangements with Saner to come down from Ballarat and steal a mini motorbike for the birthday of Saner’s son on 28th October. A covert police camera installed at Saner’s residence depicted his son riding a blue mini motorbike in front of the residence on 28 October 2011. Following the execution of search warrants at the homes of Saner and Murrell on 2 November 2011, the bikes were seized and returned to the lawful owner (Saner — charge 4 (burglary) and charge 5 (theft)).
On 31 October 2011, Murrell and Kamal were under police surveillance as they entered a home in Seabrook. Kamal smashed a rear bedroom sliding-window, unlatched a window and gained entry to the house. The two men ransacked the house, and stole property such as jewellery and electronic items to a total value of approximately $14 000. The police later observed the two men and Murrell’s son taking stolen items inside Murrell’s house in Point Cook. Following the execution of a search warrant at Murrell’s house on 2 November 2011, the police located some items stolen during the burglary, including a television, and also found several items of jewellery in Kamal’s wallet (Kamal — charge 6 (burglary) and charge 7 (theft)).
Following the execution of a search warrant at Saner’s house on 2 November 2011 police also recovered two laptop computers and a blue Yamaha motorbike that were identified as stolen property and subsequently returned to the lawful owners (Saner — charge 12 (handling stolen goods)).
In addition, the police located several items of jewellery including necklaces, electronic items including laptops and computer parts, hardware and power tools. Most of these items were identified as having been stolen during a burglary in Mt Clear. The total value of the items stolen was estimated at $24 000. The items located at Saner’s residence were returned to the lawful owners (Saner — Summary offence (Deal with Property Suspected of being Proceeds of Crime).
At the time of the arrest on 2 November 2011, two gold coloured rings and $1200 cash suspected of being the proceeds of crime were located in Kamal’s possession (Kamal — Summary offence (Deal with Property Suspected of being Proceeds of Crime x 2)).
Saner was interviewed by police on 2 November 2011. During an initial interview he indicated that his brother Murrell was with a couple of mates whom he had never met before and that he was following them to the milk bar. A second interview commenced and he requested to speak to his solicitor. When that interview commenced, he answered no comment to further questions.
Kamal was interviewed on 2 November 2011. During an initial interview, he told police that he was in Ballarat because he had lost his father and had come down on 29 October 2011 with some tapes to show his family the funeral. During a second interview he told police that he had been picked up at the airport by his friend Murrell and otherwise declined to answer questions.
However, on 17 August 2012, Saner made a confession in a sworn statement of some 11 pages, in which he also implicated his co-conspirators. He also made an early plea of guilty.
Kamal did not make any statement, but also pleaded guilty at the earliest reasonable time.
At the time Saner and Kamal were sentenced, Murrell and Ngaa had pleaded not guilty and were yet to go to trial. They subsequently pleaded guilty to various offences and were sentenced by a different judge, Judge Howard.[5]
[5]This is addressed below (see [57] and the following table).
Plea hearing
Prosecutor’s submissions
Both appellants gave an early indication that pleas of guilty would be entered in relation to the conspiracy offence (charge 1). Their matters were listed for a committal, alongside the other two co-accused, on 2 October 2012. In the course of the committal, the Crown made decisions to withdraw a number of other charges against the appellants, and on 4 October (the third day of the committal), agreement was reached in relation to pleas of guilty being entered to the current charges.
The prosecutor submitted on the plea that the conspiracy charge was a very serious example of that offence and there were a number of aggravating features including the extensive planning that had taken place with an expectation for high rewards. The scale of the offending was substantial. Considerable harm could have been caused to the public without the intervention of the police, given that the armed robbery was to occur in broad daylight with a loaded weapon and with an expectation of risk to people, all of which called for general deterrence. While there had been no particular crimes of this magnitude in the appellants’ history, there was also a need for specific deterrence. The prosecutor acknowledged that the judge was obliged to take into account Saner’s statement to police but submitted that it had ‘potential value’ rather than ‘significant value’, as ‘the evidence against the other co-accused is quite strong, especially for the main charge of conspiracy’.
Defence submissions — Saner
On the plea, defence counsel for Saner submitted that:
(1) although the conspiracy was a serious example of the offence, Saner had a lesser role than Murrell, who was the prime mover. Murrell had recruited the others, and had been planning the robbery for some time before Saner joined the conspiracy on 20 October 2011;
(2) essentially all of the stolen property was recovered;
(3) Saner’s offending occurred in the context of an economically and emotionally impoverished upbringing[6] and a longstanding heroin addiction, which reduced his moral culpability;
[6]See further [46]–[47] below.
(4) Saner’s statement to police (detailing his and Kamal’s involvement and implicating the other two co-offenders), and his willingness to give evidence in accordance with the statement, was of significant value to the Crown and warranted a discount in sentence;
(5) coupled with Saner’s oral evidence of feeling sorry for the people he had stolen from, the police statement went to Saner’s genuine remorse, as well as his rehabilitation prospects in that it showed his willingness to break ties with his older half-brother Murrell, who had a much greater criminal history and had led Saner astray.
Defence submissions — Kamal
Defence counsel for Kamal submitted that:
(1) Kamal stood in a similar position to Murrell as did Saner in that Murrell was the instigator of the conspiracy and responsible for Kamal’s recruitment;
(2) although Kamal had spent some time in prison in New South Wales, most of his offending had occurred in the context of a disadvantaged upbringing[7] and an ongoing drug addiction with relapses to feed and fund his drug habit;
(3) the present offending occurred shortly after his father died, in circumstances in which Kamal described himself as having gone off the rails and relapsed into drugs;
(4) although a term of imprisonment was appropriate, a lengthy period on parole should be ordered as Kamal had significant family support and had, during significant periods in the past, shown the capacity to rehabilitate himself through work and staying off drugs.
[7]See further [48] below.
Neither defence counsel for Kamal, nor the prosecutor, made any submission with respect to the matters Kamal has raised in appeal ground 2 (double punishment) or ground 3 (subsequent reduction of maximum penalty for the firearms offence).
Sentencing reasons
The sentencing judge[8] accepted that the planned armed robbery was a very serious example of criminal offending. He found that the conspiracy and most of the other offences involved extensive planning.[9] The armed robbery was intended to be committed by at least four persons and, as mentioned above, the preparations involved a loaded revolver as well as black cable ties, tactical gloves, baseball caps and sunglasses. The judge accepted that it appeared that Murrell was the major player in the conspiracy[10] and noted that Murrell was attempting to maximise the takings.[11] He noted that there had been many cars stolen ‘all … for this one nefarious practice’[12] and that the armed robbery was intended to take place in public in one of the main streets of Ballarat.[13]
[8]DPP v Saner & Kamal (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013) (‘Sentencing reasons’).
[9]Ibid [70].
[10]Ibid [58].
[11]Ibid [70].
[12]Ibid [71].
[13]Ibid.
The judge considered that the appellants were active participants in what he called a crime wave, both in the western suburbs of Melbourne and in Ballarat. He viewed their behaviour as deplorable and to be denounced in the strongest of terms.[14]
[14]Ibid [66].
With respect to the pleas of guilty, the judge noted that both appellants pleaded guilty at the earliest opportunity, which indicated remorse and entitled them to a discount.[15] He also said that he would take into account the statement Saner made to police ‘and his willingness if required to give evidence should there be a trial’.[16] The judge elaborated on this:
For having pleaded guilty I will impose lesser sentences than I otherwise would have imposed. In other words, you will receive a discounted sentence for having pleaded guilty. Mr Saner, you receive a further discount to your sentence when it is taken into account that you have made a statement implicating others in the commission of these offences. You acknowledged on oath that the contents of that statement are true and correct, and you further undertake to give evidence if required, should that occur.[17]
[15]Ibid [66], [68].
[16]Ibid [68].
[17]Ibid [5] (emphasis added).
The judge also assured Saner that he would take into account the fact that Saner, who had never been incarcerated before, was in protective custody. He said:
Mr Saner, until going into custody on these offences you had not been incarcerated so no doubt this has been a shock to your system. You now find yourself in protective custody. I assure you that I will take that status into account in arriving at a just sentence because I have been told on many occasions it is more onerous serving a gaol sentence or serving any form of sentence when in protective custody.[18]
[18]Ibid [67].
The judge noted that both appellants had an ‘extensive criminal history’.[19] Saner admitted a criminal record containing 47 prior findings of guilt from 11 court appearances, including one conviction for burglary and handling stolen goods, and 22 for theft.[20] As mentioned, he had never before received a term of immediate imprisonment. Kamal admitted a criminal record that the sentencing judge observed was significantly worse than that of Saner.[21] However, there was minimal history of violence and no prior armed robbery offences.
[19]Ibid.
[20]Written Case for the applicant, [23].
[21]Sentencing reasons, [67], [79].
The judge referred to Saner’s personal circumstances, relying on the report of a forensic psychologist.[22] Saner had left school after year 6, spending his time on the streets, and became addicted to heroin. His father had died at the age of 32, when Saner was a 14-year-old boy. Saner’s father had most likely overdosed on heroin when he collapsed and hit his head in the bathroom. Saner had no significant employment until he moved to Melbourne in 2006 and found work installing television antennae, which he did for a couple of years until he gradually drifted out of work because of heroin use.[23] His mother had a previous relationship from which there are five children. Her previous partner was killed in a motor vehicle accident. As mentioned, one of his half-siblings is the co-accused Lloyd Murrell who had been released from prison shortly before planning the conspiracy after having been sentenced in 1996 for multiple armed robberies and other serious offending.[24] This is the same half-brother who was at the centre of the current criminal activity.
[22]Mr Simmons.
[23]Sentencing reasons, [51]-[55].
[24]Ibid [53].
The judge referred[25] to Saner’s family support, noting that he had been in a relationship with the same woman for 15 years, with whom he had three children. Regrettably, his partner is also a heroin user and has significant health problems. His children were living with Saner’s mother at the time of sentence. The judge found that Saner’s positive relationship with his partner augured well for his prospects of rehabilitation,[26] ‘guarded though it may be’.[27] He noted that this was the first time Saner had been in prison. The judge also remarked that when Saner first went into custody, he was receiving methadone at the rate of 140 mg a day, which had been reduced to 100 mg a day at time of sentence.[28]
[25]Ibid [56]-[58].
[26]Ibid [58].
[27]Ibid [68].
[28]Ibid [57].
Kamal’s background included his mother leaving the family when she suffered a nervous breakdown when he was two years old. His father was supportive. He remarried and Kamal was evicted from the family home by his step-mother when he was 13. He lived on the streets and became addicted to heroin. After his father and step-mother ended their relationship, Kamal moved back with his father until his father died from a heart attack in September 2011. The judge acknowledged that Kamal had been very close to his father and ‘went off the rails’ after his father’s death and relapsed into drugs. After his father’s death, Kamal moved in with his partner and the couple continued a relationship for nearly three years and have an infant son. Kamal maintains telephone contact with his partner and has family support in Sydney. His aunt, who operates a drug rehabilitation centre for Anglicare, is one of his most significant emotional supports.[29]
[29]Ibid [59].
The judge said that taking into account Kamal’s difficult young life, he had pursued employment with considerable success. He had undertaken secondary college until year 8 and has a certificate 3 in hairdressing. From age 17, he spent two and a half years in metal fabrication. He also worked as a mechanic with his father’s company, which business he intends to run on his own upon release from prison.[30]
[30]Ibid [60].
Kamal attended Odyssey House drug clinic for one month when he was 24.[31] He also completed the New South Wales drug court program at the age of 26. Whilst on remand, he completed a three-month drug and alcohol course, called ‘breaking the cycle’, at the Melbourne Remand Centre. Kamal began a methadone program, starting at 140 mg per day, reduced to 70 mg, and apparently even further reduced his daily intake to 40 mg. The opinion of a forensic psychologist[32] was that Kamal presented with an impaired ability to cope with life’s stresses and had dysphoric mood states. He showed symptoms of depression and grief and loss related to the death of his father.[33]
[31]Kamal was aged 30 at the time of the offending and 32 at the time of sentence.
[32]Dr Cunningham.
[33]Sentencing reasons [61]-[62].
The judge assessed Kamal’s prospects for rehabilitation as ‘guarded because [he is] wrestling with drug and alcohol problems and all of the health problems that flow therefrom’.[34] However, he considered that the prospects for rehabilitation, ‘whilst guarded, may be good subject to [him] continuing [his] drug rehabilitation programs that [he had] commenced in prison’.[35] The negative drug screens tendered on the plea indicated Kamal was abstaining from drugs. On release, he will have the support of his aunt in New South Wales who conducts the rehabilitation clinic, and other family support.[36]
[34]Ibid [69].
[35]Ibid [63].
[36]Ibid [63].
Saner’s appeal against sentence
Ground 1 — Parity
The parity principle requires a sentencing judge to ensure that a sentence imposed on an offender does not raise a justifiable sense of grievance on the part of either the offender or a co-offender because of the relative severity of their sentences. The principle requires that any material differences in sentencing considerations between co-offenders should be adequately reflected by differences in the sentences imposed on each of them.
Saner submitted that the judge erred in imposing an identical sentence of six years in respect of the conspiracy offence (charge 1), which he determined as the base offence, and a difference of only six months in respect of the other joint offence, theft (charge 10), none of which was cumulated. He argued that there were two materially different sentencing considerations between him and Kamal which would justify a shorter sentence on charges 1 and 10: Saner’s undertaking to give evidence and Kamal’s worse criminal history. Moreover, the six months less that Saner received on charge 10 was of no practical utility given that the sentence was to be served wholly concurrently with that on charge 1. Indeed, it was submitted, the sentence on charge 1 was more beneficial to Kamal because it conferred on him a longer period of concurrency (a sentence of two years made wholly concurrent rather than a sentence of 18 months). The difference in global sentences between Saner and Kamal (a total effective sentence of six and a half years with a non-parole period of four years compared to a total effective sentence of seven years and three months with a non-parole period of five years) can be attributed solely to the orders made in respect of offences not committed jointly by these two offenders. As a result, it was submitted, Saner is justified in feeling aggrieved that he did not receive a comparatively more favourable sentence, given his undertaking to give evidence and Kamal’s worse criminal history.
The Crown submitted that in order to establish a breach of the parity principle, Saner must satisfy the Court that the lack of disparity between the sentences on the two common offences must be so manifestly inadequate that it is apparent that justice has not been done. It relied upon the principles summarised by Eames JA in R v Goodwin[37] where he said:
The Court would only intervene on grounds of disparity where the disparity, or … where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done … Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: …[38]
[37][2003] VSCA 120 (‘Goodwin’).
[38]Ibid [21] (with whom Charles and Chernov JJA agreed). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
It is not sufficient to point to a mere disparity between the sentences imposed on two offenders. As King AJA observed in Little v The Queen; Holt v The Queen:[39]
[The] mere disparity between the sentences imposed on co-offenders is not of itself any basis upon which this Court will intervene. The difference between the sentences must be ‘manifestly excessive’, or ‘marked’, to the point that it gives the appearance that justice has not, in the particular circumstances, been done.[40]
[39][2011] VSCA 155.
[40]Ibid [12].
The Crown submitted that Saner could not have any justifiable feeling of grievance in these circumstances because, with respect to charge 10, he had received a sentence that was considerably less than Kamal.
Shortly before the hearing of the appeals, further submissions were received from Saner on the parity issue as a result of Murrell and Ngaa having ultimately pleaded guilty to the offences with which they were charged and having been sentenced.[41] Both Murrell and Ngaa had been charged with an additional offence of aggravated burglary, with the sentence imposed for that offence becoming the base for the remainder of their sentences. On the conspiracy charge (charge 1), which they had in common with both Saner and Kamal, Murrell received a sentence of six years’ imprisonment with four of those years to be cumulated on the base sentence, while Ngaa received a sentence of five years with three years cumulation. On the other common offence of theft (charge 10 on the joint Saner/Kamal indictment) Murrell received two years with no order for cumulation and Ngaa received 18 months, again with no order for cumulation. Set out below is a table showing the sentencing dispositions for all four offenders.
[41]DPP v Murrell & Ngaa (Unreported, County Court of Victoria, Judge Howard, 18 December 2013) (‘The Murrell/Ngaa reasons’).
Saner submitted that his sense of grievance is further justified by the fact that he received the same sentence on the conspiracy charge as Murrell notwithstanding that:
(1) Murrell was acknowledged to be the leader and principal organiser of the conspiracy;
(2) Saner had co-operated with the authorities both by making a statement to police and undertaking to give evidence against his co-conspirators;
(3) Murrell had a worse criminal history (including a 13-year sentence served in New South Wales for offences including five armed robberies);[42]
(4) Murrell had been released from serving the 13-year sentence only four months before he commenced offending again in relation to the current charges.[43]
[42]R v Murrell [2002] NSWSC 260.
[43]The Murrell/Ngaa reasons, [3]. See [46] above.
It was submitted that, given these considerations, the principle of parity required that Saner ought to have received a more lenient sentence than Murrell.[44]
[44]With respect to Ngaa, Saner argued that he should receive a sentence on the conspiracy offence no more severe than the five years imposed on Ngaa on the basis that Ngaa’s lack of priors and mental deficits (which engaged the Verdins principles) were offset by the fact that he did not co-operate as Saner did: (The Murrell/Ngaa reasons, [91], [88]).
I agree.
I consider that there are relevant differences between the criminal culpability of Saner and Murrell that have not been reflected in the sentences that have been imposed. Applying the principles summarised by Eames JA in Goodwin, there ought be different outcomes in cases that are different in relevant respects and yet the differences between the level of Murrell’s participation in the conspiracy offence, and that of Saner’s, has not been reflected in the sentences imposed. I consider the lack of disparity between their sentences to be sufficiently marked, to the point that it gives the appearance that justice has not, in these particular circumstances, been done. The centrality of Murrell to the conspiracy, including to the level of instructions as to the vehicles to be stolen, the choice of the day to maximise proceeds, and instructions on the roles to be played on the day of the robbery, is significantly different from the manner in which Saner participated in the offending.
The material differences between Saner and Murrell extend to the markedly different levels of previous offending, Saner having no previous convictions for conduct warranting incarceration while Murrell had been convicted before of armed robbery and offences involving violence.[45]
[45]In relation to Murrell’s earlier offending, in R v Murrell [2002] NSWSC 260, Howie J said, [22]: ‘These facts reveal that between February and April 1998 the prisoner was a member of a gang of professional armed robbers who had little, or no, respect for honest citizens or their property. The armed robbery offences committed in that period should be considered as falling in the upper range of seriousness for offences of their type given their nature, the threats used against the victims, the amount of money stolen and that in three of them persons were confined so that the robbers could make their escape. The fourth was a well-planned robbery of a bank. The sexual assault upon the complainant who was abducted from her own home is also an offence of grave seriousness even though the complainant was allowed to leave physically unhurt but no doubt degraded and traumatised. The armed robberies in June 1997 can appropriately be described as home invasions.’
Furthermore, I consider that the co-operation given to the police by Saner, and his undertaking to give evidence if necessary, is a significant difference between Saner’s circumstances and that of Murrell that is not reflected in the sentences imposed on the charge of conspiracy.
I also consider Saner’s co-operation to be a significant difference between his circumstances and that of Kamal’s which is not reflected in the sentences imposed on the charge of conspiracy and, to the extent to which it is reflected in the difference in the sentences imposed in respect of the charge of theft (charge 10), the difference (a reduction of six months in a sentence of two years’ imprisonment made wholly concurrent with the six years’ imprisonment imposed on charge 1) has insufficient practical utility to reflect a proper differentiation.
I consider further below the significance that should be attached to the level of co-operation Saner gave.
Ground 1 is made out.
Ground 2 — Manifest excess — (a) failure to give sufficient weight to undertaking to give evidence
Saner’s written submissions asserted that his undertaking to give evidence entitled him to ‘a substantial discount’. However, at the hearing of the appeals, Saner accepted that the undertaking was not at the higher end of the scale, although he argued that it could not be said to be nominal or of a minor nature. It was submitted that the evidence Saner undertook to give was of substantial assistance to the prosecution, implicating Murrell and Ngaa at a time when they were pleading not guilty, and allowing the Crown to identify the other offenders in the theft of the limited edition 1985 Holden Commodore sedan (Saner — charge 3)[46] and the City West Yamaha burglary and theft (Saner — charges 4 and 5).[47]
[46]See [25] above.
[47]See [26] above.
Counsel for Saner acknowledged that the judge who sentenced both Murrell and Ngaa had noted that both those offenders had given an indication to the Crown at the committal that they would later plead guilty, although no formal offer to plead was made at that stage.[48] Counsel also conceded that it was not clear whether Murrell and Ngaa knew of Saner’s statement to the police or his undertaking to co-operate at the time they gave that indication to the Crown at the committal. However, the Crown did not secure pleas of guilty by Murrell and Ngaa until well after Saner had given the undertaking. As a matter of public policy, it was submitted, it should be assumed that Saner’s undertaking to co-operate had a role to play in securing those pleas.
[48]The Murrell/Ngaa reasons, [53]. His Honour noted that it was agreed that there had been an understanding that Murrell and Ngaa would always plead guilty to the conspiracy and other charges. The contested committal related to the additional charge of aggravated burglary faced by Murrell and Ngaa only.
Furthermore, it was submitted, the undertaking was given at a personal cost, jeopardising Saner’s relationship with his half-brother Murrell and leading to him serving his sentence in protective custody, which all accepted would be more onerous. However, on this issue, the Crown pointed to other reasons supporting the placement of Saner in protective custody.[49]
[49]It appeared that Saner had been approached to smuggle some heroin into the prison and when he rebuffed the approach he was subjected to retribution.
Saner emphasised that by giving the undertaking at a time when Murrell and Ngaa had still not pleaded, Saner was exposing himself to the risk of having to give evidence if Murrell and Ngaa decided to contest the charges, notwithstanding the strength of the Crown case. It was also argued that Saner’s undertaking demonstrated his remorse and supported his prospects of rehabilitation. It represented ‘a willingness on … Saner’s part to turn his back on the influence of his brother that has led him astray … and a desire to put his past life behind him and to do the right thing.’ It showed that there was less of a need for specific deterrence compared to his co-offenders. Despite these factors, however, a comparison of the sentences imposed on Saner for the offences committed jointly with Kamal indicated not only the disparity discussed above but also that the judge gave negligible weight to the undertaking. This compares sharply with Sarvak v The Queen,[50] in which the sentence imposed on Sarvak, on appeal, was 20 per cent higher than that imposed on a co-offender who gave evidence against him, the co-offender’s co-operation being the principal basis for the difference.[51]
[50][2011] VSCA 300.
[51]Sarvak was successful on appeal on the basis of breaches of the principles of totality and parity. The Court there held that the assistance by the co-offender, while warranting a 20 per cent discount by comparison with Sarvak, did not justify the difference of about 40 per cent in relation to the total effective sentences originally imposed by the sentencing judge. Sarvak was re-sentenced to a total effective sentence of eight years and six months’ imprisonment with a non-parole period of five years and six months by comparison with the total effective sentence initially imposed of eleven years’ imprisonment with a non-parole period of eight years. The individual sentences on appeal included, relevantly, sentences of three years and six months for each of the armed robbery offences and two years for conspiracy to commit armed robbery: Sarvak v The Queen [2011] VSCA 300 [40] (Redlich JA, with whom Neave and Hansen JJA agreed).
Furthermore, it was submitted, the judge had expressly stated that Saner would receive a further discount by reason of his co-operation. As mentioned above,[52] his Honour stated that he would take into account Saner’s statement and his willingness if required to give evidence should there be a trial. He also expressly stated that he would give a further discount, in addition to that to be given for his plea of guilty, because of the statement he gave implicating others. Yet, in the face of these express statements, the judge did not articulate any consideration of the size of the discount or the factors relevant to it. It was submitted that an analysis of the final sentencing disposition would suggest that, despite the indications that a discount would be given, his Honour did not provide any, or any significant, discount.
[52]See [43] above.
In this context it is relevant that a judge is obliged, when giving a discount attributable to an undertaking to co-operate, to declare, pursuant to s 5(2AB) of the Sentencing Act 1991, that it is imposing a lesser sentence. Section 5(2AB) provides:
If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.
However, s 5(2AC) provides that there is no requirement for the court to state the sentence that it would have imposed but for the undertaking that was given.
Here, the judge, despite ‘announcing’ in his reasons that he would provide a discount attributable to the undertaking to co-operate, did not cause to be noted in the records of the court the fact that the undertaking was given or its details.
The Crown responded by denying that Saner was entitled to a substantial discount, characterising the level of assistance given as at the lower end of the scale, particularly when viewed in light of the extensive and overwhelming material obtained by the police through surveillance and intercepts. The Crown submitted that it was this independent material, pre-dating Saner’s assistance, which would have formed the evidence at any future trial, had Murrell and Ngaa not pleaded guilty. In sentencing Saner the judge had remarked that he was at a loss to understand Murrell’s defence given that ‘it has all been watched and filmed and taped.’[53]
[53]Sentencing reasons [23].
The Crown submitted that the co-operation was to be contrasted with the level of assistance given in a case such as DPP v Bariamis,[54] where the offender gave a 24-page statement that was said to have saved the police months of investigative work. In Bariamis there were three charges of obtaining financial advantage by deception, involving many millions of dollars, brought against the chief financial officer of a group of companies. Bell J noted that the offender had previously given substantial assistance that the police had described as being of an unprecedented level of co-operation. The information provided by the offender was given at significant personal cost and was very high in quality and detail. It was necessary, therefore, that the discount was also significant.
[54][2013] VSC 457 (‘Bariamis’).
Moreover, the Crown submitted, as Saner’s complaint falls under the ground of manifest excess,[55] it is necessary to consider more generally the sentences imposed in comparative cases of offending, whether or not an undertaking was given. I consider these cases below.[56]
[55]The question of whether any discount is adequate ‘is examinable under cover of a ground contending that the sentence arrived at was manifestly excessive’: Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 686 [47] (Maxwell P with whom Redlich JA agreed). See also R v Johnston (2008) 186 A Crim R 345, 350 [19] and Scerri v The Queen (2010) 206 A Crim R 1, 8 [30].
[56]See [85]-[92] below.
In my view, it is important to recognise that there is a strong public policy reason for encouraging co-operation by offenders with the authorities. The general principles which apply were outlined in a joint judgment of Hunt and Badgery-Parker JJ in R v Cartwright,[57] and adopted by this Court in R v Su,[58] which indicated that a court should not need to investigate the efficacy of an undertaking:
It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.
In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.
Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source — or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.
All of these matters should be dealt with in a broad and general way without descending into minute detail. It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.[59]
[57](1989) 17 NSWLR 243.
[58][1997] 1 VR 1, 78-79 (Winneke P, Hayne JA and Southwell AJA).
[59]R v Cartwright (1989) 17 NSWLR 243, 252-3. (Emphasis added in final paragraph.)
The Court of Appeal in R v Su observed that it did not interpret the joint judgment of Hunt and Badgery-Parker JJ as stating that the question of effectiveness is irrelevant; the Court considered that the question of the effectiveness of information is relevant because ‘the degree of effectiveness might well throw light upon the questions whether and to what extent the informer has made full and frank disclosure.’[60]
[60]R v Su [1997] 1 VR 1, 79.
The amount of any discount will vary according to the circumstances of each case, including the personal risks taken by the offender by co-operating. As Nettle JA observed in R v Johnston:[61]
While there are decisions which suggest a discount of 50% [for an informer], or perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive. In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough. Other relevant considerations include the nature and gravity of the crime, the offender’s moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.[62]
[61](2008) 186 A Crim R 345.
[62]Ibid [18] (citations omitted).
The difficulties associated with separately identifying the discount to be attributed to a willingness to co-operate as opposed to a demonstration of remorse, or a plea of guilty, were referred to by Gleeson CJ in R v Gallagher:[63]
It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.[64]
[63](1991) 23 NSWLR 220.
[64]Ibid 228.
In my view, Saner was entitled to a discount for the statement he made implicating others and for his undertaking to give future co-operation, including evidence at trial, if necessary. The judge acknowledged twice that Saner was entitled to a discount but he failed to have the undertaking noted in the records of the court and, more significantly, the lack of any real differentiation in the sentences imposed on Saner and Kamal with respect to charges 1 and 10 indicates that no discount was given. Nor did his Honour set out any findings about the quality of the assistance given. Nor did he provide any real assessment about how effective the assistance was likely to be, given the surveillance and intercept information gathered by the police. Furthermore, it is not apparent how Saner’s sentence could properly have been increased if it had become necessary to do so if the Director of Public Prosecutions sought to have him re-sentenced for failing to fulfil his undertaking.
All of this suggests that his Honour erroneously did not ultimately turn his mind to the extent to which the sentence he was to impose on Saner should be reduced in light of Saner’s co-operation.
I consider that, although Murrell and Ngaa ultimately pleaded guilty, and although there was extensive independent evidence against them based on surveillance and telephone interceptions, Saner had demonstrated a willingness to make full and frank disclosure at significant risk to himself. The fact that his co-operation would impact adversely upon his relationship with his half-brother Murrell demonstrated the extent to which he sought to distance himself from the wrong-doing with which Murrell was associated. This is not only indicative of remorse but augurs well for his prospects of rehabilitation.
Given that this complaint falls to be considered under the rubric of manifest excess, it is useful, although not conclusive,[65] to consider the sentences imposed in
other cases with respect to similar offending.[66]
[65]See Hili v The Queen (2010) 242 CLR 520, 537 [54]. See also [106]-[107] below.
[66]The relevant Sentencing Snapshot points to a range of imprisonment of three months to 16 years for the offence of armed robbery, with a median of three years and six months’ imprisonment: Sentencing Snapshot, Armed Robbery, No 122 (June 2012).
The Crown submitted that it was appropriate in this case to have regard to sentences imposed for actual armed robberies because although Saner was convicted of conspiracy to commit armed robbery, and not the substantive offence, the preparation here was substantial and it included the involvement of a firearm, and the offenders were apprehended on their way to carry out the offence.
In R v Bortoli[67] the appellant was sentenced, after pleading guilty and indicating a willingness to co-operate with investigators, on two counts of armed robbery, two counts of conspiracy to commit armed robbery, and one count each of conspiracy to commit robbery, theft and burglary. The weapons used for the armed robbery offences were firearms, and in one instance a machete. The sentencing judge there imposed sentences of five years’ imprisonment for both counts of armed robbery, and two years’ imprisonment for each of the conspiracy to commit armed robbery offences.[68] The Court of Appeal rejected a submission that the sentences were manifestly excessive, observing that they were at the lower end and that the appellant had received relatively lenient treatment.[69] Redlich JA emphasised the seriousness of armed robbery offences and the potential for violence. He said:
Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. An armed robbery involving the use of loaded firearms at secured premises, with a likely presence of security guards, increases the risk of serious injury or death in the course of the commission of the offence. The armed robberies committed by the appellant fell into this category. These are, as this Court observed in R v Williscroft, offences of such gravity that they call for a ‘condign sentence’. The high maximum sentence for such an offence has been viewed as indicating that deterrence is a matter that should be given priority. Armed robberies which are carefully and professionally planned and executed must be viewed as more deserving of exemplary punishment.[70]
[67][2006] VSCA 62 (‘Bartoli’).
[68]Together with the sentences for the other offences, the total effective sentence was six years and nine months, with a non-parole period of five years.
[69][2006] VSCA 62 [24] (Redlich AJA, Maxwell P and Buchanan JA agreeing).
[70]Ibid [23] (citations omitted).
R v Barci; R v Asling[71] involved three counts of armed robbery, six counts of theft and one count of arson. Firearms were used. Two of the armed robberies involved the hold-up of armoured vans carrying large sums of money: $426 000 and approximately $1 million. The other armed robbery involved some $3500 in takings removed from the store safe as one of the offenders held a gun to the manager’s head. During the second of the armoured van robberies, gunshots were fired, one of the co-offenders was killed and Barci incurred severe injuries when the top of his shoulder was blasted away and his chest wall was damaged. The Court of Criminal Appeal described these offences as ‘among the most serious encountered in this State … carried out after careful planning, they were executed in a professional and violent manner by men who carried loaded weapons, and who had other loaded weapons at hand to use, if necessary, in effecting their escape.’[72] The crimes called for punishment in the upper range. The sentencing judge imposed sentences of seven and a half years’ imprisonment for both of the armoured van robberies. Taken with the other sentences imposed, and cumulation, the total effective sentence for each of Barci and Asling was 15 years with a non-parole period of 10 years. While the Court observed that ordinarily such sentences would be regarded as ‘perfectly proper’, it accepted that the sentencing judge had given insufficient weight to Barci’s injuries and that his sentence should be reduced.[73] The Court dismissed Asling’s application for leave to appeal against sentence.
[71](1994) 76 A Crim R 103.
[72]Ibid 110 (Southwell, Hampel and Hansen JJ).
[73]Barci suffered ongoing and severe injuries from the gunshot wounds, which distinguished him from Asling. Barci’s total sentence was therefore reduced to 12 years with a non-parole period of seven years. This was achieved by cumulating four and a half years of the sentence for the second armoured van robbery with the sentence for the first armoured van robbery.
In Driver v The Queen[74] Nettle JA rejected an argument that a sentence of five and a half years’ imprisonment was manifestly excessive for what he described as a ‘premeditated, elaborately planned armed robbery committed on a bank in daylight hours in circumstances which were calculated to instil terror into the victims and which was potentially capable of leaving them with serious emotional damage. It demanded condign punishment.’[75] That case involved a rifle, albeit unloaded at the time of the offence.[76]
[74][2012] VSCA 242 (‘Driver’).
[75]Ibid [28] (Buchanan JA agreeing).
[76]Driver was also convicted of possessing an imitation handgun. See [128] below.
The Crown submitted that this line of authority demonstrated that armed robberies that are carefully and professionally planned are deserving of exemplary punishment. Here the conspiracy to commit armed robbery had involved extensive planning, the choosing of pre-allocated and rehearsed roles, the planned use of disguises and the devising of getaway routes. The Crown submitted that Saner had not established that either the individual sentences or the total effective sentence were outside the range of sentencing options available, even given his co-operation and plea of guilty.
I disagree.
It can be accepted that there is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. As this Court said in DPP v Fabriczy:[77]
There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. The conspiracy offence is directed at a different mischief — the making of an agreement to act unlawfully — and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly. The court must also take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.[78]
[77]DPP v Fabriczy (2010) 30 VR 632.
[78]Ibid 633 [2] (Maxwell P, Neave and Redlich JJA).
Moreover, here the co-conspirators were engaged not only in organisation and planning but the steps taken in furtherance of the conspiracy were extensive and were only interrupted at an advanced stage towards the commission of the planned armed robbery. While the conspiracy was here well planned, it would be wrong to ignore the fact that it was Murrell, and not Saner, who was at the centre of the organisation and planning. Saner was one of the members of the conspiracy who received his instructions from Murrell yet the sentence imposed on Murrell, for the very same conspiracy, was the same as that imposed on Saner (six years) while Ngaa, also one of those who received his instructions from Murrell, was sentenced to one year less in respect of the conspiracy offence. Most significantly, for all the reasons discussed above,[79] it was important that the public utility in encouraging co-operation was recognised by sentencing Saner to an appropriately reduced sentence.
[79]See [78]–[81] above.
In my view, once Saner’s co-operation is taken into account, the sentence of six years imposed in respect of the conspiracy offence is manifestly excessive.
I would uphold ground 2(a).
Ground 2 — Manifest excess — (b) plea of guilty
Given that I have concluded that the sentence imposed on Saner was manifestly excessive, it is unnecessary to consider the second aspect of the sentence relied upon to demonstrate manifest excess, namely, ground 2(b). However, I make some brief observations.
As noted above,[80] the judge stated that both Saner and Kamal would receive discounted sentences for their pleas of guilty.[81] In particular, his Honour observed that Saner’s plea was made at the earliest opportunity and he accepted that it was indicative of remorse.[82] In giving the s 6AAA declarations for both offenders, he said: ‘They indicate, I would imagine, significant discounts because of their pleas.’[83]
[80]See [43] above.
[81]Sentencing reasons [5].
[82]Ibid [66].
[83]Ibid [79].
It is submitted on behalf of Saner that his early plea of guilty entitled him to a discount ‘that was close to the maximum available.’[84] He also gave sworn evidence of remorse, which the sentencing judge accepted. The utilitarian value of avoiding a lengthy trial was, according to Saner, high. Nonetheless, a comparison between the s 6AAA declaration and the sentence imposed shows that the discount was less than 20 per cent. It was argued that this reduction was inadequate.
[84]Saner written submissions [40].
The Crown submitted that it could not be said that his Honour’s instinctive synthesis produced a sentence that was disproportionate to Saner’s degree of criminality.
It is settled law that the weight to be given to a plea of guilty is a discretionary matter and that the sentencing judge has a wide discretion when assessing the circumstances of the particular case.[85] In a particular case, a s 6AAA declaration may indicate that the plea was effectively ignored, leading to an error in the exercise of the sentencing discretion, but such a case is rare.[86] And while Nettle JA in R v Howard[87] observed that ‘[i]n light of s 6AAA of the Sentencing Act 1991 and the social utility of encouraging offenders to enter an early plea of guilty, the discount allowed for an early and unconditional plea of guilty should ordinarily be substantial’,[88] the issue of whether an adequate discount has been given for a plea of guilty is a particular of whether the sentence was manifestly excessive, bringing into play all the considerations which apply to that exercise.[89] It is important that it be recognised that a challenge to a s 6AAA declaration is not a separate ground of appeal.[90]
[85]See for example R v Gray [1977] VR 225, 232 (McInerney and Crockett JJ), R v El-Ahmad [2004] VSCA 93 [31] (Eames JA), Sherna v The Queen (2011) 32 VR 668, 683 [88] (Whelan AJA).
[86]Saab v The Queen [2012] VSCA 165 [61].
[87][2009] VSCA 281.
[88]Ibid [16] in agreeing with Buchanan JA that the anomalies in the discounts given indicated that the sentencing judge’s discretion had miscarried.
[89]See for example Scerri v The Queen (2010) 206 A Crim R 1, 6 [24] (Maxwell P and Buchanan JA), Rizzo v The Queen [2011] VSCA 146 [33]-[34] (Neave JA), Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399, 416 [67] (Maxwell P, Bongiorno JA and Kyrou AJA).
[90]Cedic v The Queen [2011] VSCA 258 [40] (Tate JA); see also the criticisms of s 6AAA declarations in Samac v The Queen [2011] VSCA 171 [88]-[89] (Ashley JA).
While I consider that the sentence imposed was manifestly excessive, I do not consider that the ground based on the early plea of guilty is separately made out.
I reject ground 2 (b).
Conclusion on Saner’s appeal against sentence
Saner has been successful on grounds 1 and 2(a).
I would allow Saner’s appeal against sentence.
Kamal’s appeal against sentence
Ground 1 — manifest excess
Kamal submitted that the individual sentences and the total effective sentence imposed on him were manifestly excessive as wholly outside the range of sentencing options available. He relied on a table of comparable cases including R v Stevens[91] (sentenced to five years’ imprisonment in respect of armed robbery and two years for conspiracy to commit armed robbery); Nguyen v The Queen[92] (sentenced to six years six months’ imprisonment for armed robbery and two years for possessing firearm); Waugh v The Queen[93] (sentenced to seven years and six months’ imprisonment for armed robbery) as well as Sarvak v The Queen and Driver v The Queen which were discussed above.[94]
[91][2009] VSCA 81 (on a plea of guilty).
[92][2010] VSCA 284 (on a plea of guilty).
[93][2013] VSCA 36 (Waugh pleaded not guilty to the charge of armed robbery, but did plead guilty to other offences).
[94]See [70] and [89] above respectively.
While current sentencing practices are important,[95] care must be exercised when having regard to sentences passed in other cases because while past sentences provide a historical account of what has happened previously,[96] they do not of themselves fix boundaries which must dictate future sentences.[97] Comparisons with other cases will only be of limited assistance in determining an appropriate sentence in an individual case. It is only by reference to the whole of the circumstances giving rise to the offending that unifying principles can be discerned.[98] This was recognised by Ashley, Redlich and Harper JJA in Hudson v The Queen,[99] where they quoted with approval New South Wales authority:[100]
[95]Nash v The Queen [2013] VSCA 172.
[96]See [85] above.
[97]Hili v The Queen (2010) 242 CLR 520, 536-7 [53]-[55].
[98]Ibid 537 [54].
[99](2010) 30 VR 610 (‘Hudson’). See 616-9 [27]-[37] in particular.
[100]The statement of Wood CJ at CL in R v George (2004) 149 A Crim R 38, 47 [48]-[49], cited in R v Araya (2005) 155 A Crim R 555, and referred to by Campbell JA in Jimmy v The Queen (2010) 77 NSWLR 540, 572-3 [132].
It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority … At the most, other cases can do no more than become part of a range for sentencing …
The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required.[101]
In Hudson their Honours went on to say:
On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.[102]
[101]Cited in Hudson v The Queen (2010) 30 VR 610, 618 [34].
[102]Ibid 618 [35].
While the cases relied upon here do indicate broadly the type of sentences imposed in other cases, they are of limited assistance, particularly given the differences in the nature of the offences and the variety of mitigating and
aggravating factors in the individual circumstances of those cases.[103]
[103]For example, Nguyen was diagnosed with schizophrenia and Driver suffered from a depressive illness.
In further support of his ground of appeal based on manifest excess, Kamal relied on the following factors, all of which he accepted were referred to by the sentencing judge but none of which, in his submission, was given adequate weight: Kamal’s plea of guilty, which was accompanied by remorse and, as mentioned above,[104] was made at the earliest possible opportunity;[105] the fact that his criminal history, whilst extensive, contained a minimal history for violence and no prior armed robbery offences; his mitigating circumstances included his difficult childhood, his father’s death prior to the offending,[106] his efforts at rehabilitation[107] and the fact that he has a young child.[108] He also pointed to the fact that he was not the instigator of the conspiracy and, while acknowledging, as mentioned above,[109] that there is no principle in law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted,[110] he relies on the absence from his offending of those features which generally characterize armed robbery offences, including the striking of terror into the minds of victims and the use of a weapon.
[104]See [34] above.
[105]Sentencing reasons, [63], [68].
[106]Ibid [59], [62].
[107]Ibid [60]-[65], [68].
[108]Ibid [59].
[109]See [92] above.
[110]DPP v Fabriczy (2010) 30 VR 632.
In response, the Crown submitted that the total effective sentence was not manifestly excessive, as it was proportionate to Kamal’s degree of criminality (which, it was submitted, represented a serious example of criminal offending), and allowed an inference to be drawn that the sentencing judge was mindful of the principle of totality in that he ordered a modest level of cumulation on charges 6 and 11 only, and no cumulation in respect of charges 7, 8, 9, 10 and summary charges 15 and 16. I discuss the issue of the approach to cumulation taken by the judge in the sentencing exercise below.[111] Suffice it to say here that Judge Howard indicated that he disagreed with the methodology adopted by Judge Pilgrim in his approach to cumulation[112] and I also disagree.
[111]See [160]–[163] below.
[112]See [162] below.
I consider that the individual sentences and the total effective sentence imposed here were manifestly excessive for many of the same reasons I expressed in respect of this conclusion in respect of Saner. While Kamal did not provide a statement or an undertaking to co-operate, it remains the case that he was not the principal organiser of the conspiracy; the role he played in the conspiracy was very much at the direction of Murrell.[113]
[113]See the discussion by Judge Howard of the centrality of the role played by Murrell (vis-à-vis both Kamal and Saner), [141] below.
I accept ground 1.
Ground 2 — double punishment
Kamal acknowledged that the discretion to order cumulation is very broad and should not be unduly circumscribed by appellate intervention.[114] Nonetheless, he submitted the sentence imposed for the charge of possessing an unregistered firearm whilst prohibited, as well as the cumulation order, had the effect of doubly punishing him, as his possession of the firearm in question formed a part of the conspiracy constituting charge 1. This amounted to a specific error in contravention of the principle in Pearce v The Queen,[115] as applied in a number of Victorian cases.[116]
[114]R v Hogan [2008] VSCA 279 [29] (Maxwell P, Redlich JA and Robson AJA).
[115](1998) 194 CLR 610.
[116]See, for example, R v Audino (2007) 180 A Crim R 371; Loader v The Queen & Anor (2011) 33 VR 86; R v Healey (2008) 186 A Crim R 433.
In Dang v The Queen,[117] this Court recently discussed the principle that an offender ought not be punished twice for the same act or omission:
In Pearce the High Court held that a person should not be twice punished for what is substantially the same act. In a joint judgment, McHugh, Hayne and Callinan JJ said:
In Grenfell v The Queen,[141] Harrison J, on behalf of the NSW Court of Criminal Appeal, emphasized that while a change in legislation is something which a sentencing judge may take into account, failure to do so does not necessarily bespeak sentencing error.[142] In that case, the offending conduct had spanned a period of 28 years and much of it had occurred at a time significantly before the changes to the legislation.
[141](2009) 196 A Crim R 145.
[142]Ibid 152 [26]-[27].
Nettle JA in Driver surveyed these authorities and held that, in the circumstances of the case, the failure by the sentencing judge to take into account the reduced sentence for the possession of an imitation firearm was in error. He said:
In this case, the offending occurred late in 2010 and early in 2011. The legislative changes which recharacterised the offence of possession of imitation firearm, to give effect to an interstate agreement, came into force on 1 July 2011. Thus to adopt Howie J’s language, the offending occurred at a time relatively approximate to Parliament’s expression of change of view.
On the other hand, as counsel for the Crown submitted, the significance of the change is limited to the difference between the elements of the more general offence introduced by the legislative changes and the offence under the provisions which have now been repealed. As Buchanan JA explained in Pak v R, elements of the offence created by s 5 of the Control of Weapons Act are different from the elements of the offence created by s 7B(1) which prohibited possession of an unregistered general category handgun including imitations by persons who do not have the necessary exemption or approval. Contrastingly, it was not an element of the offence under s 5 of the Control of Weapons Act that the imitation firearm be unregistered.
Consistently with what was said by Vincent JA in Bowen, I consider that it is appropriate that the new maximum penalty of two years’ imprisonment be taken into account as indicating that Parliament’s view of the seriousness of the offence of possession of an imitation handgun has now changed. I accept, too, that the sentencing judge’s failure to take it into account is properly to be regarded as sentencing error even though the point was not relied upon below and the judge can in no way be criticised for failing to detect it. With all respect to the opposite view expressed in Grenfell, if it is legally impossible to ignore legislative acts or statements that indicate that Parliament’s view of the seriousness of particular criminal conduct has changed, as was held to be the case in Ronen, then it must surely follow that the judge’s failure to take such a change into account amounts to sentencing error.[143]
[143]Driver [2012] VSCA 242 [39]-[41] (citations omitted).
Here, the Crown submitted that the reduction in penalty from 15 to 10 years ought not be regarded as a change in attitude by Parliament to the seriousness of the offence. The new maximum only represents a reduction in the sentence of 33 per cent which stands in contrast to the reduction in Driver of 77 per cent. It was argued that the reduction in the maximum penalty applicable here was only marginal and would not have affected the sentence if the new maximum penalty had been applicable.
The Second Reading speech explained the amendment without mentioning the severity of the sentence, as follows:
Currently, there are two relevant offences in section 5 of the Firearms Act, which make a distinction between a registered and unregistered firearm. The Victorian County Court recently ruled that in order to bring a successful prosecution against a prohibited person for possessing, carrying or using an unregistered firearm, it would have to be demonstrated that the accused had knowledge of the status of the firearm. This is very difficult to prove. The offences are intended to prevent prohibited persons from possessing, using or carrying any firearm, regardless of whether it is registered or unregistered. Therefore, this amendment will combine the two offences so that it is an offence for a prohibited person to possess, carry or use a firearm irrespective of its status.[144]
[144]Victoria, Parliamentary Debates, Legislative Assembly, 7 December 2011, 6214 (Peter Ryan, Minister for Police and Emergency Services).
The amendment to the Firearms Act has thus created a new offence, one that does not distinguish between the registered or unregistered nature of the firearm.[145] The new offence created is a hybrid of the two previously distinct offences and the applicable penalty is that which applied to the lesser offence; this would appear to be a natural consequence of it no longer being necessary to the commission of the offence that the firearm of which the offender is in possession is unregistered. The legislative history together with the nature of the legislative amendment are quite different from those which applied in Driver. Nevertheless, one of the purposes of the amending legislation was declared to be to ‘combine two offences relating to prohibited persons possessing, carrying or using registered or unregistered firearms’.[146] In so declaring, Parliament has indicated that the distinction between registered and unregistered firearms is not to be given the significance previously associated with it in the context of this specific offence.
[145]The Firearms Act continues to treat the registration of firearms as a matter of legal significance. The Chief Commissioner is obliged to maintain a register: s 113. Section 8A provides for proof of registration in proceedings where a firearm does not have a serial number or the serial number has been defaced.
[146]Control of Weapons and Firearms Amendment Act 2012, s 1(b)(iii).
In my view, it should be concluded that the amendment made here, the repeal of s 5(1A) of the Firearms Act, and its replacement by s 5(1) of the Firearms Act, reflects a change in attitude by the Parliament which enables Kamal’s submission to succeed.
I accept ground 3.
Ground 4(a) — Charge 1 — parity with respect to Murrell
As mentioned above,[147] at the hearing of the appeals, Kamal sought leave to add two further grounds of appeal, grounds 4(a) and 4(b), raising issues of parity with the sentences imposed on the co-offenders Murrell and Ngaa. I have set out above[148] the table which illustrates how all four of the offenders were sentenced.
[147]See [6] above.
[148]See [57] above.
With respect to the conspiracy offence, charge 1, Murrell was sentenced by Judge Howard to six years’ imprisonment, the same sentence as that imposed on Kamal, four years of which was to be cumulated on the base sentence of six years for an aggravated burglary which was unrelated to the offences for which Saner and Kamal were convicted. Kamal complains that he ought not to have had the same sentence imposed on him as was imposed on Murrell when his level of participation in the conspiracy was substantially different to that of Murrell’s. Judge Howard described Murrell as ‘the principal instigator, planner and organiser’[149] of the conspiracy offence and, more specifically, described the offending in a manner that highlighted the centrality of the role played by Murrell including the organising of the weapon:
You, Mr Murrell, played a significant role in this offending. Among other things, you discussed with Saner stealing a getaway car for the robbery and on 23 October you told him to get rid of a Corolla he had stolen because the robbery was still a while way; on 23 October you told your brother, Anoir, that you had been to Ballarat to look at the job and that each of the conspirators would make $20,000 to $30,000; over a number of days you discussed with Kamal his participation in the robbery (possibly with another man from Sydney) and asked him to get a weapon; but then you later told Kamal not to worry about the gun as you had obtained a weapon yourself; you went to Ngaa’s premises and recruited him for the enterprise; you picked up Kamal at the airport and he stayed with you at your premises in Point Cook. Then, on 30 October in a surveillance exercise, you and Kamal drove to Ballarat and entered the targeted premises to check it out. On 31 October, you discussed with Saner stealing a getaway car that day but were unsuccessful in doing that until the next day, see: charge 9 and 10. On 1 November, you told Saner you had a gun put away and asked him to organise cable ties that were big enough to go around a person’s hands and the following day you discussed with Saner clothing to be worn and told him that Ngaa and Kamal were going to go inside the targeted premises whilst you would be watching the police station nearby and he, Saner, would be out the front in the getaway car. Saner did not want to do this because he might be recognised as someone living in the area, and suggested that instead you, Mr Murrell, could be the getaway driver. On the morning of the proposed robbery, you drove Kamal and Ngaa in your Subaru from your home to Saner’s home and then the four of you drove past JD’s in Ballarat in your car so you could check out the robbery target. Then the group stole a getaway car which you started without keys and parked outside JD’s, see: charge 11. You all then returned to Saner’s before setting off for the robbery which … was thwarted by your arrests.[150]
[149]The Murrell/Ngaa reasons, [94].
[150]Ibid [9].
In addition, Murrell had a far more extensive criminal history than did Kamal. Judge Howard referred to Murrell’s serious criminal history in New South Wales dating from 1988 and involving dishonesty, violence and drug offences for which Murrell had frequently been sent to prison. In 2002 he was sentenced in the Supreme Court of New South Wales to a total effective sentence of 13 years’ imprisonment with a minimum of seven and a half years’ for very serious offending including multiple counts of armed robbery with a dangerous weapon and aggravated sexual assault.[151] Murrell is also an older man than Kamal, Murrell being 40 when he was released from custody in New South Wales in July 20011 before the current offending while Kamal was aged 30 at the time of the offending.
[151]R v Murrell [2002] NSWSC 260 (Howie J). See [62] above.
Significantly, Judge Howard was very guarded about Murrell’s prospects of rehabilitation. He said:
Notwithstanding … improvement over the past two years, it is not possible to conclude you have good prospects for rehabilitation. You do appear to be moving in the right direction in prison but the psychologist states that you present as an on-going risk of re-offending until you engage with persistent psychological, psychiatric, drug and alcohol and community support. You have a very bad criminal history and, significantly, strong claims of rehabilitation were made at the 2002 sentence hearing (similar to the present), which were completely dashed when you committed these offences within a very short time of your release on that sentence. In the light of all that, and the multiplicity and nature of this offending, I remain very guarded as to your prospects of rehabilitation.[152]
[152]The Murrell/Ngaa reasons, [72].
By contrast, Judge Pilgrim said of Kamal’s prospects of rehabilitation that, ‘whilst guarded, [they] may be good’ subject to Kamal continuing with the drug rehabilitation programs that he commenced in prison.[153]
[153]See [51] above.
The Crown submitted that a proper comparison could not be drawn between the sentence imposed on Murrell and the sentence imposed on Kamal, because Murrell was being sentenced in the context of a range of other offences.
I accept Kamal’s submissions that there were significant differences between himself and Murrell with respect to their level of participation in the offending, their criminal history, and their prospects of rehabilitation. Judge Howard was clearly conscious of the different levels of criminal culpability between Murrell and Kamal.[154] He was also mindful of parity issues between all the co-offenders.[155] However, in sentencing Murrell for the conspiracy offence, he did not feel constrained by the sentence imposed on Kamal in respect of that offence, or the other offences, no doubt given his disagreement with the methodology adopted by Judge Pilgrim. The sentence of six years imposed by Judge Howard on Murrell for conspiracy was imposed in respect of the conspiracy offence alone. There was no attempt by Judge Howard to impose a sentence for conspiracy on Murrell that might reflect a ‘global’ assessment of the criminal culpability associated with the totality of his offending, as Judge Pilgrim had done with respect to Saner and Kamal. In my view, there is a marked disparity in the sentence imposed on Kamal with respect to the conspiracy charge and the sentence imposed on Murrell, given their different levels of participation. I do not accept that the fact that Murrell was being sentenced for additional offences precludes the conclusion that the sentence imposed on Kamal for the conspiracy charge contravened the parity principle.
[154]See [141] above.
[155]See [162] below.
I would grant leave to appeal on ground 4(a) and I accept that ground 4(a) is made out.
Ground 4(b) — Charge 11 — parity with respect to Murrell and Ngaa
Given my conclusions on ground 2 (double punishment), it is unnecessary to deal with ground 4(b) at any length. However, I will consider it briefly.
With respect to charge 11 (possession of an unregistered firearm), Kamal was sentenced to four years’ imprisonment, one year of which was cumulated on the base. Murrell was also sentenced for this offence to four years’ imprisonment with one year to be served cumulatively. Ngaa pleaded guilty to possession of an unregistered general category handgun (charge 13 on the Murrell/Ngaa joint indictment) for which the maximum penalty was seven years’ imprisonment.[156] He was sentenced to 12 months’ imprisonment of which six months was ordered to be served cumulatively.
[156]The Murrell/Ngaa reasons, [19].
Kamal relied on many of the same features that differentiated him from Murrell as identified under ground 4(a), including Murrell’s organising of the weapon. The Crown pointed to the fact that Kamal was more involved in the plan for a firearm than was Ngaa, Ngaa being recruited after Murrell had organised the firearm.
I do not accept that there was a significant difference between Ngaa and Kamal with respect to the firearm given that Murrell ultimately organised the weapon and told Kamal not to worry about obtaining a gun. However, Ngaa was convicted and sentenced with respect to a distinct offence from that for which Kamal was sentenced and there is little utility in comparing the sentences imposed. There is a significant difference, however, in the criminal culpability between Kamal and Murrell in respect of the firearm offence, most especially given Murrell’s role in obtaining the weapon.
I would grant leave to appeal on ground 4(b) and I accept that ground 4(b) is made out.
Conclusion on Kamal’s sentence appeal
Leave to appeal should be granted to Kamal on grounds 4(a) and 4(b).
As Kamal has been successful on grounds 1, 2, 3, and 4(a) and (b), I would allow Kamal’s appeal against sentence.
Re-exercise of Sentencing Discretion
As both appeals against sentence should be allowed, the sentencing discretion is re-opened.
Saner submitted that should the Court find the sentence for charge 1 was manifestly excessive, the sentencing discretion should be re-opened in respect of the sentences relating to the offences on which Saner and Kamal were jointly charged arising from the conspiracy (charges 1 and 10), but not for the remaining sentences, about which no complaint is made. Neither Saner nor Kamal made any complaint about the cumulation, or absence of it, for the other sentences, or the concurrency between the sentences on charges 1 and 10, which was said to be appropriate. It would be unfair, it was argued, if Saner and Kamal, because they complained about the sentence on the conspiracy charge, were to be exposed to an adverse sentencing outcome on the remaining charges the sentences on which were to be served concurrently with the sentence in respect of the conspiracy offence.
The Crown submitted that once the sentencing discretion is re-opened, the Court would be permitted here to re-consider all of the sentences imposed and revisit the issue of cumulation.
I agree.
As Redlich JA said in Armistead, ‘the sentencing discretion is not generally re-opened unless the error made in sentencing on one count was material in relation to the sentences imposed on the other counts’.[157]
[157]Armistead [2011] VSCA 84 [30].
Here, Judge Pilgrim determined not to order any cumulation either in respect of the overt acts of the conspiracy or in respect of other discrete and unrelated offending, with the exception of charge 12 (handling stolen goods) for Saner and charges 6 (burglary) and 11 (possession of firearm) for Kamal. Putting to one side those exceptions, he preferred instead to collect all of the criminal culpability into a single ‘global’ sentence of six years. The method of sentencing employed failed to provide any transparent record of the judge’s assessment of the gravity of the particular offending that would have been revealed by orders for cumulation. It meant that the judge impermissibly fixed a sentence to be imposed on the charge of conspiracy that included punishment for other criminal conduct. Plainly that is something that cannot be done. Alternatively, if he did not do so, he failed to impose any punishment for the other serious offences in contravention of other sentencing principles, most especially the principle of totality.[158]
[158]In Director of Public Prosecutions v Grabovac (1997) 1 VR 664, Ormiston JA discussed approaches to be taken by sentencing judges to principles relating to cumulation. He said (at 676): ‘The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, “episodes” or “transactions” giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence’. In considering the principle of totality, Ormiston JA (at 676-7) identified two methods of sentencing by reference to a passage from the High Court in Mill (1988) 166 CLR 59, 63: ‘Where the principle [scil. of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing Court, an 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’ (emphasis added). He expressed his agreement with that passage saying (at 680): ‘[A]s the High Court said, where practicable 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’ (emphasis added). Neither of the methods identified by Ormiston JA go so far as the method adopted by Judge Pilgrim here.
The method adopted failed to reflect clearly the additional and separate criminality of the offences. In particular, it failed to identify the additional criminality beyond the circumstances of the conspiracy that arose from the discrete and unrelated conduct that led to charges 4 and 5 against Saner (the burglary of the City West Yamaha store at Hoppers Crossing where a metal pole was used to smash the store’s surveillance camera, a Toyota van was rammed into the front doors, and eight motorbikes were stolen).[159]
[159]See [26] above.
The method adopted by Judge Pilgrim was expressly disapproved of by Judge Howard when sentencing Murrell and Ngaa when he said:
In fixing sentences for both of you, I must have regard in your favour to the principles of proportionality and totality. The prosecution agreed that the sentences imposed upon Saner and Kamal were within appropriate range. The criminality occurred over a 19 day period and whilst there are good arguments for concurrency where offences were committed at the same time or in relation to the more significant offending, I will impose some orders for cumulation to reflect the commission of additional offences of a particular kind. …
…
… Saner and Kamal were not to be sentenced for the aggravated burglary matter and Saner co-operated with the authorities and gave an undertaking to give evidence against his co-offenders. Whilst I must consider parity issues generally when considering the offenders and roles played, and I have done that, at the end of the day, you and the other co-offenders have such different circumstances that different sentences are justified. I should note, respectfully, I disagree with the approach to cumulation adopted by the judge who sentenced Saner and Kamal.[160]
[160]The Murrell/Ngaa reasons, [97], [99]. See the orders his Honour made as reflected in the table, [57] above.
With great respect to Judge Pilgrim, I would also disagree with the approach to cumulation that he adopted.
I consider, however, that it is also clear from the approach adopted by Judge Pilgrim that the sentencing on charges 1 and 10 was material in relation to the sentences imposed on all the other charges. It follows that the sentencing discretion is entirely re-opened.
In my view, it is appropriate to make orders for cumulation, in particular with respect to the discrete and unrelated charges against Saner for the ramming of City West Yamaha store and the theft of the motorbikes (charges 4 and 5). It is also necessary, in sentencing in a conventional and appropriate manner, to make orders for cumulation that reflect an appropriate disparity between Saner and Kamal with respect to the co-operation Saner gave, and for which I have found he earned no or negligible discount, and an appropriate disparity between Murrell and each of Saner and Kamal given the differences in the levels of participation in the conspiracy. I note that Judge Howard made no order for cumulation against Murrell in respect of the charge of theft of the getaway car (charge 10) with which both Saner and Kamal were jointly charged and that was also an overt act of the conspiracy. It is also necessary for the sentence imposed on Kamal to avoid doubly punishing him in respect of the possession of the firearm (charge 11).
With these factors in mind, I would re-sentence Saner and Kamal as follows:
Charge on Indictment Offence Max Saner Kamal Sentence Cumulation Sentence Cumulation 1 Conspiracy to commit armed robbery [Crimes Act 1958 s 321(1)] 25 yrs 3 yrs and 9 mths Base 4 yrs Base 2 Theft
[Crimes Act 1958 s 74]10 yrs 18 mths 6 mths --- --- 3 Theft 10 yrs 18 mths 3 mths --- --- 4 Burglary
[Crimes Act 1958 s 76]10 yrs 18 mths 6 mths --- --- 5 Theft 10 yrs 18 mths 3 mths --- --- 6 Burglary 10 yrs --- --- 2 yrs 6 mths 7 Theft 10 yrs --- --- 2 yrs 6 mths 8 Burglary 10 yrs --- --- 2 yrs 6 mths 9 Theft 10 yrs --- --- 2 yrs 6 mths 10 Theft 10 yrs 18 mths Nil 18 mths Nil 11 Possess unregistered firearm whilst prohibited person
[Firearms Act 1996 s 5(1A)]15 yrs --- --- 1 yr 3 mths 12 Handle stolen goods
[Crimes Act 1958 s 88]
15 yrs 2 years 6 mths --- --- Summary offence 15 Deal with property suspected of being proceeds of crime
[Crimes Act 1958 s 195]2 yrs --- --- 6 mths Nil Summary offence 17 Deal with property suspected of being proceeds of crime 2 yrs --- --- 6 mths Nil Summary offence 29 Deal with property suspected of being proceeds of crime 2 yrs 6 mths Nil --- ---
Summary of Result (Saner) Total Effective Sentence: 5 years and 9 months’ imprisonment Non-Parole Period: 3 years and 6 months Pre-sentence Detention Declared: TBC s 6AAA Statement: TES of 7 years with NPP of 5 years Other orders: – All Victorian driver’s licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991
– Forensic sample retention order under s 464ZFB of the Crimes Act 1958– Forfeiture of specified property
Summary of Result (Kamal) Total Effective Sentence: 6 years 3 months’ imprisonment Non-Parole Period: 4 years 3 months’ imprisonment Pre-sentence Detention Declared: TBC s 6AAA Statement: TES of 8 years with NPP of 6 years Other orders: – All Victorian driver’s licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991
– Forensic sample retention order under s 464ZFB of the Crimes Act 1958
– Forfeiture of specified property including a revolver
Had Saner not pleaded guilty, I would have sentenced him to a total effective sentence of seven years with a non-parole period of five years, pursuant to s 6AAA of the Sentencing Act.
Had Kamal not pleaded guilty, I would have sentenced him to a total effective sentence of eight years with a non-parole period of six years, pursuant to s 6AAA of the Sentencing Act.
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