Shane Hodgson v The Queen
[2021] VSCA 73
•26 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0188
| SHANE HODGSON | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | BEACH, EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 February 2021 |
| DATE OF JUDGMENT: | 26 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 73 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1441 (Judge Lacava) |
---
CRIMINAL LAW – Appeal – Conviction – Applicant and co-offender convicted of 13 charges of theft, aggravated burglary, causing injury intentionally, common law assault, false imprisonment – Applicant also convicted of arson – Whether guilty verdicts unreasonable or cannot be supported having regard to the evidence – Circumstantial case including mobile phone, vehicle, eyewitness, DNA and firearm evidence – Evidence not to be assessed in piecemeal fashion – Evidence against co-offender compelling – Evidence established that applicant linked to co-offender – Leave to appeal conviction refused – Criminal Procedure Act 2009 s 276 – R v Hillier (2007) 228 CLR 618 applied.
CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 9 years 6 months’ imprisonment with non-parole period of 6 years 6 months – Whether judge erred in exercise of discretion to have regard to time spent serving sentence for other offending – Whether judge erred in application of principle of totality – Whether individual sentences and order for cumulation offend principle of parity having regard to co-offender’s sentence – Whether judge erred in failing to moderate general deterrence – Whether sentence on charge of aggravated burglary, orders for cumulation and non-parole period are manifestly excessive – Leave to appeal sentence refused – R v Renzella [1997] 2 VR 288 distinguished.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Connelly | Stary Norton Halphen |
| For the Respondent | Mr C Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
EMERTON JA
SIFRIS JA:
Introduction
On 12 July 2018, Shane Hodgson (the ‘applicant’) and Andreas Sianas (the ‘co-offender’) were convicted in the County Court by the jury empanelled on their trial on 13 charges: theft, aggravated burglary, two charges of intentionally causing injury, three charges of common law assault and five charges of false imprisonment. The applicant was also convicted of one charge of arson.
The applicant’s and co-offender’s pleas were heard on 27 June 2019 and they were both sentenced on 3 September 2019 as follows.
The applicant Charge on Indictment Offence Legislation Maximum Sentence Cumulation 1. Theft s 74 Crimes Act 1958 10 years 6 months 2. Aggravated Burglary s 77 Crimes Act 1958 25 years 6 years Base 3. Causing injury intentionally s 18 Crimes Act 1958 10 years 2 years 1 year 4. Common law Assault Contrary to Common Law 5 years Dismissed 5. Common law Assault Contrary to Common Law 5 years Dismissed 6. Common law Assault Contrary to Common Law 5 years Dismissed 7. Common law Assault Contrary to Common Law 5 years Dismissed 8. False Imprisonment Contrary to Common Law 10 years 1 year 9. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 10. False Imprisonment Contrary to Common Law 10 years 1 year 3 months
11. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 12. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 13. Causing injury intentionally s 18 Crimes Act 1958 10 years 30 months 6 months 14. Arson s 197 Crimes Act 1958 10 years 30 months 1 year Total Effective Sentence: 9 years and 6 months’ imprisonment Non-Parole Period: 6 years and 6 months Pre-Sentence Detention Declared: N/A 6AAA Statement: N/A Ancillary orders: Sentence on charge 2 to be served cumulatively upon the sentences imposed in DPP v Hodgson [2019] VSCA 49.
The co-offender Charge on Indictment Offence Legislation Maximum Sentence Cumulation 1. Theft s 74 Crimes Act 1958 10 years 6 months 2. Aggravated Burglary s 77 Crimes Act 1958 25 years 6 years Base 3. Causing injury intentionally s 18 Crimes Act 1958 10 years 2 years 1 year 4. Common law Assault Contrary to Common Law 5 years Dismissed 5. Common law Assault Contrary to Common Law 5 years Dismissed 6. Common law Assault Contrary to Common Law 5 years Dismissed 7. Common law Assault Contrary to Common Law 5 years Dismissed 8. False Imprisonment Contrary to Common Law 10 years 1 year 9. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 10. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 11. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 12. False Imprisonment Contrary to Common Law 10 years 1 year 3 months 13. Causing injury intentionally s 18 Crimes Act 1958 10 years 30 months 1 year Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 6 years Pre-Sentence Detention Declared: 537 days 6AAA Statement: N/A Ancillary orders: No orders were sought given the co-offender’s pending matter.
The applicant seeks leave, to appeal against the conviction, on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence.
The applicant seeks leave, to appeal against the sentence, on the following grounds:
1. The learned sentencing judge erred in:
(a) the exercise of his discretion to have regard to time spent serving a sentence for other offending; and
(b)the application of the principle of totality.
2.The individual sentences and order for cumulation offend the principle of parity.
3.The learned sentencing judge erred in failing to moderate general deterrence.
4.The sentence on charge 2, the orders for cumulation and the section 14 Sentencing Act 1991 non-parole period are all manifestly excessive in all the circumstances.
Circumstances of the offending[1]
[1]This summary is taken from DPP v Hodgson [2019] VCC 1441 (‘Reasons for Sentence’), the parties’ respective written cases and the Registrar’s neutral summary.
On or around 25 August 2016, the co-offender stole a blue Subaru Outback station wagon (‘blue Subaru’) from Timberglades Road, Montrose. He pleaded guilty to the theft of this motor vehicle at the Melbourne Magistrates’ Court and was sentenced on 21 August 2017.
The Crown case was that between around 8 pm on 8 September 2016 and 3 am on 9 September 2016, the applicant and co-offender stole number plates ‘SKF 030’ from a Mitsubishi Outlander vehicle that was parked outside a home in Canterbury, near the co-offender’s residence in Balwyn North. The applicant and the co-offender then attached the SKF 030 number plates to the blue Subaru and the applicant and co-offender drove that car to the scene of the offending.
On 9 September 2016, at approximately 3:30 am, a taller man and a shorter man both armed with guns entered a house at 2 Wales Street, Brunswick West. Both men were wearing face coverings. The Crown alleged that the taller man was the applicant and the shorter man was the co-offender.
The house was rented and shared by a number of people. Mr Brenton Murphy had moved out of the house in late July 2016 but was staying there that night. He was dealing drugs while he was a resident and at the time of the offending owed a drug debt. The other occupants were Ms Loren Sanders and Mr Dylan Volk, who occupied one bedroom, and Ms Chelsea Stevenson and Mr Zak Kleesh, who occupied another.
Mr Murphy was sleeping on the couch in the lounge room. He was awoken by being hit in the face with the stock of a double-barrel shotgun held by the taller man. Mr Murphy was then taken to the bedroom occupied by Ms Sanders and Mr Volk.
Ms Sanders and Mr Volk were asleep. The men ripped the sheets from the bed and told them to get out of bed whilst pointing a gun. Ms Sanders was naked, and they handed her a towel. They ordered Ms Sanders and Mr Volk to the lounge room. Mr Murphy was thrown onto the bed and the men continued to beat him.
Ms Stevenson and Mr Kleesh were in the same position. They were woken and ordered into the lounge room. Whilst all of this was going on, the two men were yelling ‘Where is the money. Give us the money’.
Mr Murphy was moved back into the lounge room. The taller man continued to hit Mr Murphy and the shorter man pointed the gun at the four others and told them to shut up. The shorter man was standing behind the victims on the couch armed with a sawn off .22 calibre rifle. The two men continued to ask where the money and drugs were.
Mr Murphy attempted to run out the backdoor. The taller man ran after him. They struggled over the gun and after fighting for a few seconds the shorter man came out and they overpowered Mr Murphy, dragged him back to the lounge room and threw him down next to the couch.
The two men continued to kick Mr Murphy. The taller man went to a duffle bag and produced some bolt cutters. Mr Murphy grabbed a bass guitar that was in the lounge room and tried to hit them. The taller man began to hit Mr Murphy with the bolt cutters. Then the shorter man began to hit him with his rifle.
Mr Murphy lost consciousness. He awoke kneeling near the laundry, facing the backdoor. The shorter man shot him in the thigh. Another shot was fired but missed Mr Murphy. The two men left through the backdoor.
The Crown alleged that after dropping the co-offender off near or at his home, the applicant abandoned the blue Subaru and set fire to it in Kallista.
Mr Murphy was taken to the Royal Melbourne Hospital. He sustained a gunshot wound to his right thigh and had surgery to have it removed. He had multiple injuries to his face, scalp and limbs.
On 13 September 2016 a search warrant was executed at the co-offender’s family home. Police found a sawn-off double-barrel shotgun in his room. Mr Murphy’s and the co-offender’s DNA was found on the shotgun.
On 24 September 2016, the applicant was arrested for other offences that took place about two weeks after this offending. In 2018, the applicant was sentenced on a count of armed robbery. In 2019, the Court of Appeal resentenced the applicant to 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months.[2]
[2]See DPP v Hodgson [2019] VSCA 49.
The evidence
The Crown case was circumstantial. The relevant evidence is set out below.
Mobile phone evidence
At trial, the Crown case was that it could be inferred from the evidence that the applicant was in possession of a mobile phone service number 0432 262 505 (‘505’) from 25 August to 13 September 2016. It was not accepted by counsel on behalf of the applicant that he was in possession of or used the 505 mobile phone at the relevant times on 9 September 2016.
The 505 number was an Optus pre-paid service registered on 24 August 2016 in the name ‘Oliver B Kitchingman’ with a listed date of birth as 1990. No person with those details was formally identified by police. The SIM card was not located. The call charge records for the 505 mobile phone between 24 August and 13 September 2016 were tendered at trial (‘Optus records’).[3]
[3]The Optus records show information including the date, time and duration of calls, whether calls were answered, the ‘A Number’ being the phone number that a call is dialled from, the ‘B Number’ being the phone number that is dialled to call and the ‘First CellID/SAC’ being the cell tower that was used to connect or switch the call.
Emma Bush, a social worker assisting the applicant between August and October 2016, gave evidence that on 25 August 2016 she received a text message to her work phone from the 505 mobile phone which stated ‘Shane, new number’. The Crown led evidence from Ms Bush and the Optus records in respect of contact between Ms Bush's work phone and the 505 mobile phone and the timing and locations of meetings between Ms Bush and the applicant.
The applicant admitted the evidence of Brigette Strahan that, amongst other things, she had reason to have telephone contact with him in August and September 2016 and that the 505 mobile phone number was included on her employer’s records for the applicant. The Crown identified calls between Ms Strahan’s work phone and the 505 mobile in the Optus records.
In addition, the applicant admitted four phone numbers which were for services used by his family and friends. According to the Optus records, the 505 mobile phone was in contact with those numbers between 25 August and 6 September 2016.
The co-offender’s mother, Vasilika Sianas, was the subscriber for Vodafone phone service number 0415 729 011 (‘011’). A standard call charge record (showing outgoing calls) and non-charged party call charge record (showing incoming calls) for the 011 mobile phone were tendered at trial (‘Vodafone records’).[4]
[4]The Vodafone records show information including the date, time and duration of calls, the number of the ‘charged party’ (being the 011 mobile phone) and the non-charged party (being the other mobile phone connected to the call) and the first and last location area code (‘LAC’) and sector identification code (‘SAC’). Mr Martin, agency liaison analyst at Vodafone, gave evidence that the LAC corresponds to the unique identifier of the base station.
The Optus and Vodafone records showed extensive contact (at least 80 instances) between the 505 mobile phone and 011 mobile phone between 25 August to 9 September 2016, including frequent contact before the offending as discussed further below.
The Crown submitted to the jury that with all of those contacts relevant to the applicant’s life it was it was ‘totally implausible’ that someone else was using the 505 mobile phone during the relevant period and that on the basis of this evidence alone it was possible to conclude beyond reasonable doubt that the applicant was a person in possession of the phone.
However, that was not all of the mobile phone evidence. The Optus and Vodafone records also provided what the Crown contended was critical and probative evidence about the movements and communications of the 011 and 505 mobile phones on the morning of the 9 September 2016, as summarised in the table below.
00:13:42[5]
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower,[6] made a call to the 505 mobile phone, connected to the Optus Mt Evelyn tower, which lasted for about 86 seconds.
00:55:37
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Mooroolbark Central’ Optus tower at Mooroolbark Railway Station, Manchester Road,[7] which lasted for about 15 seconds.
1:41:03
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Forest Hill South Replacement’ Optus tower at 172-210 Burwood Highway, Burwood East, which lasted for about 27 seconds.
1:50:50
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Ashwood’ Optus tower at 543 Warrigal Road, Ashwood, which was forwarded to voicemail.
1:51:05
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Ashburton’ Optus tower at the corner of High Street and Warrigal Road, Ashburton, for 12 seconds.
2:09:46
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Ashwood’ Optus tower, which was forwarded to voicemail.
2:10:24
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Glen Iris North’ Optus tower at 99 Bowen Street, Camberwell, which was forwarded to voicemail.
2:12:10
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Willison Station’ Optus tower at 736 Riversdale Road, Camberwell, which was forwarded to voicemail.
2:12:40
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Willison Station’ Optus tower, which was forwarded to voicemail.
[5]In this summary of evidence the 24 hour clock format is used for times.
[6]The Vodafone standard call charge record shows that the LACs for all calls made by the 011 mobile phone listed in this table were 340. The SACs do change, however. At the trial, Mr Malhi, analyst with Vodafone, gave evidence that LAC 340 corresponded to the base station for 303575_Surrey Hills tower, see further at paragraph 31.
[7]The applicant admitted the location of various Optus towers.
2:13:40
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Tooronga’ Optus tower, which lasted for about 23 seconds.
2:17:08
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Willison Station’ Optus tower, which lasted for about 14 seconds.
2:20:54
The 011 mobile phone, connected to a ‘Surrey Hills’ Vodafone tower, made a call to the 505 mobile phone, connected to the ‘Canterbury’ Optus tower at 329 Canterbury Road, Canterbury, which lasted for about 6 seconds.
2:23:24
The 505 mobile phone, connected to a ‘Surrey Hills’ Optus tower, received a call from a different number, which was forwarded.
2:32:01
The 505 mobile phone, connected to a ‘Canterbury’ Optus tower, received a call from a different number, which was forwarded to voicemail.
2:32:01 to 4:18:04
The 505 and 011 mobile phones were not used.[8] (The offending took place in Brunswick West around 3:30:00.)
4:18:04
The 505 mobile phone connected to the ‘Balwyn’ Optus tower at 255A Belmore Road, Balwyn.
4:32:22 to 6:38:27
The 505 mobile phone connected to the ‘Blackburn South’, ‘Croydon South’, ‘Forest Hill Chase’, ‘Mckillop’, ‘Heatherdale’, ‘Mt Evelyn’, ‘Montrose’ and ‘Olinda East’ Optus towers.
6:38:27 and 6:40:43
The 505 mobile phone connected to the ‘Monbulk’ Optus tower at 9 Seamer Road. (At about 7:00:00, a car was reported on fire at 200 Kallista-Emerald Road, Kallista. That location is a short distance from the Monbulk tower and within the area covered by the tower. When police and CFA attended the scene shortly afterwards, they found the blue Subaru was well alight.)
[8]According to the Vodafone standard call charge record, an SMS was sent from the 011 mobile phone to a different number at 3:52:00, but this was not referred to by either party at trial.
At trial, the Crown led expert evidence of Mr Syed Saqib, a technical specialist at Optus, about Optus tower locations, how the towers operate and the area covered by some of the relevant towers. In particular, three maps produced by Mr Saqib depicting the locations of the Montrose, Olinda East and Monbulk Optus towers were tendered. Mr Saqib gave evidence about the maps, including about the ‘azimuth’, which is the intended coverage area of the antennas at those towers. Mr Saqib deposed that a phone connects to the strongest cell tower it can hear a signal from, not necessarily the closest tower geographically. Each map was accompanied by two tables. The first provided station information (for example, the cell name and site address). The second showed ranges of distance (from ‘0-234’ metres to ‘beyond 13104’ metres) and the number of measurements and percentage distribution for the ranges, for the week commencing 5 September 2016. In general, the distribution was substantially over the middle ranges. Mr Saqib gave evidence that in the Optus network the maximum coverage is limited to around 20 kilometres.
The Crown also led expert evidence from Mr Dopinder Balsingh Malhi, an analyst with Vodafone. Mr Malhi produced a map locating certain Vodafone towers, including the ‘303575_SurreyHills’ tower, ‘303166_NorthCanterbury’ tower and ‘303139_Balwyn’ tower (Exhibit A). Marked on the map in red was the coverage area of the third antenna in the 303575_Surrey Hills tower. That red area covered part of Rochester Road, Balwyn North, where the co-offender resided. Mr Malhi explained that an antenna has many cells. He deposed that LAC and SAC information could be combined to identify the serving tower. He further deposed that a combination of LAC 340 and SAC 24049 identified the 303575_Surrey Hills tower. The Vodafone records showed that all calls made by the 011 mobile phone to the 505 mobile phone on the morning of 9 September 2016 had an LAC of 340, and those at 2:12:11, 2:12:40 and 2:13:40 had an SAC of 24049.
The Crown contended that the mobile phone evidence, together with other evidence referred to below, placed the applicant in sufficient proximity to the stealing of the number plates, the offending and the burning of the vehicle, and established a clear link between the applicant and the co-offender.
In closing address, the applicant’s counsel submitted that the evidence about contact by the 505 mobile phone with the cell towers ‘seemed to fall pretty flat’. Counsel contended that the phone could have been 13 kilometres from the Optus cell towers, so it could not ‘tell you a thing’ about the location of the 505 mobile phone when the calls were made. Counsel also submitted that the Crown had not proved that the applicant was the person with the 505 mobile phone on 9 September 2016 for various reasons.
Evidence in relation to the vehicle
The co-offender admitted that the blue Subaru was stolen by him on 25 August 2016,[9] that he had actual physical possession of the vehicle on 25 August, 30 August and 6 September 2016 and that he had access to the car between 25 August 2016 and 9 September 2016. The Crown asked the jury to infer that the co-offender had the opportunity to use the car on 9 September 2016, when the offences were committed.
[9]The admission is not binding on the applicant.
At trial, the Crown tendered CityLink documents recording the movement of a vehicle displaying number plates SFK 030 between 3:13 am and 3:58 am on 9 September 2016. The Crown also tendered a photograph from a road safety camera on Alexander Parade, Fitzroy at 4:05 am on 9 September 2016. The evidence is summarised in the table below.
3:13:56[10]
Activated outbound CityLink gantry at Albion St – Tullamarine Freeway.
3:43:29
Activated inbound CityLink gantry at Albion St – Tullamarine Freeway.
3:47:04
Activated inbound CityLink gantry at Macauley Rd – Tullamarine Freeway.
3:48:59
Activated inbound CityLink gantry on the Bolte Bridge.
3:55:45
Activated outbound CityLink gantry on the Bolte Bridge.
3:57:29
Activated outbound CityLink gantry at Macauley Rd – Tullamarine Freeway.
4:05:29
Activated road safety camera travelling east along Alexandra Parade, Fitzroy.
[10]In this summary of evidence the 24 hour clock format is used for times.
The Crown’s case was that the applicant came to the co-offender’s home, it was at that time they took the SFK 030 number plates and put them onto the blue Subaru, and then by 3:13 am they were on their way to Brunswick West. The Crown further pointed to the gantry evidence of the car travelling along the Tullamarine Freeway and going over the Bolte Bridge and the road safety camera evidence on Alexandra Parade and the contact of the 505 mobile phone with the ‘Balwyn’ Optus tower at 4:18 am, which the Crown submitted was the time they arrived back at the co-offender’s house and the co-offender was dropped off. As noted, the mobile phones were not in use between 2.32 am and 4.18 am. The 505 mobile phone then connected to the Blackburn South, Mt Evelyn, Montrose and Olinda East Optus towers between 4:32 am and 6:24 am and to the Monbulk Optus tower at 6:38 am and 6:40 am, a short distance from 200 Kallista-Emerald Road, Kallista where the vehicle was reported on fire at 7:00 am. The Crown described this as a ‘beautiful loop’.
The Crown also tendered photographs of the burnt-out blue Subaru. The photographs showed a pair of bolt cutters and number plates ‘ULD 116’ in the rear boot.
The applicant tendered CCTV footage and still images of footage from 11 pm on 4 September 2016 which captured the blue Subaru at a Coles Express service station on Mt Dandenong Road in Ringwood. The number plates affixed to the vehicle at that point in time were the ULD 116 number plates recovered in the burnt out shell of the blue Subaru. The person in the footage filled up with petrol and drove off without paying. That person was neither the applicant nor the co-offender.
Counsel for the applicant submitted that this evidence demonstrated that another person had the opportunity to access the car during the relevant period, had physical possession of the car and used it in the course of committing a criminal offence. Counsel further submitted that because of this evidence, the possibility that someone else had the car on 8 and 9 September 2016 could not be excluded, and so the prosecution had failed to satisfy the jury of a ‘fundamental link in their chain of evidence’. Counsel also pointed out that there were no gantry photos or CCTV which actually showed who was driving the car to the Wales Street residence.
The Crown submitted that there was nothing in the evidence to connect the person at the petrol station to the offence at Wales Street and it was pure speculation to think that person was involved, compared to the co-offender who had access to the car and was connected to the offence by the shotgun.
Eyewitness evidence
There was no witness who directly identified either the applicant or the co-offender. Each of the five people present at the Brunswick West house gave evidence at the trial about the two men who were there on 9 September 2016.
Mr Murphy gave evidence that:
(a) The first man had a more solid build than him (a ‘good’ 30 to 40 kilograms) at the time and was probably 6 foot, 4 inches (3 or 4 inches taller than himself). He had a double-barrel shotgun.
(b) The second man was a little bit shorter and skinnier. He had a rifle and bolt cutters with him. He had been under-weight at the time of the incident (approximately 70 kilograms), the shorter man was a ‘bit bigger’ than him.
(c) Both men were masked, wearing shirts over their faces. He did not see either man’s hair colour or eyes. He did not recall seeing any tattoos or get a good look at their hands.
Mr Kleesh gave evidence that:
(d) Two masked men woke him up, they had guns.
(e) One of the men was as tall as him, the other was a couple of heads taller. Both men were white, with blue eyes, wearing gloves, covered up. He was about 5 foot, 9 inches tall and weighed 75 kilograms. The taller man was pretty well built. He was wearing a balaclava. He was ‘much more built’ than Mr Kleesh, more ‘muscular and just bigger’. In his police statement he described the taller man as wearing blue jeans, a navy blue jacket, a black balaclava and was white skinned with blue eyes. He did not have gloves on. Only the shorter man had gloves on.
(f) He did not notice any features such as tattoos on either man.
(g) It was dark, he could have gotten the description wrong. He did not raise these concerns about being mistaken at the committal.
(h) At the committal he gave evidence that he was close enough to the taller man for him to push him. He said that he only saw the eyes and would have glanced at them when he was being pushed. He also got close to him in the lounge room.
(i) In his police statement he noted that taller man referred to the shorter one as ‘Mo’ repeatedly.
Ms Stevenson gave evidence that:
(j) Each man had a gun. Both men were wearing balaclavas.
(k) The first male was short and stocky and wearing all black. He was broader than Mr Kleesh. The shorter man was taller than her, she is approximately 160 centimetres tall. He was no more than 30 centimetres taller.
(l) The second male was wearing a black top and lighter coloured jeans and white new Air Maxes. In her police statement she said that the tall man was wearing brand new Nikes and was Caucasian.
(m) She did not remember any tattoos on the taller man. She did not remember him wearing gloves.
Ms Sanders gave evidence that:
(n) Two men wearing balaclavas woke her up. She could see their eyes. She did not notice any tattoos.
(o) The first man was taller and had a gun which was long, maybe a rifle. He was wearing jeans and she thinks a hoodie. He was Caucasian. He was not wearing gloves.
(p) The second man was shorter and rounder, not extremely slim. He was wearing something similar to the tall man, jeans but she could not really remember. In her police statement she said that he was a bigger build, she would not describe him as fat, more solid.
Mr Volk gave evidence that:
(q) He was woken up by a masked man with a gun. He was wearing tracksuit pants. He was of average height. He was thinner and taller than the other man.
(r) One of them was shorter and fatter than the other. He cannot remember if he had a gun. The gun he did see was a shotgun or something like that. He estimated this man was nearly 6 feet and/or 5 foot 9 inches. He was not a fat man, he was just fatter than the other man.
(s) He did not remember if the taller man was wearing gloves. He did not notice tattoos.
Detective Acting Sergeant Elise Janine Douglas, who in September 2016 was a Detective Senior Constable at the Armed Crime Squad and was the lead investigator in this matter, gave the following evidence about the applicant and co-offender:
(t) There were no balaclavas located at the applicant’s home.
(u) The co-offender has lost weight since the offending.
(v) The applicant has a black tattoo on his right forearm. This tattoo extends to the top of his right hand. He also has a tattoo on his left hand on his wrist, this is a round tattoo, the size of a ten-cent piece.
(w) The applicant has brown eyes.
(x) There is no evidence of the applicant stealing the blue Subaru, or having any involvement with that car prior to the allegations of 9 September 2016.
DNA and firearm evidence
The Crown tendered further evidence from Detective Acting Sergeant Douglas, who was on call on 9 September 2016 and responded to notification of an incident occurring at the Brunswick West residence, arriving just before 6 am. Detective Acting Sergeant Douglas was informed by a Senior Constable that a fired bullet had been found lodged under the carpet close to the laundry door in the lounge room area and that towards the couch a live cartridge was found on the carpet.
On 13 September 2016, police executed a search warrant at the co-offender’s residence. In the co-offender’s bedroom, the police found a sawn-off double-barrel shotgun in the left-hand side of a couch between the seat cushion and side of the couch. The Crown tendered a photograph book relating to the search, which included numerous photos of the shotgun. The police followed procedure to package the shotgun with rubber gloves so that no DNA from a police officer would transfer onto it and the shotgun was taken back to the police station at Monash Crime Investigations.
On 14 September 2016, the co-offender pleaded guilty to possession of a firearm, being the shotgun located at his residence.
Mr Francis Beaurepaire, case manager at the Victoria Police Forensic Services Centre, gave evidence that:
(y) Samples taken from the trigger and barrel end, trigger guard, hammer, foregrip, and top lever of the shotgun had mixed DNA profiles from several contributors. The applicant was excluded from being a contributor of the samples. There was support (ranging from slightly strong to very strong to extremely strong) that Mr Murphy and the co-offender were contributors to the various samples.
(z) A blood swab was taken from the barrel end of the shotgun and the DNA evidence was that Mr Murphy was the source of that blood.
(aa) The presence of biological material over a number of points on the shotgun suggested it had not been wiped clean before it was checked.
(bb) There could be a number of reasons for there being no DNA from a particular person on the shotgun, including that they had not touched it, they were wearing gloves at the time they were touching it, or another person touched it subsequently removing the first person’s DNA from the item. Just because someone’s DNA was not detected, this did not necessarily mean that their DNA was not present as it could be present below detection thresholds.
(cc) If someone had been handling the shotgun for an extended period (15 minutes or more) then it would be expected that some DNA may be left on the shotgun, but there were a number of reasons that it may not be including whether the person had clean hands and whether the person is a good or bad shedder of DNA.
Detective Acting Sergeant Douglas gave evidence that there was no forensic evidence linking the applicant to these events and his fingerprints were not found on the gun.
Counsel for the applicant noted that Ms Sanders, Mr Volk, Ms Stevenson and Mr Kleesh gave evidence that the tall man was not wearing gloves, or that they did not notice that he was wearing gloves. Counsel argued that the applicant’s DNA should have been present on the gun if he were the taller man.
The Crown contended that the shotgun was found four days after the offending during the search of the co-offender’s home and ‘[w]hat happened to it between the offending and its being found is not known’.
Motive
Counsel for the applicant argued that there was no evidence that the applicant had previous dealings with Mr Murphy or any motivation to offend against him.
Mr Murphy gave the following evidence at trial:
(dd) He owed a little bit of money for a drug debt at the time of the offending. In 2016, he amassed at one point or another a $60,000 drug debt. He would get drugs from suppliers on the understanding that he would pay them back with the proceeds of sales. He conducted his business like this for four months between January and July 2016.
(ee) The masked men demanded money and drugs.
The Crown contended that it was not asserted against the applicant and co-offender that they had a ‘motive for the offending, such that it was probative of their involvement in the offences’. Counsel for the applicant argued that the Crown ‘advanced a specific motive for the offending to demand money against the background of a drug debt. However, there was no evidence that the applicant or the co-offender had any previous dealing with Mr Murphy or had any motivation to offend against him’.
Detective Acting Sergeant Douglas gave evidence that there was no evidence of the applicant having any connection to Mr Murphy’s ex-girlfriend.
CONVICTION APPEAL
Proposed ground of appeal
The sole proposed ground of appeal is:
The verdict is unreasonable or cannot be supported having regarding to the evidence.
This ground is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the particular charges in issue.[11] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person. Thus, in R v Baden-Clay,[12] the High Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[13]
[11]M v The Queen (1994) 181 CLR 487, 492–3; [1994] HCA 63 (Mason CJ, Dean, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[12](2016) 258 CLR 308; [2016] HCA 35.
[13]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
Further, in a case based on circumstantial evidence the Court is required to consider and assess the whole of the evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt, that the accused was guilty (or whether there is an inference consistent with innocence reasonably open on the evidence).[14] A circumstantial case cannot be considered in piecemeal fashion.[15]
[14]R v Hillier (2007) 228 CLR 618, [46]-[52]; [2007] HCA 13; R v Klamo (2008) 18 VR 644, 653–4, [38]; [2008] VSCA 75; Dickins v The Queen [2019] VSCA 284, [47].
[15]R v Hillier (2007) 228 CLR 618, [47]; [2007] HCA 13; Fennell v The Queen [2019] HCA 37, [82].
The submissions
The applicant did not dispute that the offending took place. The applicant submitted however that the evidence (whether in relation to specific matters or as a whole) was not sufficient to establish, beyond reasonable doubt, that he was one of the assailants (charges 2–13), the thief (charge 1) and the arsonist (charge 14). The applicant’s submissions deal with each of the items of evidence comprising the circumstantial case. The applicant submitted that when properly analysed, the evidence supporting an inference of guilt was not reasonable and that a hypothesis consistent with innocence was reasonable. Accordingly, the applicant submitted that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty.
The Crown submitted that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
Mobile phone evidence
As referred to above, at trial, the applicant did not accept that he was in possession of the 505 mobile phone at the relevant time on 9 September 2016. However, on this application, the applicant’s counsel accepted, ‘for present purposes’, that it was open to the jury to infer that the applicant was in possession of the 505 mobile phone at that time.
However, so far as this evidence was used to establish the proximity of the applicant to the stealing of the SFK 030 number plates, the assaults and other conduct at Wales Street and the arson, the applicant submitted that the evidence does not support the necessary or reasonable inferences.
The mobile phone evidence does not, it was submitted by the applicant, connect the applicant to the theft of the number plates in charge 1. The number plates must have been stolen between 8 pm on 8 September 2016 when the car was parked and shortly before 3:13 am on 9 September 2016 when the plates activated a CityLink gantry at Albion Street on the Tullamarine Freeway.
There was no evidence, it was submitted by the applicant, addressing coverage of the Canterbury Optus tower to which the 505 mobile phone connected at 2:20 am on 9 September 2016 when receiving a call from the co-offender. The evidence did not support a reasonable inference that the applicant was close to the co-offender or his residence at the time of that call.
There was no evidence, it was submitted, addressing the coverage of the Balwyn Optus tower with which the 505 mobile phone communicated at 4:18 am on 9 September 2016.
There was no evidence, it was submitted, of contact between the 505 and 011 mobile phones between 2:20 am, when the 011 mobile phone contacted the 505 mobile phone, and 1:23 pm, when the 011 mobile phone again contacted the 505 mobile phone.
The reasonableness of the inference that the applicant was connected with the blue Subaru depended on the significance that could be attached to the communications between the 505 mobile phone and the various towers between the offending at Wales Street and the arson. It was submitted that this was at best opportunity evidence. The Optus records showed that between 25 August 2016 and 13 September 2016 the 505 mobile phone regularly communicated with the Mount Evelyn tower, had previously communicated with the Monbulk tower and had previously and subsequently communicated with the Montrose tower. In these circumstances, proximity to the arson was not, it was submitted, strongly probative of the applicant’s guilt.
The Crown accepted the applicant’s concession that it was open to the jury to infer that the applicant was in possession of the 505 mobile phone. It noted that it was also not disputed that there was extensive contact between the 505 and 011 mobile phones during the period 25 August to 9 September 2016, including frequent contact before the aggravated burglary as referred to in the table above. However, the Crown submitted that the evidence[16] establishes that the applicant was indeed in proximity to the stealing of the SFK 030 number plates, the assaults and the other conduct at Wales Street and the arson.
[16]Comprising the Optus records, locations of the mobile phone towers to which the 505 mobile phone was connected and the expert evidence of Mr Saqib relating to Optus tower locations and the operations of the towers.
Evidence in relation to the vehicle
The applicant contended that, whether alone or together with the other evidence, the CityLink and road safety camera evidence was not sufficient to identify the applicant as the offender.
The Crown contended that this evidence together with the mobile phone and other evidence is sufficient to identify the offenders.
Eyewitness evidence
Although conceding that the eyewitness evidence established agreement between the offenders, the applicant submitted that it did not establish that the applicant and the co-offender were those parties.
The applicant referred to the evidence of Mr Kleesh that the offenders — both the taller man and the shorter man — had blue eyes whereas the applicant has brown eyes. He submitted that it was reasonably possible that Mr Kleesh was correct, in particular because:
(ff) He volunteered the evidence the assailants had blue eyes in evidence in chief.
(gg) Though Mr Kleesh said that he could have got it wrong because it was dark, he acknowledged having said the assailants had blue eyes in his statement to police and his evidence at committal without having expressed any qualification as to potential inaccuracy and he adopted his previous statements. He accepted as true his previous evidence that the eyes were a prominent feature because the assailants were wearing balaclavas. Mr Kleesh’s acknowledgement of potential fallibility did not, it was submitted, amount to a departure from his evidence that the eyes of the assailants were blue.
(hh) Mr Kleesh’s evidence as to the colour of the taller man’s eyes was stronger than that in respect of the shorter man’s in that he adopted a previous representation from his police statement that specifically addressed the eye colour of the taller man in the context of a detailed description of his appearance and had on two occasions been ‘close up’ with the taller man.
(ii) The prosecutor did not re-examine Mr Kleesh or seek leave to cross-examine him as unfavourable.
(jj) There was no eye-witness evidence inconsistent with Mr Kleesh’s evidence.[17]
[17]Though Mr Murphy said the assailants’ faces were covered by t-shirts, all other eye-witnesses said the assailants were wearing balaclavas.
The co-offender’s physical appearance at the time of the offending was, it was submitted, not consistent with the eye-witness descriptions: that is, he was at the time obese and shorter (being 170cm tall) than described and had brown eyes.
The taller man referred to the shorter man as ‘Mo’ in circumstances where there was no basis for an inference that ‘Mo’ referred to either of the accused.
The Crown submitted that Mr Kleesh readily conceded that he could have been wrong about the offenders’ eye colour because it was dark.
DNA and firearm evidence
The applicant’s counsel submitted that the presence of the DNA of persons who were not the applicant or the co-offender on multiple sites of the shotgun used by the assailants was strongly suggestive of the involvement of others in the offending.
It was submitted further that the presence of the co-offender’s DNA on the shotgun in circumstances where there was evidence that the smaller man was wearing gloves during the offending tends to suggest the co-offender’s DNA was deposited at a time other than during the offending. The applicant’s DNA was not detected on the shotgun in circumstances where it would likely be there had he been the offender because:
(kk) of the circumstances and duration of handling it;
(ll) the absence of evidence the taller man was wearing gloves; and
(mm) the unlikelihood of the gun having been cleaned to remove DNA.
The DNA evidence established that the victim, Mr Murphy, and the co-offender were linked to the shotgun which was said to have been held by the applicant and used to assault Mr Murphy. The applicant was, however, excluded as a contributor to the biological material on the shotgun.
The Crown relied on the evidence of Mr Beaurepaire to the effect that the lack of any DNA from someone on the shotgun was explicable in several ways: if others had subsequently touched it and removed the DNA, if the person wore gloves,[18] if the gun had been effectively cleaned, or if the person was not a ‘good shedder’ of DNA. It should also be borne in mind that the shotgun was found four days later, partially concealed in the locked bedroom of the co-offender. What happened to it between the offending and its being found is not known.
[18]In this respect, when Mr Kleesh was first asked to describe the offenders he stated: ‘Both – one about as tall as me, other one, couple of heads taller, and both white, blue eyes, gloves, covered up.’
Motive
The Crown, it was submitted, advanced a specific motive for the offending: to demand money against the background of a drug debt. Yet there was no evidence at all that the applicant or the co-offender had any previous dealing with Mr Murphy or had any motivation to offend against him.
This argument, it was submitted by the Crown, misunderstands evidence of the offenders’ apparent motive. It was not asserted against the applicant and the co-offender that they had a motive for the offending, such that it was probative of their involvement in the offences. The only demands which the offenders made of Mr Murphy were for money and/or drugs. This evidence countered the suggestions made by defence counsel at trial that Mr Murphy was targeted by persons unknown because of an ongoing dispute with a former partner.
Analysis
In our opinion it was open to the jury on all of the evidence to be satisfied, beyond reasonable doubt, of the guilt of the applicant on all of the charges. In reaching this conclusion we have made our own independent assessments of all of the evidence. Although circumstantial, the evidence is compelling.
The mobile phone evidence establishes that the applicant and the co-offender, through the 505 and 011 mobile phones, communicated with each other from 12:13 am to 2:32 am on 9 September 2016. More relevantly however, the various Optus and Vodafone towers identified the general locations of the 505 and 011 mobile phones at relevant times.
The SFK 030 number plates were stolen from a vehicle parked overnight at the front of a residence in Canterbury, very close to the co-offender’s home in Balwyn North. The numerous calls and attempted calls from the co-offender to the applicant in the early hours of the morning of 9 September 2016, as referred to in the table above, clearly evidence the applicant’s movements from Mount Evelyn, through the eastern suburbs, towards the general location of the co-offender and the place where the number plates were stolen. The Optus and Vodafone records and the relevant expert evidence referred to above provide a solid foundation for such an inference, an inference that was entirely open to the jury.
The Vodafone documentary and expert evidence establishes that, while in use, the 011 mobile phone, used by the co-offender, was at times connected to the 303575_Surrey Hills tower. A number of the calls referred to have an LAC of 340 which relates to the base station for the 303575_Surrey Hills tower. Those calls that record LAC and SAC 24049 (calls at 2:12:11, 2:12:40 and 2:13:40) refer to and identify the 303575_Surrey Hills tower. The coverage of the third antenna on this tower was marked in red on Exhibit A and includes part of Rochester Road, Balwyn North, the road where the co-offender’s residence was located.
The Optus documentary and expert evidence established that, while in use, the 505 mobile phone connected to the following Optus towers at the following times:
·Mt Evelyn – 00:13:42
·Mooroolbark Central (at Mooroolbark Railway Station, Manchester Road) – 00:55:37
·Forest Hill South (at 172–210 Burwood Highway, Burwood East) – 1:41:03
·Ashwood (at 543 Warrigal Road, Ashwood) – 1:50:50
·Ashburton (at corner of High Street and Warrigal Road, Ashburton) – 1:51:05
·Ashwood (at 543 Warrigal Road, Ashwood) – 2:09:46
·Glen Iris North (at 99 Bowen Street, Camberwell) – 2:10:24
·Willison Station (at 737 Riversdale Road, Camberwell) – 2:12:10 and 2:12:40
·Tooronga – 2:13:40
·Willison Station (at 737 Riversdale Road, Camberwell) – 2:17:08
·Canterbury (at 329 Canterbury Road, Canterbury) – 2:20:54 and 2:32:01
·Surrey Hills – 2:32:24
In summary, between just after midnight and 2:30 am, the 505 mobile phone travelled on a path from Mooroolbark to Surrey Hills. The calls received were between the 505 and 011 mobile phones (other than the last call which was received from a different number — not the 011 mobile phone — and was forwarded to voicemail). There were calls between the 505 mobile phone and other phones during this timeframe that support the path or movement of the 505 mobile phone. It was open to the jury to accept this evidence, notwithstanding evidence to the effect that the 505 mobile phone would connect to the strongest signal and not necessarily the nearest signal and that the particular tower could be as much as 20km away.
As noted earlier, the critical issue at trial and as presented to the jury was whether the applicant was in possession of the 505 mobile phone. The detail referred to in the previous paragraphs was not focused on at trial although the jury was in possession of the relevant records referred to. In argument before us, Mr Boyce QC, counsel for the respondent, without objection or response, put the matter as follows:
This case went forward by agreement really that anyone could assume on the generalised evidence that both of those witnesses gave about the strength of signal, that if you’re pinging off a tower you’re going to be somewhere in that area. We can’t say precisely, but when you’re talking about coming from Mount Evelyn into Canterbury it means something. It can mean something and your Honours will remember that exchange between Mr Gyorffy and I think it was a Mr Saqib when Mr Gyorffy’s [sic] trying to take Mr Saqib through one set of phone records concerning the towers and his Honour stops him and says, ‘Look, it’s obviously, isn’t it? The jury can work that out for themselves. If the phones are pinging off the tower they can draw that conclusion’.
Between 2:32 am and 4:18 am neither the 505 mobile phone nor the 011 mobile phone were in use. The offending took place during this time. No calls were made or received by either phone whereas before 2:32 am there was substantial activity, not only between the applicant and the co-offender but also others. This was rightly regarded by counsel for the respondent as of critical importance. It was during this time that the blue Subaru was used in the offending.
At or about 4:18 am the 505 mobile phone was activated and connected to the Balwyn Optus tower at 255A Belmore Road, Balwyn. The records establish that the 505 mobile phone travelled east from Balwyn to Monbulk.[19] At 6:38 am and 6:40 am it was in contact with the Monbulk Optus tower at 9 Seamer Road, Monbulk. This was a short distance from 200 Kallista-Emerald Road, Kallista where the blue Subaru with number plates SFK 030 was on fire. At about 7:00 am there was a report of a car on fire at that place.
[19]See table at paragraph [29] above.
The blue Subaru with number plates SFK 030 was admittedly used to travel to and from 2 Wales Street, Brunswick West where the offending took place. The admission is confirmed by the CityLink and road safety camera evidence referred to above.
Accordingly, it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant was in the right place at the right time. He was in the vicinity of the location where the SFK 030 number plates were stolen and where at the end of the joint offending the vehicle was set alight. This ties him to the co-offender and the vehicle that was admittedly used in the offending.
Importantly and critically, the evidence against the co-offender was compelling, and a conviction was almost inevitable on the evidence. The evidence included the co-offender’s DNA on the shotgun together with the DNA of Mr Murphy. This puts the co-offender at the scene of the offending. Further, the co-offender pleaded guilty to stealing the vehicle. This puts the co-offender in the vehicle and on the route evidenced by the CityLink and road safety camera evidence.
The evidence establishes beyond reasonable doubt, and it was open to the jury to conclude, that the applicant was linked to the co-offender. The mobile phone evidence, the use of the vehicle, the evidence of the shotgun[20] and the physical characteristics evidence (one was taller and one was shorter) when taken together clearly establish the necessary link. Once these matters were established, it was open to conclude that from the outset there was a relevant agreement between the applicant and the co-offender, which remained in existence; that the applicant and the co-offender acted to support the agreement; that each committed the relevant offences in accordance with their agreement; and that, when they agreed to commit the offences, each had the requisite state of mind necessary to commit the offences with which they were jointly charged.
[20]Evidence of the co-offender’s DNA on the shotgun was admissible against the applicant. The absence of the applicant’s DNA was explained by the expert witness, Mr Beaurepaire, an explanation that it was open for the jury to accept.
Disposition
For the reasons given, leave to appeal the conviction is refused.
SENTENCE APPEAL
As previously noted, the applicant was sentenced to a total effective sentence of 9 years 6 months with a new single non-parole period of 6 years 6 months from 3 September 2019. The new single non-parole period takes into account the non-parole period set by the Court of Appeal in relation to the applicant’s other offending, as required by s 14(1)(b) of the Sentencing Act 1991.
Of the 9 year 6 month sentence, his Honour ordered 6 years to accumulate on the sentence imposed by the Court of Appeal. This was ‘because of the seriousness of your offending, particularly the violence used, and the need to protect the public from you’.[21]
[21]Reasons for Sentence [78].
As at 3 September 2019, the date of sentence, the applicant had approximately 2 years 6 months to serve on the sentence imposed by the Court of Appeal before he was eligible for parole.[22] In fixing the new single non-parole period his Honour took into account this remaining period and fixed the new single non-parole period at 6 years 6 months from 3 September 2019, that is, an additional 4 years.[23]
[22]Ibid [69].
[23]As at 3 September 2019, the applicant still had about 4 years to serve on the Court of Appeal sentence and 6 years on charge 2, that is 10 years.
Accordingly, the new single non-parole period adds 4 years to the remaining non-parole period of about 2 years 6 months as at the date of sentencing, 3 September 2019.
In determining the period of concurrency and cumulation and in fixing the new single non-parole sentence, the judge was ‘very conscious of the need not to impose a crushing sentence particularly because you are still a young man’.[24]
[24]Reasons for Sentence [78].
In careful and comprehensive reasons for sentence, the judge summarised what he called ‘a strong circumstantial case’ in order to show ‘just how serious the offending of each of you is to be regarded’.[25] The judge then dealt with the personal circumstances of the applicant and said:
Your prior offending and the sentence you are presently undergoing all has to be taken into account, both from the point of view of totality and also in an assessment of your prospects for rehabilitation, which I regrettably assess as bleak. As the Court of Appeal observed, it also has to be taken into account in assessing your psychiatric condition and balancing that against the need for any sentence imposed to protect the public. In sentencing you, I have endeavoured to do that.
….
This evidence, I think, justifies the submissions made by Ms Connelly at paragraphs 14 to 21 of her outline, which I accept, that you will find prison more burdensome than others. I was told that whilst in custody you have engaged in self-harm and, on at least three occasions, you have been moved to Thomas Embling Hospital. I do not accept that because of your mental health condition you are not a suitable vehicle for general deterrence. It is impossible in your case to decide that your mental state was a causative factor in your offending. This is because of your drug use.
I have and do take into account your tragic upbringing. I also take into account your youth at the time of the offending and now. But as I say, you are a prolific offender and in a violent way, including the use of weapons. This offending was of a particularly serious kind and level.
Ms Connelly submitted that I should order substantial concurrency between the sentence I impose and the sentence you are currently serving. That submission seems to be based upon the fact that this offending occurred about three weeks after the offending for the sentence being served. I will be effectively allowing for some three years concurrency and ordering six years to accumulate. I do so because of the seriousness of your offending, particularly the violence used, and the need to protect the public from you. In arriving at the head sentence to be imposed and in refixing the non-parole period, I am very conscious of the need not to impose a crushing sentence, particularly because you are still a young man.[26]
[25]Ibid [7].
[26]Ibid [70], [76]–[78].
We now turn to the specific proposed grounds of appeal.
Proposed ground 1 — The learned sentencing judge erred in:
(a) the exercise of his discretion to have regard to time spent serving a sentence for other offending; and
(b) the application of the principle of totality
The applicant submitted that the judge should have had regard to time in custody already served in respect of the sentence imposed by the Court of Appeal, as some form of pre-sentence detention. The applicant’s counsel referred to R v Renzella.[27]
[27][1997] 2 VR 288.
The applicant submitted further that insufficient weight was given to the principle of totality. Conceding that some cumulation was necessary, the applicant’s counsel contended that sufficient allowance was not made for the fact and extent of the imprisonment arising out of the Court of Appeal sentence. In support of that submission, the applicant pointed to the ‘very large gap between the aggregate head sentence and the new non-parole period’.
Finally, the applicant submitted that ‘the fact the earliest release date is later than the new non-parole period indicates an error in the exercise of the direction since this is unlikely to have been intended’.
The respondent submitted that the judge was conscious of the principle of totality and adjusted the sentence accordingly.
For reasons given by the judge, including prior offending and the seriousness of the offending, the additional 6 years was, it was submitted, an appropriate application of the principle of totality.
The respondent submitted that the judge was not required to exercise a Renzella discretion as there was ‘no period of time which the [a]pplicant had spent on remand which was not referable to the pre-sentence declaration which the Court of Appeal declared’. There was no ‘dead time’ spent on remand.
The effect of the judge’s orders is to extend the length of the head sentence to be served by 6 years from the Court of Appeal sentence (to 13 years 6 months overall). The combined sentences will end around March 2030. The applicant’s earliest parole eligibility date is 2 March 2026. If he were released at the earliest time, the parole period would be about 4 years. There is nothing unusual, it was submitted, in these outcomes, which the judge well understood.[28]
[28]Reasons for Sentence, [78], [112]–[114].
Although the judge was required to apply the principle of totality and in this regard take into account the Court of Appeal sentence that the applicant was serving as at the date of the sentence there was, as submitted by the respondent, ‘no occasion for His Honour to exercise a Renzella discretion’. The Court of Appeal had declared 901 days of pre-sentence detention and the applicant had not spent any ‘dead time’ on remand because he was serving an earlier sentence.
As at the date of sentencing, the judge was well aware that the applicant had served almost 3 years of the sentenced fixed by the Court of Appeal (‘1,074 days’) and that there was no applicable pre-sentence detention.[29] His Honour also noted the applicant would still have to serve about 3 years before his earliest parole eligibility date arising from the Court of Appeal sentence.[30]
[29]Ibid [69], [112].
[30]Ibid [113].
On the plea the applicant’s counsel urged his Honour to order substantial concurrency between the sentences.[31] The judge specifically referred to totality for both the applicant and the co-offender.[32] Adjusting for totality, the judge ordered that the applicant should serve 6 years of the sentences imposed for the September 2016 offences cumulatively on the Court of Appeal sentence,[33] i.e. overall combined sentences of 13 years 6 months. His Honour fixed a new single non-parole period, as required by s 14 of the Sentencing Act 1991, of 6 years 6 months from the date of his sentence.[34]
[31]Ibid [78].
[32]Ibid [65], [70].
[33]Perhaps unusually, the judge ordered that the sentence on the charge of aggravated burglary (charge 2) be served cumulatively on the sentence imposed by the Court of Appeal, instead of ordering a partial cumulation of the total effective sentence imposed on that Indictment. However, the applicant does not take issue with this. The judge did not err in doing so. In any event, the extent of the order for cumulation is unexceptional and well within range.
[34]Reasons for Sentence, [114].
For the reasons which the judge gave, these orders reflected an appropriate application of the principle of totality. The offending was very serious. In particular, the aggravated burglary and intentionally causing injury were serious examples of those crimes. The offending was very violent. However, his Honour was ‘very conscious’ of the need to avoid a crushing sentence, particularly because the applicant was ‘still a young man’ (being 25 at the date of sentence).[35]
[35]Ibid [78].
This was the principal ground of appeal against sentence and it is unmeritorious. Leave to appeal in respect of this proposed ground is refused.
Proposed ground 2 — The individual sentences and orders for cumulation offend the principle of parity
The applicant submitted, in effect, that, having found that the circumstances of the co-offender and the applicant were different, the judge should not have imposed the same individual sentences, and therefore the sentencing discretion miscarried.
The respondent submitted that the sentences properly reflected the joint nature of the offending and that the judge properly took into account the principle of parity.
The same individual sentences were imposed on the applicant and the co-offender, except that the applicant was sentenced for the additional offence of arson (charge 14) with which the co-offender was not charged. On charge 14, the applicant was sentenced to 2 years 6 months, of which 1 year was ordered to be served cumulatively.
The orders for cumulation between the applicant and the co-offender on the remaining 13 charges in common differed only in respect of charge 13 and did so in the applicant’s favour — 1 year for the co-offender, 6 months for the applicant. The evidence established that it was the co-offender who fired the rifle at the victim Mr Murphy.
The total effective sentence imposed on the applicant was 9 years 6 months (but 8 years 6 months for the common offences). For the co-offender it was 9 years.
The non-parole periods imposed on the applicant and the co-offender were of similar magnitude — 6 years 6 months (new single non-parole period) for the applicant and 6 years for the co-offender.
The judge referred to the principle of parity and the sentencing orders properly reflect the joint nature of the offending.[36]
[36]Ibid [35].
The principles governing parity are well known. They were conveniently summarised by this Court in Anthony v The Queen,[37] as follows:
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[38]
[37][2016] VSCA 22.
[38]Ibid [12]. The Court referred to Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]–[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujniko v The Queen [2015] VSCA 97, [24]–[25]; Collins v The Queen [2015] VSCA 106, [23].
As to the differences between the offenders, they do not favour the applicant. His criminal record was worse than that of the co-offender. He was on parole at the time of the September 2016 offences.[39] The applicant’s prospects of rehabilitation were bleak;[40] for the co-offender it appears his Honour viewed the prospects as guarded.[41]
[39]Reasons for Sentence, [68].
[40]Ibid [70].
[41]Ibid [58]. The word ‘regarded’ is used therein (in the penultimate line of page 605), but that appears from the context to be a typographical error.
Accepting also that parity is applicable in respect of each aspect of the sentencing orders,[42] the applicant has no justifiable sense of grievance. Totality was applied to the sentencing of both offenders.[43]
[42]Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
[43]Reasons for Sentence, [65], [70].
The proposed ground of appeal is without merit and leave to appeal is refused.
Proposed ground 3 — The learned sentencing judge erred in failing to moderate general deterrence
The applicant submitted that the judge erred in failing to moderate general deterrence because of the applicant’s impaired mental functioning and ‘profound childhood disadvantage’ and in finding that these factors were not causative of the offending. The applicant relied on R v RLP.[44]
[44](2009) 213 A Crim R 461, [26]; [2009] VSCA 271.
The applicant’s submissions under this ground complained that the judge acted contrary to authority in requiring a causal link to be established before general deterrence could be modified because of the two matters relied upon (impaired mental functioning and childhood disadvantage). We reject that submission. Fairly read, his Honour did not state that a causal link was required before general deterrence could be modified.[45] His Honour said no more than that he did not accept a particular submission, before then dealing with the additionally relevant question of causation, which (if established) could have had a further moderating effect on the sentence.
[45]Reasons for Sentence, [76].
The applicant submitted that moderation of general deterrence was justified even in the absence of any causal connection to the offending. Plainly, there could have been some moderation of general deterrence, even absent any relevant causal link. It was, however, open to the judge to take the course he did in this case. We are not persuaded that the course taken involved any error by the judge.
For completeness, we should note that the expert evidence, tendered on the plea,[46] did not establish any causal connection between the mental condition of the applicant and the offending and no connection, based on the expert evidence, was sought to be argued before us.
[46]Psychological report from Stephen Gault dated 20 September 2018; Psychological assessment report from Dr Aaron Cunningham dated 12 April 2018; Forensic psychiatric report from Dr Prashant Pandurangi dated 26 June 2019.
Although the judge was bound to take general deterrence into account, as did the Court of Appeal on the same expert evidence,[47] the judge accepted that the applicant was young and had a tragic upbringing and will find prison more burdensome than others because of his mental condition. Although the judge did not specifically refer to Bugmy v The Queen[48] and R v Verdins[49] these relevant matters were clearly taken into account. However, the judge clearly and properly balanced these considerations against the seriousness of the offending and the applicant’s other violent offending, including the use of weapons.[50]
[47]See DPP v Hodgson [2019] VSCA 49, [68].
[48](2013) 249 CLR 571; [2013] HCA 37.
[49](2007) 16 VR 269; [2007] VSCA 102.
[50]Reasons for Sentence, [76]–[77].
Further, although the judge did not specifically refer to what the Court said in R v RLP,[51] in the circumstances, which include the applicant’s risk of re-offending and consequential need to emphasise the protection of the community, his Honour did not err.
Proposed ground 4 — The sentence on charge 2, the orders for cumulation and the s14 Sentencing Act 1991 non-parole period are all manifestly excessive in all the circumstances
[51](2009) 213 A Crim R 461; [2009] VSCA 271.
The applicant submitted that the total effective sentence, the sentence in respect of each charge and the non-parole period are all manifestly excessive in the circumstances. The applicant relied on the matters raised in respect of the other grounds.
The respondent submitted that the Reasons for Sentence are ‘thorough and carefully considered’ and that the judge gave appropriate weight to all relevant matters including matters in mitigation. It was submitted that the sentences are not wholly outside the range of sentencing options available and it has not been demonstrated that something has gone wrong in the sentencing discretion. It was submitted that the sentence of 6 years imprisonment for a serious aggravated burglary committed by an offender with a history of similar offences ‘is a remarkably lenient sentence’. It was further submitted that the orders for cumulation were modest as was the new single non-parole period. We accept these submissions.
This Court has repeatedly emphasised that manifest excess is a stringent ground, which is difficult to make good. The sentences imposed are not wholly outside the range of the sentencing options available,[52] nor is it ‘shown that something has gone obviously, plainly and badly wrong in the exercise of the sentencing discretion’.[53] Even if we were to conclude that we would have imposed a different sentence, that does not mean that the sentence is wholly outside the range, as reasonable minds frequently differ as to the appropriate sentence.[54]
[52]Leimonitis v The Queen [2018] VSCA 198, [32]; Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58].
[53]Young v The Queen [2016] VSCA 149, [128].
[54]DPP v Macarthur [2019] VSCA 71, [57]–[59].
The sentence of 6 years’ imprisonment for such a serious aggravated burglary, committed by an offender with a substantial, relevant history of committing similar offences, who committed the offence while on parole and who cannot call in mitigation matters such as the entry of a plea of guilty, is in our view a lenient outcome.
The orders for cumulation were modest, no doubt reflecting matters such as the application of the principle of totality, the applicant’s deprived background and comparative youth, the burdensome nature of incarceration and the need to avoid a crushing sentence.
Similarly, the new single non-parole period is a modest one, allowing a significant parole period to foster the applicant’s bleak prospects of rehabilitation.
The proposed ground of appeal is without merit and leave to appeal is refused.
Disposition
For the reasons given leave to appeal the sentence is refused.
3
16
0