Sinclair v The Queen

[2021] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0008

NATHAN SINCLAIR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2021
DATE OF JUDGMENT:	31 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 144
JUDGMENT APPEALED FROM:	DPP v Sinclair (Unreported, County Court of Victoria, Judge Mullaly, 8 December 2020)

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CRIMINAL LAW – Appeal – Sentence – Parity – Aggregate sentence – Theft, armed robbery – Applicant sentenced to 9 months’ imprisonment with a 12 month CCO – Applicant breached CCO condition – Resentenced to aggregate sentence of 26 months’ imprisonment with 18 months non-parole – Applicant 19 at time of offending – Aboriginal heritage – Disadvantaged background – Differential between co-offenders’ sentences not reasonably open – Whether judge erred in imposing aggregate sentence – Crown concession – Offences of significantly different seriousness – Imposition of aggregate sentence not reasonably open – Appeal allowed – Applicant resentenced – Total effective sentence of 15 months’ imprisonment with 9 months non-parole – Stevens v The Queen [2020] VSCA 170, DPP v Frewstal Pty Ltd (2015) 47 VR 660 considered – Sentencing Act 1991 s 9.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Murphy and Mr D Rofe	Chester Metcalfe & Co
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KAYE JA:

Summary

1. The applicant (‘NS’) pleaded guilty to one charge of armed robbery, one charge of theft and one summary charge of driving while disqualified.  He was sentenced to 9 months’ imprisonment (together with a 12 month community correction order) on the armed robbery charge and 3 months’ imprisonment (also with a 12 month CCO) on the theft charge, to be served concurrently.  The total effective (combination) sentence was 9 months’ imprisonment with a 12 month CCO.  

1. This was, as the judge said in his reasons, a ‘merciful’ sentence.[1]  His Honour concluded that NS’s moral culpability was reduced because he had ‘a disadvantaged upbringing that directly impacts on [his] behaviour’.[2]  His Honour also considered that there was ‘little value in terms of the sentencing purposes in any significant further time in prison’.[3]  He noted, by reference to what was said in Boulton v The Queen,[4] that ‘imprisonment is not conducive to rehabilitation, indeed quite the contrary’.[5]

   [1]DPP v Sinclair [2020] VCC 784, [50] (‘Reasons’).

   [2]Ibid [35].

   [3]Ibid [50].

   [4](2014) 46 VR 308; [2014] VSCA 342.

   [5]Reasons [46].

1. NS subsequently breached the conditions of the CCO, by failing to attend a number of supervision appointments with Community Corrections.  The breach hearing came on before the same judge.  By that time (six months after the original plea hearing), NS had been remanded in custody on other charges and it was common ground that the CCO could not be maintained.

1. The judge resentenced NS to an aggregate sentence of 26 months’ imprisonment on the armed robbery and theft charges.  A non-parole period of 18 months was fixed. 

1. NS sought leave to appeal against that sentence.  The application was heard on 3 May 2021.  At the conclusion of the hearing, we announced that leave would be granted, the appeal allowed and the aggregate sentence set aside.  NS was sentenced to 15 months’ imprisonment on the armed robbery charge and 4 months’ imprisonment on the theft charge (to be served concurrently).  The total effective sentence was 15 months’ imprisonment and we fixed a non-parole period of 9 months.  We said that we would publish our reasons subsequently.  These are those reasons.

1. His Honour’s original sentencing of NS was, with respect, exemplary in its recognition of the continuing impact of NS’s disadvantaged background on his behaviour, and of the need to treat his rehabilitation as a sentencing purpose of great importance.  Although his non-compliance with the supervision requirement of the CCO was a matter of concern, it was a relatively low-level breach, made understandable by his youth and deprived background.  And his rehabilitation remained a key consideration in the resentencing.

Factual and procedural background

1. On 25 and 26 August 2019, NS rode as a passenger in a vehicle he knew to be stolen (Charge 6 – theft).  The vehicle was driven by his co-accused, Tristian Smith (‘T’).

1. On 27 August 2019, T, driving the same stolen car, drove into a shopping centre car park and stopped alongside a woman (‘L’) walking towards the shopping centre.  NS, who was in the passenger seat, exited the vehicle.  With the lower half of his face covered, NS produced a sharp object and pointed it at L.  He yelled at her, before taking her lunch bag and handbag.  He then shouted, ‘keys, keys’, and took L’s keys from her.  NS then got back into the car, and T drove out of the car park (Charge 8 – armed robbery). 

1. NS and T returned to the car park.  NS used the keys he had taken from L to enter and drive away in her vehicle (Summary charge 4 – drive while disqualified). 

1. NS pleaded guilty to the three charges and was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
6	Theft [Crimes Act 1958 s 74]	10 years’ imprisonment	3 months’ imprisonment + 12 month CCO	Nil
8	Armed robbery [Crimes Act 1958 s 75A]	25 years’ imprisonment	9 months’ imprisonment + 12 month CCO	Base
Summary charge 4	Drive whilst disqualified [Road Safety Act 1986 s 30]	240 penalty units or 2 years’ imprisonment	1 month	Nil
TotalEffectiveSentence:		9 months’ imprisonment to be followed by a CCO of 12 months’ duration
Pre-sentence DetentionDeclared:		246 days
6AAAStatement:		24 months’ imprisonment with a non-parole period of 12 months
Other orders: Licence cancelled and disqualified from driving for 5 months

1. On the same day, T was sentenced to a total effective sentence of 10 months’ imprisonment combined with a CCO of 2 years’ duration.  He was sentenced on 13 separate charges, including two charges — armed robbery (10 months’ imprisonment, base sentence, with a 2 year CCO) and theft (6 months’ imprisonment,[6] no cumulation) — for which NS was also sentenced. 

   [6]This sentence was imposed in respect of three separate charges of theft.  

1. As noted earlier, following the breach of the CCO, NS was resentenced to an aggregate sentence of 26 months’ imprisonment with a non-parole period of 18 months.  We deal first with the ground of appeal which contended that there was an unjustified disparity between that sentence and the sentence earlier imposed on T.

Parity

1. Counsel for NS pointed to several matters as demonstrating that the disparity in the sentences was unwarranted.  The first was that — given the greater seriousness of the armed robbery offence — the ‘vast majority’ of the aggregate sentence of 26 months must be attributed to that charge, for which T was sentenced to only 10 months.

1. Counsel then pointed out that, although NS was the more active participant in the armed robbery, T was the person who had benefited from the offence through subsequent use of the stolen vehicle.  This meant that their offending in respect of this charge was of at least comparable seriousness.  That was evidently the judge’s view, as he imposed a slightly higher sentence of imprisonment on T (10 months) than on NS (9 months) for the armed robbery. 

1. Thirdly, there were material similarities between NS and T.  Both had pleaded guilty at the committal mention stage and were found to be remorseful, and they had similar criminal histories. 

1. Fourthly, whilst the sentencing judge might fairly have moderated his assessment of NS’s rehabilitation prospects following the breaches of the supervision condition, this could only justify a difference in the structure of the sentence, not a difference in severity.

1. The respondent’s written case conceded that there was ‘merit’ in the complaint of unjustified disparity.  Counsel who appeared for the respondent at the hearing was unable to identify any considerations which might explain the imposition on NS of a sentence which was — as the written case acknowledged — ‘more than twice that of the co-accused’.

1. In our view, the parity complaint was simply unanswerable and should have been conceded in advance.  For the reasons advanced by counsel for NS, it was not reasonably open to the judge to punish NS so much more heavily than his co-offender.  Success on that ground meant that NS had to be resentenced.  First, however, we must deal with a complaint about the imposition of an aggregate sentence in these circumstances.

Aggregate sentence not appropriate

1. The first ground of appeal contended that the sentencing judge erred in imposing an aggregate sentence when resentencing NS on the charges of theft and armed robbery.  The ‘particulars’ of the ground were as follows:

The discretionary power to impose an aggregate sentence miscarried by reason of the fact that the aggregate sentence was imposed in circumstances where there were only two offences, they varied significantly in their seriousness and/or they varied significantly in the manner in which they were committed;  and/or

The learned sentencing Judge failed to comply with s 9(3) of the Sentencing Act.

1. The power to impose an aggregate sentence on a person convicted of two or more offences is conferred by s 9(1) of the Sentencing Act 1991 (‘Sentencing Act’).  The power is enlivened in two circumstances.  The first is where the offences for which sentence is to be imposed are ‘founded on the same facts’.[7]  The second is where the offences form, or are ‘part of, a series of offences of the same or a similar character’.[8]

   [7]Sentencing Act s 9(1).

   [8]Ibid.

1. Counsel for NS accepted that the statutory power to impose an aggregate sentence was enlivened in this case, as the theft and the armed robbery were ‘part of … a series of offences of the same or a similar character’.  It was submitted, however, that the discretion miscarried because the two charges involved significantly different levels of seriousness when considered separately.

1. The respondent’s written case effectively conceded error, on the basis that the offences were ‘of a significantly different seriousness’.  In our view, that concession was appropriately made.  As this Court said in Stevens v The Queen, ‘an aggregate sentence will rarely, if ever, be appropriate where there are only two charges and one of them is much more serious than the other’.[9]

   [9][2020] VSCA 170, [54] (Emerton and Weinberg JJA).

1. In Director of Public Prosecutions v Frewstal Pty Ltd,[10] Maxwell P described the kind of case for which an aggregate sentence is appropriate as:

one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality.  The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a ‘more flexible and pragmatic’ way of ‘reflecting all of the offender’s conduct’.[11]

[10](2015) 47 VR 660; [2015] VSCA 266.

[11]Ibid [44].

1. The imposition of individual sentences in the present case involved no such artificiality.  His Honour had, of course, imposed individual sentences on the first occasion.  He did not explain why he had adopted a different approach in resentencing and, with respect, we were unable to discern any basis for doing so.  We therefore concluded that it was not reasonably open in the circumstances to impose an aggregate sentence.

1. That conclusion made it unnecessary to consider whether the judge’s failure to state his reasons for imposing an aggregate sentence, as required by s 9(3) of the Sentencing Act, constitutes an appealable error.  This case illustrates, however, the importance of such reasons being given.  As the legislature intended, the giving of reasons ensures that the justification for imposing an aggregate sentence is clearly articulated — for the benefit of the parties and (should there be an appeal) of this Court.

Conclusion

1. In resentencing NS, we sought to give full effect to the sentencing judge’s view of NS and his offending as expressed on the first occasion.  As his Honour said, the sentence then imposed was ‘merciful’, particularly in light of the seriousness of the armed robbery, which he correctly observed was ‘serious and frightening offending’.[12]

   [12]Reasons [8].

1. As noted earlier, his Honour explained the leniency of the sentence by reference to NS’s youth and disadvantaged background.  His Honour’s treatment of those matters should be set out in full: 

While the gravity of what you did is important, I cannot let it overwhelm all else.  What is another important consideration is that each of you are still very young.  Your youth impacts on my assessment of your moral culpability as well as what the future may hold in terms of rehabilitation ...

You, Nathan Sinclair, are 19 as you were at the time.  You are an Indigenous man.  In summary, your upbringing was acutely dysfunctional.  You were born in Geelong.  You were at first raised by your mother.  She had significant mental health and drug problems herself.  Your early years were not nurturing. 

At age four, you went to live with your father and stepmother.  He was violent and vindictive and your formative years with him were, as I have described, dysfunctional and abusive. 

At age 11, you were taken into foster care, having been the subject of Department of Health and Human Services applications.  There were, thereafter, many foster homes and care placements and twice, you were put into DHHS residential care facilities. 

You have had periods of homelessness and couch surfing with other marginalised young people.  Your schooling was very limited and you have not had employment. 

You were diagnosed with ADHD at 11.  By age 12, you were using cannabis.  Your drug use then went on to ice and GHB.  You also took to chroming when you were in residential care.  This is, in blunt terms, an awful childhood

You did not mature with any real sense of how to take responsibility.  You were impulsive with low frustration tolerance and mood swings.  Your offending saw you before the Children's Court regularly in 2015 through to 2018. 

Psychologists and psychiatrists who have assessed you for court proceedings note your anxiety, post stress disorder and borderline personality disorder.  You have significant problems with drugs and alcohol. 

What is sadly very obvious, is that you have had a disadvantaged upbringing that directly impacts upon your behaviour.  Your circumstances enliven the principles outlined by the High Court in Bugmy. 

Accordingly, your disadvantage is always relevant to sentencing notwithstanding your ongoing offending.  The disadvantage of upbringing can, and in this case, does, impact on your moral culpability.  That is, it lowers your moral culpability.[13]

[13]Ibid [10], [28]–[36]. These comments were adopted in the resentencing reasons: DPP v Sinclair (County Court of Victoria, Judge Mullaly, 8 December 2020) 64. 

1. For the same reasons, in our view, NS remained a proper candidate for mercy notwithstanding the breaches of the CCO.  As the judge himself acknowledged,[14] it is the obligation of courts to give ‘full weight’ to an offender’s deprived background in every sentencing decision.[15]  Those circumstances necessarily moderated the judgment to be made about his non-compliance with the CCO.

   [14]Reasons [36].

   [15]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

1. Accordingly, we resentenced NS as follows:

Charge	Offence	Maximum	Sentence	Cumulation
6	Theft [Crimes Act 1958 s 74]	10 years’ imprisonment	4 months’ imprisonment	Nil
8	Armed robbery [Crimes Act 1958 s 75A]	25 years’ imprisonment	15 months’ imprisonment	Base
Total Effective Sentence:		15 months’ imprisonment with a non-parole period of 9 months
Pre-sentence Detention:		392 days
6AAA Statement:		20 months’ imprisonment with a non-parole period of 14 months
Other orders:		N/A

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