Seiler v The King
[2023] VSCA 171
•31 July 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0045 |
| ZAINE SEILER | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 July 2023 |
| DATE OF JUDGMENT: | 31 July 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 171 |
| JUDGMENT APPEALED FROM: | [2023] VCC 207 (Judge Gucciardo) |
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CRIMINAL LAW – Leave to appeal – Sentence – Sentencing judge erred in determining pre-sentence detention – Sentencing judge failed to accord applicant procedural fairness – Sentencing judge failed to apply principle of totality – Appeal allowed – Applicant resentenced.
Sentencing Act 1991, ss 16, 17, 18, 48CA.
R v Renzella [1997] 2 VR 88 considered. R v Broad [1999] 3 VR 31, Nov v The Queen [2020] VSCA 11, Kenyeres v The King [2023] VSCA 25 applied.
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| Counsel | |||
| Applicant: | Ms J McColl (solicitor) | ||
| Respondent: | Mr NA Hutton | ||
| Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Solicitor for Public Prosecutions | ||
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NIALL JA
WALKER JA:
The applicant pleaded guilty to a single offence of armed robbery in the County Court. On 16 February 2023 he was sentenced by that Court as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Armed Robbery 25 years 10 months’ imprisonment in combination with a Community Correction Order for a period of 2 years N/A Total Effective Sentence: 10 months’ imprisonment in combination with a Community Correction Order for a period of 2 years Non-Parole Period: N/A Pre-sentence Detention Declared: 103 days Section 6AAA Statement: Total Effective Sentence: 15 months
Non Parole-Period: N/A
Other Relevant Orders:
1. To complete 200 hours of unpaid community work and other rehabilitative conditions
The applicant now seeks leave to appeal his sentence, on two grounds:
(a)first, that the sentence imposed was manifestly excessive; and
(b)secondly, that the sentencing judge erred in considering the impact of a sentence served by the applicant for unrelated offending, whilst on remand for the present offending, should have on the sentence imposed by the judge, by:
(i)failing adequately to apply the principle of totality; and
(ii)failing to accord procedural fairness to the applicant.
The sentence for the unrelated offending had been imposed by the Magistrates’ Court on 10 January 2023 and was for a period of 3 months’ imprisonment.
The applicant also seeks an extension of time of seven days within which to bring his appeal; that application is not opposed, and we consider it appropriate in the circumstances to grant that extension.
At the hearing of the application for leave to appeal the respondent quite properly conceded that the trial judge had erred in relation to the sentence he imposed, by reason of a combination of two matters: that the judge had acted on a misapprehension as to the effect of the Magistrates’ Court sentence and by reason of the process adopted in relation to the effect of that sentence. Given that concession, which we consider to be correct, at the hearing of the appeal we made orders granting leave to appeal, allowing the appeal and sentencing the applicant as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Armed Robbery 25 years 8 months’ imprisonment in combination with a Community Correction Order for a period of 2 years N/A Total Effective Sentence: 8 months’ imprisonment in combination with a Community Correction Order for a period of 2 years Non-Parole Period: N/A Pre-sentence Detention Declared: 310 days Section 6AAA Statement: Total Effective Sentence: 12 months
Non Parole-Period: N/A
Other Relevant Orders:
1. To complete 100 hours of unpaid community work and other rehabilitative conditions
Factual background
The circumstances of the offending
The circumstances of the offending, about which there was no dispute, were set out by the sentencing judge. They were as follows.
On 26 March 2022 at about 4:20 pm the victim, who was a 13-year-old boy at that time, was sitting at a bus stop outside a shopping complex in Wendouree. He was with four friends: two young girls, aged 13 and 14; and two young boys, aged 13 and 14 respectively.[1]
[1]DPP v Seiler [2023] VCC 207 (Judge Gucciardo), [2] (‘Reasons’).
The applicant left the shopping centre and walked over to the victim and his friends at the bus stop. The applicant waited at the bus stop for a short time and then spoke to the victim. The victim was wearing a Nike cap, and the applicant asked him how much he was selling it for. The victim replied, ‘I'm not selling it’. The applicant then produced a small hunting knife with a silver blade and a wooden handle from his right sleeve and demanded the cap, saying, ‘You have two seconds to kick it over’. He then snatched the cap from the victim and ran back through the car park into the shopping complex, where he met up with another male, to whom he handed the cap, and an unknown female. The victim reported the matter to police in Ballarat.[2]
Events after the offending
[2]Reasons, [3].
Police sought and obtained relevant CCTV footage from the shopping complex and as a result identified the person to whom the applicant had handed the cap. They went to his address to search those premises and spoke to him and the cap was found under his bed. He identified the applicant as the person who had taken the cap.[3]
[3]Reasons, [4].
On 30 March 2022 the applicant attended the Ballarat police station in relation to an unrelated matter. He was identified as the offender in the armed robbery. He was then interviewed, charged and bailed. He made no comment in his interview. A committal mention was adjourned twice in June and July 2022 and on each occasion the applicant failed to appear.
Also in July 2022 the applicant committed additional offences, namely intentionally causing injury and affray (the ‘other offending’). The applicant had kicked the victim in the head and then punched the victim in the face and head multiple times. When the victim fell to the ground, the applicant again kicked the victim in the head and punched him two further times. The victim was dazed and unable to stand, and was bleeding from the nose and mouth. As a result of the assault, the victim had a cut on his head, a swollen lip, a wobbly front tooth and tenderness to his left ear, jaw and left cheek. He has reported that his memory has been vague since the attack and he continues to have nosebleeds.
On 7 August 2022 a warrant was issued for the applicant’s arrest as a consequence of the applicant failing to appear at the committal hearings, and the applicant was arrested and remanded in custody on that date.[4]
[4]Reasons, [5].
On 12 August 2022, while in custody for the present offending, the applicant consented to be interviewed by police in relation to the other offending. During the interview the applicant confessed to the other offending, stating that he had assaulted the victim because the victim had earlier assaulted his friend.
In relation to the present offending, the applicant was committed on a hand-up brief and indicated a plea of guilty. The plea proceeded before the sentencing judge on 25 November 2022.[5] However, the judge did not sentence the applicant on that date.
[5]Reasons, [6].
On 10 January 2023 the applicant pleaded guilty to the other offending, and was sentenced in the Magistrates Court. The sentence imposed for each offence was as follows:
Convicted and sentenced to an imprisonment term of 3 MONTHS.
This is part of an aggregate sentence.
Concurrent with other State sentences imposed in this case.
Effective total State term imposed is 3 months
Time held in custody, 90 days, reckoned as a period of imprisonment already served under this sentence.
But for the plea of guilty the sentence I would have otherwise imposed is 5 MONTHS.
PRESENTENCE DETENTION THAT HAS BEEN DECLARED IS BY REASON OF RENZELLA PRINCIPLES AND HAS REGARD TO REMAND DATE 8.8.2022.
The imposition of sentence for the present offending
The judge came to sentence the applicant on 16 February 2023. In the course of his Honour’s sentencing reasons, he observed as follows:
I was then properly informed that there is a subsequent matter before the Magistrates’ Court. These matters are yet to be resolved one way or another with plea negotiations of fact. While I note with concern these charges, they are said to arise some four months after this current offending with which I am dealing but I will not presume to speculate in any way about them or their ultimate disposition.[6]
[6]Reasons, [22].
In fact, as set out above, the matters before the Magistrates’ Court had been dealt with on 10 January 2023.
After outlining his reasons for sentence, which we will consider in some detail later, the judge pronounced a sentence of 10 months’ imprisonment to be followed by a community corrections order of two years, under which the applicant was to perform 200 hours of unpaid community work.[7] The judge declared that the applicant had served 193 days of pre-sentence detention, which he had noted in the records of the court.[8] Those 193 days were calculated by reference to the fact that applicant was arrested for the current offending on 7 August 2022 and remained in custody until sentence on 16 February 2023.
[7]Reasons, [27].
[8]Reasons, [29].
After some further exchanges with counsel that are not presently relevant, the judge left the bench at 10:16 am.[9]
[9]Reasons, [41].
At 10:30 am the sentencing judge returned to the bench.[10] The applicant was not in the court room at the time, having been earlier removed at the direction of the judge. The applicant’s barrister was also not present.[11] The following exchanges between the judge and the prosecutor occurred:
[10]Reasons, [42].
[11]Reasons, [62].
HIS HONOUR: There is an issue that has arisen in relation to the pre-sentence detention period. As far as I knew when this matter appeared before me for plea I was only told that it had not been resolved the Magistrates’ Court matter, and that it was going before a magistrate for a mention in early December. I now see that on 10 January 2023 at the Magistrates’ Court in Ballarat His Honour Magistrate Saines convicted Mr Seiler with intentionally cause injury and affray and sentenced him to three months’ imprisonment, an aggregate sentence concurrent with other State sentences imposed and he noted that the time held in custody, 90 days, reckoned as a period of imprisonment already served under that sentence, and he had in mind the remand date of 8 August 2022. From what I recall, the matters that those two charges are concerned with arose in July 2022 and that 8 August might have been the date at which Mr Seiler was arrested and placed into custody and remanded. It is noted by Mr Saines that pre-sentence detention has been declared by reason of Renzella principles, which I am not sure what that refers to. It might have been a reference to the fact that back in August but not the 8th, rather the 7th, the day before - - -
MS CARUSO: In any event, he was declared s18 pre-sentence detention. I am not sure what he means by Renzella where he has made a declaration.
HIS HONOUR: The chronology that I was given was that after July in which Mr Seiler failed to appear for committal mention he was arrested on warrant on the 7th.
MS CARUSO: That is right, Your Honour.
HIS HONOUR: And he was remanded, and that maybe is the date to which Magistrate Saines refers to as being the remand date, on the 8th.
MS CARUSO: Yes.
HIS HONOUR: The problem is that that remand date, 8 August, is the remand date, at least as far as I know, which primarily was related to this matter.
MS CARUSO: It is.
HIS HONOUR: The matter that I dealt with, and so the time that he was held in custody, that is 90 days, which His Honour has declared in relation to those matters, really overlaps with this time rather than the other way around, and I would have thought that given that this matter before me took place four months before, he may have been arrested and remanded on both matters simultaneously but does not this matter have some measure of primacy or priority in relation to this?
MS CARUSO: It ordinarily does, Your Honour, and I just cannot off the top of my head think of the case law, but there is some case law on this and it indicates that the [pre-sentence detention] must be taken into account in the first sentence that comes before the court.
HIS HONOUR: That is a problem.
MS CARUSO: And that is a problem with the other - - -
HIS HONOUR: The sentence that Magistrate Saines has imposed was in January.
MS CARUSO: That is right. So he had to take it.
HIS HONOUR: And so he has got to take it, as you say, and so that means because otherwise the 90 days completely overlap.
MS CARUSO: That is right.
HIS HONOUR: And in effect he ends up doing 90 days less, does he?
MS CARUSO: So, Your Honour is not able to take into account that 90 days. You have to reduce the pre-sentence detention.
HIS HONOUR: Yes.
MS CARUSO: But without his counsel and him being here that means that Your Honour has to take into account totality in terms of his total time and Your Honour may have reduced the total effective sentence — may have.
HIS HONOUR: I do not think that I would have but I am concerned to declare the right amount of time.
MS CARUSO: It is 90 days less.
HIS HONOUR: I do not have any idea in terms of a summary or in terms of what the intentionally cause injury or affray was like but for Magistrate Saines to have imposed three months it could not have been anything - even the injury could not have been that serious. However, because he has been able to manage to get that to court and have it dealt with by 10 January of this year, in effect he has used up those 90 days.
MS CARUSO: That is right.
HIS HONOUR: And I am left with 103 days rather than 193 days.
MS CARUSO: That is right.[12]
[12]Reasons, [43]–[63] (emphasis added).
At this point of the hearing it became apparent that the applicant’s instructor was present in the court room, and the following exchanges occurred:
HIS HONOUR: I will have my associate contact the instructor to see whether during the course of the day - you are not - are you here? You are the instructor.
MR MITRA: I am.
HIS HONOUR: I beg your pardon, I did not realise. You followed the discussion. I am sorry, I do not have your name.
MR MITRA: It is Mitra, Your Honour.
HIS HONOUR: Yes, Mr Mitra. You have followed the discussion.
MR MITRA: Yes, Your Honour.
HIS HONOUR: Perhaps the best thing right now would be, and I do not know whether Mr Seiler is still in the cells, he probably is because he would not have been already been transported back to wherever he needs to go. Perhaps the officer in the dock might be able to confirm that. Sorry, do you know whether Mr Seiler has already been taken back or is he still - - -
SECURITY OFFICER: No, he is not in the cell. He is waiting for the paperwork. So if the paperwork has not been delivered to him in custody he is still here.
HIS HONOUR: Good, all right. All right, thank you. I think it is important that he should be told that as a result of this overlap - first of all, do you agree with my conclusion about this?
MR MITRA: Yes, Your Honour.
HIS HONOUR: Yes. I do not intend to vary my sentence because he has done 90 days of the charges that Mr Saines dealt with in the Magistrates’ Court. It just means that he has 90 days, that is three months less on the pre-sentence detention that I have declared, back to 103 days, and that is something that he needs to know.
MR MITRA: Yes, Your Honour.
MS CARUSO: Yes, and just for clarity, Your Honour, I think the operation of the Act will mean that your sentence is concurrent with the sentence he is currently serving, so that will - no, he used 90 days. Sorry, it will be done.
HIS HONOUR: I think that the day starts today.
MS CARUSO: Yes.
HIS HONOUR: He has done 90 days.
MS CARUSO: It does. Sorry, I - - -
HIS HONOUR: And he has continued to serve some time so the continuation of that time from August last year until now picks up at the end of the 90 days and runs into this sentence, which is probably about four months or so, or a bit less, yes. Sometimes these things happen in this way but I do not think even taking into account totality - yes, I do not think that that would impact on the sentence and it does not at all because it seems to me that the measure of the sentence in the Magistrates’ Court is of a weight which indicates the kind of offending which it was and which does not impact on my sentence, which I think is appropriate. Did you represent him at the Magistrates’ Court?
MR MITRA: I was instructing on that matter, Your Honour, so I was present. Mr Hunter of counsel appeared on that day.
HIS HONOUR: I am not being critical. These overlaps happen quite often. It would have been preferable if I had been told about it before today in terms of the - do you remember, in essence, in the summary form, what the intentionally cause injury and affray was like? Was it a fight or something or - - -
MR MITRA: It occurred, Your Honour, at a bust stop in Ballarat where Mr Seiler attended and in response to something that he perceived the victim had said, he punched him several times.
HIS HONOUR: Was he on his own or was he with others?
MR MITRA: He was on his own, Your Honour.
HIS HONOUR: Right. Why was he charged with affray?
MR MITRA: There were a number of people I think - apologies, Your Honour, I believe that somebody had attended with him but was some way distant from the actual offence and Mr Seiler left the scene alone.
HIS HONOUR: In any event, do you recall the nature of the injuries? Was it - - -
MR MITRA: There was nothing substantial, Your Honour. There was a cut lip and there was no requirement for any medical attention.
HIS HONOUR: Yes.
MR MITRA: With respect, Your Honour, I must apologise that this was not shared with Your Honour. As I understand it from counsel who appeared before Your Honour at the plea, Your Honour wished to adjourn sentence until the matter had been finalised. At somewhere along the line, it has not been shared with Your Honour what the disposition was.
HIS HONOUR: I was told, I recall, that in November - sorry, that in December there was going to be something like the first or something like that, there was going to be a mention and that the resolution was still being discussed. So I expected some resolution perhaps to have been achieved but - and I repeat, I am not being critical. I know that these overlaps happen from time to time but it would have been helpful to me to know what the outcome of 10 January disposition had been and I would have been able then to consider it, but having looked at the order and having now been told what the matter was about, it seems to me that even then applying the matters of totality to the sentence, given the time assigned by the magistrate to that particular series of offences, that that would not have made a difference to my sentence. It is just important that Mr Seiler is told that the time that he has spent from August 90 days forward really dealt with that matter and that the sentence which he is now undertaking begins thereafter, leaving him 103 days by way of pre-sentence detention.
I will instruct the transcribers to transcribe this particular discussion that I have had with the learned prosecutor and with yourself, Mr Mitra, so that the sentence reflects these comments that have been made and are part of the sentencing disposition. I think it is important to record how the pre-sentence detention has been arrived at.
MR MITRA: Thank you, Your Honour.
HIS HONOUR: Thank you for your attendance.[13]
[13]Reasons, [69]–[101] (emphasis added).
Following those exchanges, the applicant was brought back into the court room, and the following exchanges occurred:
HIS HONOUR: … Mr Seiler, I have had you brought back in court because there is something that I need to correct. Apparently, you were at the Ballarat Magistrates’ Court on 10 January of this year and Magistrate Saines sentenced you to 90 days for intentionally cause injury and an affray. You remember that?
OFFENDER: Yes, Your Honour, yes.
HIS HONOUR: Then he calculated that period of time, those 90 days, based on the time that you had already been in custody from when you had been remanded in August of last year, and so that time was already served in effect by a portion of your remand. So what remains then for this sentence is not 193 days because 90 of those days that the sentence that the magistrate gave you, has to be subtracted from that. Do you understand?
OFFENDER: Yes.
HIS HONOUR: So instead of 193 days in relation to the sentence that I gave you this morning for the armed robbery, it is actually 103 days pre-sentence detention. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Yes. I have considered the impact of that on my sentence and it has not changed the outcome but I thought it was important for you to understand in the calculation of the time that you have spent that goes towards that 10 months before you are released on a community corrections order, that that is why it is 103 rather than 193. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Do you have any questions?
OFFENDER: No, Your Honour.
HIS HONOUR: Thank you. You can go. All right, thank you, Mr Mitra. You are excused.[14]
[14]Reasons, [103]–[113] (emphasis added).
Relevant legislative provisions
Under s 17(1) of the Sentencing Act 1991, if an offender is in custody, a sentence of imprisonment commences on the day that it is imposed, subject to ss 16 and 18 of that Act.
Section 16 provides that, unless a court otherwise directs, every term of imprisonment imposed on a person must be served concurrently with any uncompleted sentence or sentences of imprisonment (subject to various exceptions that are not presently relevant).
Section 18 is headed ‘Time held in custody before trial etc. to be deducted from sentence’. It relevantly provides as follows:
(1)If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to—
(a) proceedings for the offence; or
(b)proceedings arising from those proceedings including any period pending the determination of an appeal—
must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.
(2) Subsection (1) does not apply—
…
(d)to a period of custody previously declared under this section or section 35 as reckoned to be a period of imprisonment or detention already served under another sentence of imprisonment or detention or Court Secure Treatment Order imposed on the offender.
Principles relevant to the determination of pre-sentence detention under s 18
In many cases the calculation of pre-sentence detention is straightforward. However, in cases where an offender is sentenced for different offences at different times, and has spent time in custody on remand, the determination of pre-sentence detention can be more complex. This case is of the latter kind.
The authorities to which we were helpfully referred by counsel establish that, in cases of the latter kind, for the purposes of determining pre-sentence detention under s 18(1), it is necessary to distinguish between two different sets of circumstances:
(a)where, during a period of remand, a prisoner serves a sentence imposed for other offences, the period served under that sentence does not count as pre-sentence detention for the purposes of the sentence imposed for the remand offences;[15] and
(b)where an offender is serving two concurrent sentences for different offences, in the event of the offender being resentenced (on appeal) on one of those offences, the entire period counts as pre-sentence detention for the purposes of that sentence.[16]
[15]R v Broad [1999] 3 VR 31, [11] (Tadgell JA agreeing at [14], Chernov JA agreeing at [15]); [1999] VSCA 149 (‘Broad’); see also Nov v The Queen [2020] VSCA 11, [6], [14]–[27] (‘Nov’).
[16]Director of Public Prosecutions v TY[No 2] (2009) 24 VR 705; [2009] VSCA 226 (‘TY’); Younger v TheQueen [2017] VSCA 199, [68]–[70] (‘Younger’); Nov [2020] VSCA 11, [6], [14]–[27].
We observe that in Nov this Court said that ‘it may be that this issue should be re-considered’, and that there ‘may be seen to be tension between the express words of the legislation and the decisions in Younger and TY on the one hand, and Broad on the other’.[17] However, in Nov the Court did not consider it appropriate to reconsider the issue because both parties took the position that Broad should be applied. The same must be said in the present case: this Court was invited to proceed on the basis that the distinction set out above, which accepts the correctness of Broad, Younger and TY, should be applied.
[17]Nov [2020] VSCA 11, [30].
It is also relevant to observe that an error in the determination of pre-sentence detention is not, of itself, a sentencing error. The error does not affect the validity of the sentencing decision itself. That is because a declaration of pre-sentence detention is not part of the sentence imposed but rather an official statement of time served under the sentence.[18]
[18]Nov [2020] VSCA 11, [1]; TY (2009) 24 VR 705, 717 [51]; [2009] VSCA 226.
Ground 2
By ground 2, the applicant contends that the sentencing judge erred in his consideration of the impact of the Magistrates’ Court sentence served by the applicant whilst on remand in two ways:
(a)first, by failing adequately to apply the principle of totality; and
(b)secondly, by failing to accord procedural fairness to the applicant.
As we observed above, at the hearing of the appeal the respondent conceded that the trial judge had erred because of a combination of two matters: by reason of a misapprehension as to the effect of the sentence imposed by the Magistrates’ Court and by reason of the process adopted in relation to the effect of that sentence after the judge returned to the bench at 10:30 am. Notwithstanding that this was the subject of a concession by the respondent, it is appropriate for us to briefly explain why we accept that concession to be correct.
It is appropriate to start with a consideration of the order made by the Magistrates’ Court (which we have set out in full above). There are three relevant aspects of that order:
(a)first, the magistrate sentenced the applicant to a period of imprisonment of 3 months for the other offences;
(b)secondly, the magistrate then ordered that ‘time held in custody, 90 days, be reckoned as a period of imprisonment already served under this sentence’;
(c)thirdly, the magistrate recorded in the order that the ‘presentence detention that has been declared was by reason of Renzella principles and has regard to remand date 8.8.2022’.
The parties submitted, and we accept, that the magistrate had no power to declare the period of 90 days that the applicant had already spent in custody to be pre-sentence detention. That is because the applicant was not, in the period prior to the sentence imposed by the magistrate, held in custody in relation to the charges that were dealt with by the Magistrate. He had been on bail for those offences, but detained in custody on remand for the present offences. That is, s 18(1) did not apply to require (or permit) that period of detention to be reckoned as a period of imprisonment already served in respect of the sentence imposed by the magistrate.
The magistrate, perhaps aware of this, purported to declared pre-sentence detention in reliance on what his Honour terms the ‘Renzella principles’, being a reference to the decision of this Court in R v Renzella.[19] However, in our opinion the magistrate misunderstood what this Court said in Renzella. The Renzella discretion is enlivened in circumstances where there is a prior period of imprisonment that does not fall within s 18(1). In those circumstances Renzella permits (or perhaps obliges) a court, in the exercise of its discretion, to take into account such a period in determining the appropriate sentence to be imposed.[20] The Renzella discretion does not permit time already spent in custody, which does not fall within s 18(1), to be reckoned as a period of imprisonment already served (which is what the magistrate purported to do).
[19](1997) 2 VR 88 (‘Renzella’).
[20]Renzella (1997) 2 VR 88, 96. We note that there is some debate about whether the Renzella discretion is better understood as a particular application of the principle of totality: see, eg, Lowell (a pseudonym) v The Queen [2022] VSCA 134, [33]. It is not necessary for us to enter into that debate in the present case.
The effect of the above analysis is that the 3 month sentence imposed by the magistrate commenced on 10 January 2023 (in accordance with s 17 of the Sentencing Act) and there was no pre-sentence detention. As noted above, an error in the determination of pre-sentence detention is not, of itself, a sentencing error and does not affect the validity of the sentencing decision itself. Neither party sought to contend that the magistrate’s implicit misunderstanding of Renzella vitiated the sentence, and we note that no appeal was brought from that sentence. In the result, both parties were content to proceed on the basis that the sentence of 3 months imposed by the Magistrates’ Court was not infected or invalidated by the magistrate’s error in relation to pre-sentence detention. In the circumstances we regard it as appropriate to proceed on that agreed basis.
Turning then to the sentence imposed by the judge, the consequence of that conclusion is that, although the sentencing judge was correct that the 193 days that he had declared as pre-sentence detention was incorrect, his conclusion that the pre-sentence detention was 103 days was not correct. That is because as at 16 February 2023, the applicant had spent the following periods in custody:
(a)from 7 August 2022 to 9 January 2023 (a period of 156 days) the applicant was in custody on remand for the present offending — and all of this period was pre-sentence detention under s 18(1); and
(b)from 10 January 2023 to 16 February 2023 the applicant was in custody both on remand for the present offending and by reason of the sentence being served for the other offences — and none of this period was pre-sentence detention, by reason of the decision of this Court in Broad.
Thus the correct period of pre-sentence detention as at 16 February 2023 was 156 days, not 103 days.
Without more, that error would not have constituted a sentencing error, for the reason explained above. However, when that error is combined with the error in the process the sentencing judge adopted to deal with the impact of the Magistrates’ Court decision, we consider that appellable error is established (as conceded by the respondent).
In summary, we consider that there was a denial of procedural fairness in the manner in which the sentencing judge dealt with the impact of the Magistrates’ Court sentencing disposition. That is because the principle of totality required that the judge consider the impact, if any, of the period in custody that did constitute pre-sentence detention under s 18 on the sentence to be imposed on the applicant for the present offending, and whether the sentence to be imposed ought to be concurrent with, or cumulative upon, the Magistrates’ Court sentence.[21] However, the judge did not provide a real opportunity for the applicant (or his legal representatives) to address the Court on these issues. Rather, his Honour reached the conclusion that the Magistrates’ Court disposition made no difference to the sentence he had previously imposed; but he did so on a misapprehension as to the nature and effect of that sentence.
[21]See paragraph 44 below.
In particular, we note the following matters:
(a)First, both the judge and the prosecutor were aware that neither the applicant nor his counsel were present — indeed the prosecutor drew the judge’s attention to their absence;[22] and the judge also appeared to think that the applicant’s solicitor was not present. Nonetheless, the judge and the prosecutor engaged in some relatively extended discussion about the impact of the new information on the sentence the judge had imposed.
(b)Secondly, the prosecutor quite properly submitted that the judge was required to take into account the principle of totality, and that his Honour ‘may have reduced the total sentence’. At this point the judge said that he did not ‘think’ that he would have done so, and indicated that his real concern was to declare the correct number of days for pre-sentence detention. That was apt to invert the correct order of things: Renzella time in custody was relevant to the sentence to be imposed, whereas the calculation and declaration of pre-sentence detention is an empirical exercise to be applied once the sentence is imposed.
(c)Thirdly, upon becoming aware that the applicant’s solicitor was present in the court room, the judge said that it was important for the applicant personally to be informed of the effect of the ‘overlap’ (that is, the consideration of the 90 days as pre-sentence detention by the magistrate), and then asked the solicitor if he ‘agreed with’ the judge’s ‘conclusion’. After the solicitor said ‘yes’ to the judge’s question, the judge more formally stated that he did not intend to vary the sentence.
(d)It was only after these events that the applicant was brought back into the courtroom and the effect of the Magistrates’ Court disposition explained to him.
[22]Reasons, [62].
In our opinion, the above sequence of events constituted a failure to afford the applicant a proper opportunity to make submissions about the effect, if any, the Magistrates’ Court disposition ought to have on the sentence the judge had imposed once the true import of the magistrate’s orders was appreciated. The new information that had come to light was significant and, as the prosecutor properly informed the judge, consideration of the principle of totality might have made a difference to the judge’s sentence. Yet most of the discussion of the effect of the Magistrates’ Court disposition occurred in the absence of the applicant or his counsel, and with the judge failing to realise that the applicant’s solicitor was present.
While it might be said that the applicant had an opportunity to make submissions at the point in time at which the judge asked the solicitor if he agreed with the judge’s conclusion, in our view that would be to mischaracterise what had occurred. By that time, the judge appeared to have formed a view. Further, the prosecutor had referred both to the existence of relevant case law, and to the need for a consideration of totality. In those circumstances, it was necessary for the applicant to have been given an opportunity to make submissions about those matters.
In light of our conclusion that there was a breach of procedural fairness, it is unnecessary to consider whether the first aspect of ground 2 is made out: namely, that the judge erred in relation to the application of the principle of totality. However, we make the following observations.
As explained above, it is clear that the period of detention the applicant was serving for the other offences while on remand for the present offending is not within the scope of s 18 of the Sentencing Act. However, as this Court observed in Kenyeres v The King, ‘time spent in detention prior to sentence for unrelated offences (and therefore not within the scope of s 18 of the Sentencing Act) must be factored into the sentencing synthesis’.[23] That is so whether it be regarded as an aspect of the principle of totality or whether it is an application of what is known as the ‘Renzella discretion’.[24] Furthermore, once it is appreciated that, as at 16 February 2023, the applicant was in the process of serving the Magistrates’ Court sentence, it was necessary for the judge to take that into account in determining the appropriate sentence for the present offending.
[23][2023] VSCA 25, [64] (T Forrest and J Forrest JJA) (‘Kenyeres’).
[24]See Renzella (1997) 2 VR 88. As this Court pointed out in El Waly [2012] VSCA 184, [111], the ‘label affixed’ to consideration of such detention does not matter. See also Kenyeres [2023] VSCA 25 [62] (T Forrest and J Forrest JJA); Buddle v The Queen [2014] VSCA 232, [42] (Neave and Priest JJA).
In our view his Honour erred because he did not properly consider the principle of totality in relation to the period of imprisonment for the other offending. Rather, he simply undertook a mechanical exercise of reducing the declaration of the number of days served as pre-sentence detention (which, as it transpired, was itself in error). But it was necessary for the judge to consider whether, pursuant to the principle of totality, the sentence he had imposed on the applicant ought to be different by reason of the time served in relation to the other offending and by reason of the fact that that sentence was ongoing.
Resentencing
Given that we have upheld ground 2, it is necessary for this Court to resentence the applicant, by reference to all of the matters considered by the sentencing judge, together with the effect of the time served for the other offending.
It is appropriate to commence by setting out the substance of the sentencing judge’s reasons for the sentence he imposed, which were relevantly as follows.
Armed robbery is a serious criminal offence carrying as it does a maximum penalty of 25 years’ imprisonment. It is an offence which can occur in a variety of circumstances, which sit on a broad spectrum of objective seriousness. Your offending, in my view, lies towards the lower end of such a spectrum. However, that is not to devalue some of its aspects which are nevertheless serious.
Your victim was a young person who was entitled to go about his day without threat of violence, fear or force. You armed yourself with a knife and acted in public in a brazen and aggressive manner in daylight. He was a vulnerable victim and you took advantage of the circumstances to steal a cap by the use of a knife. It is cowardly, shameful behaviour. When asked if you had any comment on the victim’s age you answered, ‘Nah’, and any comment on the victim, you had nothing to say when asked how you thought he might have felt, probably because you had no insight into the fear you caused him. You answered with no comment answers except at one point to say the circumstances to which you have now pleaded were a load of bullshit.
This kind of offending is of concern to the community for the terror and fear it causes, its prevalence and it looks to the court to deter likeminded individuals and punish justly offenders who behave in this way, to denounce their conduct and protect the community from such wanton criminality. The court did not receive a victim impact statement, but I conclude reasonably that the young victim would have been impacted by the threat and aggression offered, particularly the production of the knife, and that such impact would not be just momentary but relatively ongoing.
The offence was not entirely spontaneous. You had a knife with you and you had been asked by another male to do it some time before. There is no evidence that you armed yourself for this purpose as opposed to you having carried a knife for your own reasons on that day. The fact remains that you then produced to the target victim a knife and robbed him whilst brandishing the weapon. There was a measure of premeditation in this action and your moral culpability for the offending is accordingly substantial.
I take your plea into account despite your failure to appear twice at committal mention and being arrested on warrant. You were committed on a straight hand-up brief and you pleaded guilty, being the earliest opportunity before a court. The plea will reduce your sentence. The plea has a utilitarian value of having avoided a criminal trial. Further, it was made at a time of pandemic when the criminal justice system has been severely impacted and which has delayed justice outcomes. The plea therefore facilitates the delivery of justice in resolution of this matter. It was made at a time at which the prospect or likelihood of reclusion was also impacted by the pandemic and your consequent remand has meant that the flow-on effect of the pandemic on correctional services has also been severely affected.
The court then, pursuant to Worboyes, should and will assign a more palpable and evident reduction in recognition of the time of the plea during a time of much greater isolation, lockdowns or restrictions and limitations on movements, on visits, on programs and all other aspects of imprisonment.
I take your personal circumstances into account. You are 19 years old and have a background which is problematic and significantly deprived. You were born in Ballarat and you have an older sibling. Your parents separated when you were a baby and you did not have any contact with your father until aged 12. You have half siblings as a result of your parents re-partnering. You reported having been a heroin addicted baby. You were living with your mother in your earlier years with your stepfather, whom you came to hate. You were beaten and physically abused and you have not seen your siblings for about four years.
You lived with your father for 12 months. When the care package benefit ran out your father assaulted you and kicked you out of home. He had been in prison often and was a drug user and violent offender. You have been taken off your parents by DHS and were a child protection client and placed briefly into residential care. You have, however, a closer relationship with your father currently and your stepmother, Kelly. Aged 10, there exists documented concerns about your safety in the family with suicidal ideation. In 2013 you were seen in the infinite Child Mental Health Services by a social worker after your mother and stepfather referred you. A diagnosis of ADHD and oppositional defiance disorder was noted at that time, as well as concerns about parental substance abuse and parenting practices. She concluded you were socially isolated and sad with no positive connection to peers, with zero friendships. Your behaviour at school was also subject of comment. By age 11 you were using methylamphetamine, you experienced bullying at school as well as mental disturbances. You also started smoking cannabis primarily in order to make friends.
Through Berry Street Child and Family Services you were placed in residential care. By 2016 you reported bullying and a decline in self-esteem, increasing learning difficulties and a decline in educational development. A paediatrician, Dr Jenner, noted the increasing evolution of recurring physical ticks, consistent with Tourette’s Syndrome. The doctor found severe emotional disturbance. Your schooling ended by Year 10. A year later Dr Jenner found destructive behaviour and general decline with risk taking activities and it is at this time you first appear in the Children’s Court, May and November 2017 for burglary and theft, going equipped to steal. You were placed on probation for six months as well as criminal damage and property destruction, again being placed on probation and intentionally damaging property and cannabis use. Matters adjourned for three months upon a good behaviour bond.
In October 2019, aged 16, Alison Mynard, a clinical psychologist, assessed you and found you met the diagnostic criteria for ADHD and symptoms of post-traumatic stress disorder but that your behaviours and symptoms were more consistent of a very traumatised and fearful child. In June of the next year, 2020, you appeared at the Ballarat Children’s Court, again charged with burglary and theft, criminal damage, going equipped to steal, possession of a controlled weapon and recklessly cause injury and property destruction. The court, without conviction released you on a youth supervision order for 12 months to engage in unpaid community service. The outcome reflects your positive engagement and compliance with supported bail through Youth Justice, which I will mention again later. You volunteered at the Redline Raceway and participated in leadership camps.
Despite these games [sic] you recommenced using methylamphetamine and cannabis. Your situation became unstable with no stable accommodation. While in Melbourne you were raped by a male. In 2019 you told Ms Mynard you felt safe in Youth Detention and liked being there. This is your first time in adult custody. Alison Mynard wrote a report dated 19 September 2022 for the court. She outlined your background and family dynamic and educational history, including that you struggled to read. You did go to trade school, she writes, and have had five jobs as a carpenter with the longest job lasting a year. Since mid-August 2022 you have been in a relationship and had difficulties contacting her from custody. Alcohol use escalated from 2019 and you had started again using large quantities of ice regularly as well as Xanax every day.
You presented to her as, ‘highly avoidant and defensive’, angry and distractible, emotionally very young, saying you loved being in custody. Low in your cognitive function and extremely emotionally immature. You showed no insight into your offending and no remorse at all. Your judgment in terms of the offending was extremely impaired. Mynard outlined your mental health and psychological history including past trauma due to extreme physical abuse when you were a child by your mother and stepfather. This has led to recurring avoidance symptoms of post-traumatic stress disorder and irritability and anger. You describe you were raped at the hands of a junkie in paragraph 33 of her report. You are still fearful of this man. Having been exposed to interpersonal trauma as a child you are unable to complete developmental tasks in adolescence and your symptoms diagnosed as complex post-traumatic stress disorder, meaning you re-experience trauma and you experience emotional dysregulation, negative self-concept and interpersonal difficulties. You reported being always angry, and this is made worse by some ADHD symptoms, as outlined in paragraphs 41 and 42 of her report. You present with traits of antisocial personality disorder. You lack empathy for your victims. You are not remorseful. You are impulsive, very irritable, blatantly disregarding the safety of others, show patterns of irresponsibility. You are not currently medicated and you told Mynard that your mate sent you to get the hat. You told her you do not care about life anymore. You do not appear to recognise that your behaviour has consequences for others as well as yourself and this behaviour is very serious. You are focused on your own survival and immediate gratification. Ms Mynard opines you are in danger even at your young age of being institutionalised and your future prospects are conditioned upon case management, psychological treatment with a trusted counsellor and abstinence from drugs and a medication regime.
The current obstacles outlined in paragraphs 63 and 64 appear significant and your prospects currently of rehabilitation must be guarded. Dr Loretta Evans also provided a detailed neuropsychological report. She recited your medial history, including alcohol and substance abuse, your background and family history, psychotic history generally, summarising past reports augmented by your current reporting. As to your offending behaviour you said, ‘I was asked to and I do what I’m asked to do’. To some extent struggled to define the difference between right and wrong. Not only did you display minimal appreciation of the impact of your actions and lack of empathy, but you could not offer any assurances that you would not re-offend in the future.
You denied that in your present remand you have any concerns for your safety or capacity to engage with others. Much of Dr Evans’ report echoed the concerns and views expressed by Ms Mynard. Dr Evans administered a number of diagnostic tests outlined in paragraph 21 and onwards. In her opinion it is possible that an underlying neuro-developmental disorder has occurred but this is too speculative in nature. She opines your cognitive profile does not meet the criteria for ADHD. She concurs that you lack complete remorse and regret, which is the most concerning aspect of your presentation and that the most prevailing element of your presentation is your exposure to trauma and abuse and likely development of complex PTSD symptoms which have progressed to entrenched antisocial personality traits which now dominate your presentation.
This neuro-developmental disorder’s main elements in this personality trait is coupled with chronic drug use, which was present at the time of your offending and which remains enduring and permanent in nature. There is insufficient evidence to indicate the presence of an intellectual disability. Intoxication is, in her view, the key contributor to the offending, impacting on your decision-making process. And to the likelihood deterioration whilst in prison Dr Evans noted that an appreciable decline from a cognitive prospective would not be anticipated. She would recommend psychiatric monitoring to ensure your mental state does not deteriorate. Without this there is a heightened risk of emotional mental health decline whereby harm to self and others potentially would increase. She recommends psychiatric treatment but is pessimistic about your capacity to engage or benefit from therapeutic interventions to assist your prospects of rehabilitation, which she writes are, ‘extremely doubtful at this point in time’, with the risk for recidivism being presently extremely high.
During your plea it was said that you had utilised your time in custody productively through employment and education in various jobs and courses. See paragraphs 31 and 32 of the defence submissions. You were also on the waiting list for drug rehabilitation programs run by Caraniche, a traffic management course and a tradies maths. … It was acknowledged that general deterrence and community protection are of significance for armed robberies of this ilk and offences involving street violence, but it was said that your background should moderate the moral culpability attaching to your conduct. I accept that the Bugmy principles apply to your case to reduce your moral culpability, impacting on these two sentencing principles. They, however, remain relevant as does specific deterrence. Given your prior history and the matters raised in the reports tendered, particularly as to remorse and empathy.
The most relevant and difficult factor is your youth. You are a young offender within the meaning of s3 of the Sentencing Act and the well understood principal applicable to youth offenders should apply to you. Rehabilitation and reclamation may be difficult and guarded. The road ahead for you may well be fraught with uncertainty, but the policy of the criminal law is to rehabilitate if possible and reform a youthful offender, which is a valuable endeavour for the offender and in the long terms for the community. The offence of itself lies as it does in the lower part of the spectrum of armed robbery and should not be overwhelmed by the assessment of your prospects. The court, in my view, despite a pessimistic outlook, should be slow to claim that you are incorrigible and recidivism is inevitable for you. It is true that the primacy of youth is not inviolable and must at times take a back seat in the evaluation of an appropriate sentence but its mitigatory consideration is not extinguished here. It would be unjust to consider rehabilitation as unrealistic. See Azzopardi.
This conclusion is bolstered in part by the supervised bail progress report of April 2020, which was tendered. It pertains to your appearance at the Ballarat Children’s Court in April 2020. In January 2020 you had been released on youth supervised bail. You attended all the scheduled appointments with Youth Justice. You resided with your stepmother and are no longer engaged with child protection. You complied with your bail conditions and engaged positively with educational and employment prospects. Your presentation and attitude improved. This probably occurred because you established a trusted relationship with support people.
I received an assessment by the Mental Health Advice Response Service of the County Court dated 1 December 2022 and the author, Ms Hughes, wrote that you would reside with your parental Aunt Emily upon your release and that she may be able to facilitate your employment. You appeared well settled into our prison environment. You were willing to engage with mental health clinicians to address your diagnosed symptoms and it was recommended you access ongoing psychiatric and psychological treatment as part of any correctional order. Your assessment by Community Corrections found you suitable, although a high risk offending and you indicated you consent to a community corrections order.
I have considered this disposition at length, mindful of the effect of a youthful offender in adult prison. I do not hold that a combination sentence is inappropriate as it provides for significant punitive sanctions as well as leaving open pathways to rehabilitation.[25]
[25]Reasons, [7]–[26].
There was no challenge to any of the judge’s factual conclusions.
We commence our consideration of the appropriate sentence with the observation that, in our opinion, and contrary to the applicant’s submissions on ground 1, a custodial sentence is required in the present circumstances. Although the offending was at the lower end of the spectrum of objective seriousness for armed robbery, the victim was a child and the applicant used a knife and committed the offence in broad daylight in an aggressive manner. There was some measure of premeditation, and the applicant’s moral culpability was high. Furthermore, the applicant lacked both remorse and insight into the effect of the offending on the victim. In these circumstances we consider that the need for both specific and general deterrence warrants a period of imprisonment, particularly given the applicant’s prior criminal history.
However, we accept the applicant’s submission that it is appropriate to minimise the period of imprisonment for a young offender who has not previously been imprisoned. That is particularly so in relation to a young offender for whom the Bugmy principles are engaged. The judge described the applicant’s prospects of rehabilitation as ‘guarded’,[26] suggesting that there is some prospect for rehabilitation, particularly in light of his previous compliance with supervised bail. His rehabilitation, and the objective of community protection, will be better advanced by a shorter period of imprisonment. It is also appropriate to recognise the applicant’s plea of guilty, which is to be given greater weight because it was entered during the COVID-19 pandemic.[27]
[26]Reasons, [19].
[27]Worboyes v The Queen [2021] VSCA 169, [35]–[39] (Priest, Kaye and T Forrest JJA).
We have also taken into account the fact that the applicant has spent a period of time in custody for the other offending that does not count as pre-sentence detention pursuant to s 18(1) of the Sentencing Act. As discussed above, this period must be factored into the sentencing synthesis. In that context it is relevant to consider the totality of the two episodes of offending. The other offending was serious, involving as it did the physical assault of the victim. Likewise, the present offending was serious, involving the armed robbery of a minor. Nonetheless, some degree of concurrency for the two sentences is appropriate.
We consider that a combination sentence is appropriate, as did the sentencing judge. A community corrections order, coupled with unpaid work, provides an opportunity for a degree of supervision of the applicant that will enhance his prospects of rehabilitation, as the respondent submitted. The applicant was assessed for a community corrections order and a report was provided to the Court confirming his suitability for that order.
The applicant submitted that if this Court decided to impose a community corrections order, we ought not include a condition of unpaid community work, because that would be to impose additional punishment in circumstances where the applicant will likely have already served whatever sentence this Court imposes. That would be so if we did not vary the sentencing judge’s period of imprisonment, in which case the ‘dead time’ (that is, time served in custody in respect of matters in relation to which his sentence was later reduced[28]) would be approximately 10 days; and if we were to reduce the period of imprisonment, the ‘dead time’ would be even greater.
[28]Karpinski v The Queen (2011) 32 VR 85, 91 [28]–[29] (Tate JA, Mandie JA agreeing at [9]).
In our opinion, a term of imprisonment of 8 months is appropriate, coupled with a community corrections order for a period of 2 years with 100 hours of unpaid community work.
We observe that s 48CA of the Sentencing Act permits this Court to order that some or all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. The report provided to the Court recommended that such an order be made, as an incentive for Mr Seiler to participate in the treatment and rehabilitation conditions of his order. In light of that recommendation, we consider it appropriate to order that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition, pursuant to s 48CA.
It is necessary now to return to the question of the correct calculation of the applicant’s pre-sentence detention, in light of the principles set out above. In that regard, the applicant was in custody as follows:
(a)from 7 August 2022 (when he was arrested and remanded to custody) to 9 January 2023 (inclusive), the applicant was in custody only because he was on remand for the present offending;
(b)from 10 January 2023 (when he was sentenced by the magistrate) to 15 February 2023, the applicant was in custody because he was on remand for the present offending and he was serving a sentence of imprisonment for the other offending;
(c)from 16 February 2023 (when he was sentenced by the judge) to on or about 10 April 2023 the applicant was in custody because he was serving a sentence for the present offending and he was serving a sentence of imprisonment for the other offending; and
(d)from on or about 11 April 2023 to 19 July 2023 (the date on which this Court sentenced him), the applicant was in custody only because he was serving a sentence for the present offending.
It is clear and uncontroversial that both the first period identified above and the last period identified above constitute pre-sentence detention under s 18(1). What is less clear, although also ultimately not in dispute between the parties, is the manner in which the second and third periods identified above are to be treated. But, applying the authorities to which we were referred, the applicant’s pre-sentence detention, as agreed by the parties, is as follows:
(a)from 7 August 2022 to 9 January 2023 (inclusive), the applicant’s detention was pre-sentence detention for the present offending under s 18(1) of the Sentencing Act;
(b)from 10 January 2023 to 15 February 2023 (inclusive), the applicant’s detention was not pre-sentence detention for the present offending under s 18(1) of the Sentencing Act; and
(c)from 16 February 2023 to 19 July 2023, the applicant’s detention was pre-sentence detention for the present offending under s 18(1) of the Sentencing Act.
The effect of this is that the applicant’s pre-sentence detention is 310 days (including 19 July 2023, the date on which we pronounced the sentence).
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