Spiteri v The Queen
[2018] VSCA 254
•8 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0198
| STEPHEN SPITERI | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0080
| STEPHEN SPITERI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 September 2018 |
| DATE OF JUDGMENT: | 8 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 254 |
| JUDGMENT APPEALED FROM: | DPP v Spiteri [2017] VCC 1019 (Judge Davis); DPP v Spiteri [2017] VCC 1914 (Judge Grant) |
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CRIMINAL LAW – Aggravated burglary – Sentence of 4 years, 6 months’ imprisonment – Assault police officer in due execution of duty – Sentence of 3 years with 1 year, 6 months cumulation on sentence for aggravated burglary – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years – Facts on which applicant pleaded guilty could not constitute offence of assaulting police officer in due execution of duty under s 31(1)(b) of Crimes Act 1958 but could constitute offence of intentionally obstructing police officer under that section – Parties agree that indictment be amended under s 165 Criminal Procedure Act 2009 to substitute correct charge – Crown concession that sentencing discretion reopened in respect of substituted charge – Resentenced to 2 years’ imprisonment with cumulation of 1 year on substituted charge – Total effective sentence of 5 years, 6 months’ imprisonment.
CRIMINAL LAW – Separate aggravated burglary – Sentenced by different judge to 4 years, 6 months’ imprisonment – Possessing a firearm while a prohibited person – Sentence of 2 years, 3 months with 6 months’ cumulation on sentence for aggravated burglary – Total effective sentence of 5 years – Judge ordered 2 years and 6 months of this sentence be served cumulatively on earlier sentence by different judge – Combined total effective sentence of 8 years, 6 months, with new single non-parole period of 6 years, 6 months – Judge intended pre-sentence detention for both sets of offences be reckoned as already served in respect of combined total effective sentence but failed to make declaration to that effect – Judge did not specify commencement date for new single non-parole period – Correctional authorities treated non-parole period as commencing on date of later sentence with effect that applicant would become eligible for parole approximately 1 year before end of combined total effective sentence rather than 2 years as intended by judge – No complaint about individual sentences or order for cumulation – Parties agree applicant should be resentenced solely for purpose of correcting pre-sentence detention declaration and end date for non-parole period – Orders accordingly.
CRIMINAL LAW – Sentence – Offender serving prior sentence when new sentence imposed – Fixing of new single non-parole period – Commencement date for that non-parole period – Sentencing Act 1991 s 14 – R v Rich (No 2) (2002) 4 VR 155 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Balmer & Associates |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
KYROU JA:
Introduction and summary
The applicant seeks leave to appeal against sentences imposed by two County Court judges for separate aggravated burglary charges and other charges to which he pleaded guilty.
On 12 July 2017, he was sentenced by Judge Davis in relation to the charges on indictment C1610576 (‘first indictment’) as follows:[1]
[1]DPP v Spiteri [2017] VCC 1019 (‘Judge Davis sentence’).
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years 4 years, 6 months Base 3 Assault police officer in the due execution of duty [Crimes Act s 31(1)(b)] 5 years 3 years 1 year, 6 months Total Effective Sentence: 6 years Non-Parole Period: 4 years Pre-Sentence Detention Declaration: 213 days Section 6AAA Statement: 9 years’ imprisonment
On 15 December 2017, the applicant was sentenced by Judge Grant in relation to charges 1 and 2 on indictment C1610819 (‘second indictment’) and three summary offences as follows:[2]
[2]DPP v Spiteri [2017] VCC 1914 (‘Judge Grant sentence’).
Charge Offence Maximum Sentence Cumulation 1 Possessing a firearm while a prohibited person [Firearms Act 1996 s 5(1)] 10 years 2 years, 3 months 6 months 2 Aggravated burglary 25 years 4 years, 6 months Base Summary charges 3 Possession of cartridge ammunition without a licence [Firearms Act s 124(1)] 40 penalty units $2,500 fine – 4 Dealing with property suspected of being proceeds of crime [Crimes Act s 195] 2 years 6 months – 5 Committing an indictable offence while on bail [Bail Act 1977 s 30B] 3 months 2 months – Total Effective Sentence: 5 years’ imprisonment Pre-Sentence Detention Declaration: 187 days Section 6AAA Statement: 7 years, 6 months’ imprisonment
In the record of orders, Judge Grant:
(a)directed ‘that 30 months [of the total effective sentence of 5 years] be served cumulatively on the sentence presently being served and imposed on 12/7/17’, by Judge Davis;
(b)recorded the ‘total effective sentence across the two matters’ as 8 years and 6 months;
(c)directed ‘that a new non-parole period be fixed and that the new minimum term to be served before being eligible for parole’ is 6 years and 6 months’ imprisonment;
(d)with regard to the pre-sentence detention declaration, stated that ‘the period that the [applicant] has been in custody in respect of these offences, namely 187 day/s, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively’; and
(e)with regard to s 6AAA of the Sentencing Act 1991, stated that, were it not for the applicant’s plea of guilty, he would have sentenced the applicant to a total effective sentence of 7 years and 6 months’ imprisonment ‘with consequent adjustments to the total effective sentence across the two matters and the new non-parole period’.
In his sentencing remarks, Judge Grant stated that the earlier pre-sentence detention declaration of 213 days made by Judge Davis would ‘Obviously … also apply’.[3] However, this statement is not reflected in the record of orders. Had the statement been reflected in the record of orders, the pre-sentence detention would have been declared to be 400 days, being 213 days plus 187 days.
[3]Judge Grant sentence [74].
Judge Grant did not specify a commencement date for the new single non-parole period.
Before this Court, the parties agreed that the intended effect of the orders made by Judge Grant was that 2 years and 6 months of the sentence he imposed would be served cumulatively on the sentence imposed by Judge Davis, producing a combined total effective sentence of 8 years and 6 months’ imprisonment for both sets of offending, with a new single non-parole period of 6 years and 6 months, backdated to commence on the date that the applicant was sentenced by Judge Davis.
The parties also agreed that Judge Grant intended that the 213 days of pre-sentence detention declared by Judge Davis, in addition to the 187 days he declared, would be deducted from the period to be served on the combined total effective sentence, resulting in a ‘combined’ pre-sentence detention declaration of 400 days.
After the applicant was sentenced by Judge Grant on 15 December 2017, correctional authorities correctly calculated the end date for the combined total effective sentence to be 7 December 2024. However, they calculated the end date of the applicant’s non-parole period to be 10 December 2023 instead of 7 December 2022. This discrepancy arose as follows:
(a)the new single non-parole period was calculated on the basis of the pre-sentence detention of 187 days declared by Judge Grant, rather than a combined pre-sentence detention of 400 days; and
(b)the new single non-parole period was calculated as commencing from the date that Judge Grant — rather than Judge Davis — sentenced the applicant, resulting in a gap of 363 days between the end dates of the non-parole period and the total effective sentence, rather than the gap of 2 years which Judge Grant intended.
The sole proposed ground of appeal in respect of Judge Grant’s sentence relates to the number of days of pre-sentence detention he declared. The Crown has conceded that the judge erred and the parties have reached a common position as to how the error is to be corrected.
In relation to Judge Davis’s sentence, the two proposed grounds of appeal relate to charge 3 on the first indictment. That charge is as follows:
CHARGE 3 The Director of Public Prosecutions charges that [the applicant] at Truganina in Victoria on the 12th day of February 2016 assaulted BENJAMIN DANIEL FOX a member of the Police Force in the due execution of duty, knowing that or being reckless as to whether BENJAMIN DANIEL FOX was a member of the Police Force.
Statement of Offence — Assaulting a police officer in the due execution of duty contrary to s 31(l)(b) of the Crimes Act 1958.
The applicant contends that Judge Davis erred in sentencing him on the incorrect factual basis that he pointed a firearm at a police officer, as distinct from raising it in the officer’s direction, and that the sentence for that charge is manifestly excessive.
The Crown has conceded that the factual basis upon which the applicant pleaded guilty to charge 3 on the first indictment could not support a charge of assaulting a police officer under s 31(1)(b) of the Crimes Act because no force was applied to Acting Sergeant Fox. However, it is common ground that those facts can support a charge of intentionally obstructing a police officer under the same section.
Section 31 provides as follows:
31 Assaults
(1) A person who—
…
(b)assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty … knowing or being reckless as to whether the person was an emergency worker …
…
is guilty of an indictable offence.
Penalty: Level 6 imprisonment (5 years maximum).[4]
[4]Section 31(2A) of the Crimes Act provides that ‘emergency worker’ has the same meaning as in s 10AA of the Sentencing Act. Section 10AA(8)(a) of the latter Act defines ‘emergency worker’ to include a police officer.
(2)In subsection (1), assault means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is—
(a)without lawful excuse; and
(b)with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty—
and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).
The parties have jointly submitted that the Court should amend charge 3 on the first indictment to substitute ‘intentionally obstructed’ and ‘Intentionally obstructing’ for ‘assaulted’ and ‘Assaulting’ in accordance with s 165 of the Criminal Procedure Act 2009 (‘CPA’). That section provides as follows:
165 Order for amendment of indictment
(1)The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If an indictment is amended by order under this section, the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the trial.
The Crown conceded that the parties’ agreed course has the effect of reopening the sentencing discretion but it did not concede that a lesser sentence should be imposed for charge 3 on the proposed amended first indictment.
For the reasons that follow:
(a)the applications for leave to appeal against the sentences imposed by Judge Davis and Judge Grant will be granted and the appeals will be allowed;
(b) the first indictment will be amended as set out at [15] above;
(c)the applicant will be resentenced in respect of the charges on the first indictment as set out at [72] below; and
(d)a new non-parole period will be fixed and a new period of pre-sentence detention will be declared as set out at [99] below.
We will discuss the applicant’s personal circumstances before separately turning to the two applications for leave to appeal.
Applicant’s personal circumstances
The applicant was 24 years old when he committed the offending the subject of Judge Davis’s sentence and 25 when he committed the offending the subject of Judge Grant’s sentence. On the dates he was sentenced by both judges, he was 26.
The applicant left school after Year 9, and completed a four-year apprenticeship as a diesel mechanic in 2010. He worked as a diesel mechanic until late-2011, when he was involved in a motorcycle accident and suffered a fractured skull and internal bleeding.
While the applicant was unemployed after the accident, he began to use methylamphetamine (‘ice’), which escalated to daily use. It is in the context of that drug use that he began offending.
On 9 October 2013, the applicant was dealt with in the Sunshine Magistrates’ Court for the offences of driving while disqualified and driving a prohibited vehicle while a probationary driver. He was sentenced to a community correction order (‘CCO’) for 6 months, and his driver’s licence was suspended for 6 months.
On 5 March 2014, the applicant was again dealt with in the Sunshine Magistrates’ Court for driving offences, including driving while disqualified. He was fined an aggregate of $1,500 and his licence was cancelled for 3 months.
On 24 September 2014, the applicant was dealt with in the Melbourne Magistrates’ Court for dangerous driving while pursued by police, possession of a handgun and cartridge ammunition without a licence, carrying a loaded firearm in a public place, driving while disqualified, using an unregistered motor vehicle on a highway, making a false report to police, possession of suspected stolen goods, dealing with property suspected of being the proceeds of crime and other driving offences. He was sentenced to a total of 6 months’ imprisonment, fined an aggregate of $1,000, and disqualified from holding a driver’s licence for 12 months.
On 14 November 2014, the applicant was dealt with in the Sunshine Magistrates’ Court for committing an indictable offence while on bail, possessing a firearm while a prohibited person, possessing cartridge ammunition without a licence, and possession of GHB. He was sentenced to a combination sentence, with an aggregate of 6 months’ imprisonment — 4 months of that sentence being cumulative on the sentence imposed on 24 September 2014 — and a CCO for 18 months. A contravention of that CCO was proved and on 29 June 2016 he was fined $500.
The offending the subject of both Judge Davis’s and Judge Grant’s sentences was committed while the applicant was subject to the CCO imposed on 14 November 2014. He was on bail for the charges on the first indictment when he committed the offences charged on the second indictment.
While he has been in custody, the applicant has completed a number of programs, including in relation to his drug use. On 8 May 2017, he submitted a urine sample, the assay results of which did not indicate the presence of any drugs. He held a position of responsibility as a unit billet while at the Melbourne Remand Centre.
The applicant’s parents have remained supportive of him.
Circumstances of offending the subject of Judge Davis’s sentence
On 12 February 2016, at approximately 1:00 pm, the applicant and two co-offenders arrived at a residential property in Truganina in a vehicle with false number plates. The three offenders were aware that cannabis was grown at the property.
The three offenders cut the wire to a CCTV camera at the property. A neighbour saw this and telephoned police.
The occupier of the property was woken by his dog barking at the entrance to the garage. The occupier approached that entrance and saw one of the offenders enter the hallway of the house. The occupier picked up his dog and went to the lounge room. The dog was still barking, and the offender yelled at the occupier to ‘shut it up’. The dog ran towards the offender, who hit it with a metal object. The occupier picked the dog up and sat down with it in the lounge room. The offender remained with the occupier to ‘stand guard’. The other two offenders then entered the property through the garage.
At the time he entered, the applicant had a loaded 9-millimetre semi-automatic handgun with him. Charge 1 on the first indictment alleged that the applicant entered the property as a trespasser ‘with intent to steal and at the time had with him a firearm and at the time of entering a person was then present in the building and [the applicant] knew that a person was then so present or was reckless as to whether or not a person was then so present’.
The offender in the lounge room was joined by one of the other offenders, who asked the occupier for the keys to his motorbike. He returned a short time later and told the occupier that if he did not tell him where the keys were, he would kill the dog.
The offender who stayed in the lounge room took two phones and looked around the room for other things to take. The applicant was later found in possession of the occupier’s wallet.
Sergeant Craig Stanton and Acting Sergeant Benjamin Fox arrived a few minutes after the neighbour called police. They entered the rear yard and attempted to gain entry to the property, however the doors and windows were locked.
The first co-offender saw the police officers, and called out to the others that police were there. The first co-offender then ran out of the lounge room.
The applicant attempted to leave the house through the front door however, when he opened it, he saw Sergeant Stanton standing outside so he slammed the door shut and retreated back inside. Acting Sergeant Fox positioned himself at the rear of the property.
The applicant, followed by his co-offenders, left the house through the garage door into the rear of the property. As he exited through the garage door, he had his gun in his hand. As the applicant and Acting Sergeant Fox approached each other, the applicant raised the handgun towards Acting Sergeant Fox’s torso for a short period of time before discarding it (charge 3). Acting Sergeant Fox tackled the applicant to the ground and placed him in handcuffs. The applicant’s co-offenders fled over the rear fence but were later arrested.
The applicant was granted bail on 16 March 2016. Bail was revoked on 13 January 2017.
The occupier of the property did not provide a victim impact statement. He described the offending to police as being very traumatic, and said that he had been fearful for what might have happened if the police had not intervened at an early stage.
In his victim impact statement, Acting Sergeant Fox stated:
During the incident, the offender pointed a firearm at me. In that moment I felt I was going to [be] shot and killed by the offender. I feared for my life at that point …
Acting Sergeant Fox also stated that he has experienced flashbacks from the incident on a regular and ongoing basis and experiences anxiety and fear each day. He said that it has affected his work, as he has become anxious and hesitant in high-pressure work situations, and his relationships with others have also been affected. He has difficulty sleeping and no longer feels safe in his home.
Basis of guilty plea to charge 3 on the first indictment
It had been alleged by the Crown, prior to the committal hearing, that the applicant had pointed his handgun at Acting Sergeant Fox. However, following negotiations, it was agreed that the summary of prosecution opening would be amended to remove the allegation that the applicant deliberately pointed his handgun at Acting Sergeant Fox’s torso, and to state instead that the applicant had raised his handgun in the direction of Acting Sergeant Fox’s torso. The applicant pleaded guilty to charge 3 on the first indictment on the basis that he had raised, not pointed, the handgun.
The original summary of prosecution opening which contained the allegation that the applicant had pointed his gun at Acting Sergeant Fox’s torso was filed with the County Court. On the plea, the amended summary of prosecution opening — which replaced the allegation of pointing with the allegation of raising — was provided to Judge Davis.
Acting Sergeant Fox was not available to amend his victim impact statement to be consistent with the amended summary of prosecution opening before the plea hearing. Before it was read by the prosecutor during the plea hearing, she alerted Judge Davis to the inconsistency between the amended summary of prosecution opening, and the statements in Acting Sergeant Fox’s victim impact statement that the applicant had ‘pointed a firearm at [him]’. The prosecutor reminded Judge Davis that she ‘needs to sentence obviously on the basis … that the firearm was raised rather than pointed’.[5]
[5]Transcript of Proceedings (28 June 2017) 17.
Judge Davis’s sentencing remarks
Judge Davis found that the applicant’s offending was a ‘serious’ example of assaulting a police officer in the due execution of duty[6] and that the aggravated burglary ‘lies squarely within the mid-range in terms of seriousness’.[7] She had regard to the seriousness with which Parliament views the offence of aggravated burglary, and the importance of the sentencing principles of denunciation, just punishment, general and specific deterrence, protection of the community and rehabilitation.
[6]Judge Davis sentence [53].
[7]Judge Davis sentence [51].
Judge Davis had regard to the applicant’s motivation for the aggravated burglary being to steal cannabis, and his drug use, including his use of ice at the time of the offending, and resulting paranoia which caused him to have a gun during the aggravated burglary.
Judge Davis took into account the applicant’s history of offending, including: his failure to complete previous court dispositions; the offending on the first indictment breaching a CCO; and the applicant’s subsequent charges on the second indictment, and stated that those matters were relevant to his prospects of rehabilitation. She also noted that none of the applicant’s prior convictions involved offences of violence, but regarded as relevant his convictions for possession of firearms and ammunition without a licence and the commission of indictable offences while on bail.
In relation to the mitigating factors the applicant was able to call in aid, Judge Davis referred to: the applicant’s early plea of guilty which is indicative of remorse and has utilitarian value; his relative youth and positive prospects of rehabilitation, informed by his efforts in custody to deal with his addiction; and the fact that the applicant has the support of his family. She also referred to his work as a unit billet and negative urine screen.
Judge Davis had regard to the need to avoid the risk of double punishment in respect of the charges of aggravated burglary and assaulting a police officer, as well as the principles of proportionality, parsimony, totality and parity.
Judge Davis stated that she sentenced the applicant on the basis of the facts contained in the amended summary of prosecution opening. She referred to the applicant’s actions that comprised charge 3 on the first indictment, as follows:
Two police officers attended at the property and [the offenders] tried to flee. [The applicant] went first, holding a gun in [his] hand. This is the first time [the applicant’s co-offenders] became aware of the presence of a firearm. Acting Sergeant Fox approached [the applicant] and [the applicant] raised the gun towards Mr Fox’s torso for a short period of time, before throwing it on the ground …
…
The … Victim Impact Statements from … Benjamin Fox [was] read out in court. Mr Fox attended at the Truganina property on 12 February 2016 and [the applicant] raised a gun towards his torso. He feared he was going to be shot and killed …
…
[The applicant] … had a gun with [him] ... [He] used it during the offending, raising it towards Officer Fox, which would have caused him fear, but did not make verbal threats to use it.
…
I turn to the offence of assault of a police officer in the execution of duty … [The applicant] raised a loaded handgun towards Mr Fox’s torso for a short time, before discarding it near the fence. Mr Fox then tackled [him] to the ground. When [the applicant] pointed the gun at him, Mr Fox feared that he was going to be shot and killed, and has suffered persistent hypervigilance, sleep disturbance, anxiety, [and] flashbacks since the incident. His symptoms have affected his family life and his work performance.
…
I consider that the offending of [the applicant] … in raising a gun towards [Acting Sergeant Fox] as [he] sought to apprehend [the applicant] in the aftermath of the aggravated [burglary] committed by [him], is a serious example of the offence of assault a police officer in the due execution of duty …[8]
[8]Judge Davis sentence [7], [17], [42], [52], [58] (emphasis added).
Grounds of appeal — Judge Davis’s sentence
The two grounds of appeal in respect of Judge Davis’s sentence are in the following terms:
1The Learned Sentencing Judge erred in sentencing the Applicant for the Assault Police charge on the basis that, the conduct involved in the commission of that offence, included the pointing of a firearm at a police officer.
2The sentence imposed on the charge of Assault Police is manifestly excessive.
Parties’ submissions on grounds 1 and 2 — Judge Davis’s sentence
The Crown conceded that, as a result of the change to the factual matrix in the amended summary of prosecution opening, the applicant’s conduct for which he pleaded guilty to charge 3 on the first indictment now falls outside the compass of s 31(1)(b) of the Crimes Act. That was said to be because the definition of ‘assault’ in s 31(2) involves the direct or indirect application of force to the victim with the requisite intent and, in the present case, there was no firing of the weapon or other use of force and therefore no assault. The Crown further conceded that there was no threat of assault because the act of ‘raising’ a firearm does not indicate that the applicant intended to physically strike Acting Sergeant Fox. Accordingly, so it said, a miscarriage of justice had occurred because the applicant had pleaded guilty to an offence which was not made out at law.
Prior to the hearing of the application for leave to appeal, the parties provided the Court with a joint written submission. That submission contended that the appropriate course for this Court was to amend the first indictment pursuant to s 165 of the CPA to substitute the offence of intentionally obstructing a police officer in the due execution of duty under s 31(1)(b) of the Crimes Act.[9]
[9]Section 165 of the CPA is set out at [15] above.
The applicant and the Crown also submitted that, in the circumstances of this case, if the Court gave effect to that course, the sentencing discretion would be reopened in relation to charge 3 on the first indictment (but not charge 1), and this Court must sentence the applicant afresh on charge 3 and make a fresh order for cumulation.
The applicant submitted that, in the circumstances of his offending, a sentence of less than 3 years’ imprisonment — which was the sentence imposed by Judge Davis for the offence of assaulting a police officer — should be imposed. He contended that was so for the following reasons.
First, the plea of guilty. The applicant submitted that he should be treated as willing to plead guilty at an early stage, as he was not initially afforded the opportunity to plead guilty to the offence for which he now falls to be sentenced. He contended that his plea of guilty also had a utilitarian benefit, namely, that Acting Sergeant Fox was not required to give evidence, and should also be seen as consistent with remorse.
Secondly, the offending conduct, regardless of the charge attaching to it, was of very brief duration before the handgun was thrown away and did not involve verbal threats or other physical actions.
Thirdly, the applicant does not have any history of offences of violence towards police officers, or offences of violence generally.
Fourthly, the applicant has made efforts while in custody towards rehabilitation by attending numerous courses, including commencing a 130-hour drug course which occurs over a period of six months.
Regarding the appropriate order for cumulation, the applicant submitted that, due to the brief duration of the offence and its close connection with the aggravated burglary the subject of charge 1 on the first indictment, cumulation of 50 per cent was too great, and a lesser period of cumulation should be ordered by this Court.
The Crown submitted that, notwithstanding that the sentencing discretion was reopened, the same sentence should be imposed for the offence of intentionally obstructing a police officer in the due execution of duty, as a head sentence of 3 years and order for cumulation of 1 year and 6 months were within range.
The Crown contended that was so due to: the seriousness of the applicant’s possession of a loaded handgun; the context of the offending in that the applicant knew that the police were outside and was attempting to escape lawful apprehension; the profound impact the offending had on Acting Sergeant Fox; the applicant’s relevant prior criminal history; and the aggravating factor of the applicant breaching a CCO. It also argued that general deterrence, denunciation and just punishment were important sentencing considerations, and that specific deterrence and protection of the community carried significant weight in the light of the applicant’s history of offending. Accordingly, so it said, while the sentence may be considered ‘stern’, it was appropriate and this Court should impose the same sentence.
Decision on grounds 1 and 2 — Judge Davis’s sentence
In Eade v The Queen,[10] this Court ordered the amendment of an indictment pursuant to s 165 of the CPA. That case involved charges brought against two offenders who had entered a factory at night and set fire to plastic wrapping on milk crates, before leaving the factory while the plastic was still burning. The fire spread and the factory burned down. The two offenders each pleaded guilty to destroying or damaging a building by fire.[11] An element of that offence is that the offender ‘intentionally and without lawful excuse destroys or damages … property’.[12] However, it was common ground that the offenders intended to damage the milk crates but not the factory. This Court held that the convictions could not stand, and ordered that the indictment be amended to re-particularise the offence.[13] It set aside the sentences and resentenced the offenders.
[10](2012) 35 VR 526 (‘Eade’).
[11]That offence was charged as arson: s 197(6) of the Crimes Act provides that offences against s 197(1) committed by destroying or damaging property by fire are to be so charged.
[12]Crimes Act s 197(1).
[13]Eade (2012) 35 VR 526, 532 [28].
During oral argument in the present case, there was some discussion about whether, as an alternative to the power to amend under s 165 of the CPA, the Court could exercise the power in s 277 of that Act to substitute a conviction for the offence of intentionally obstructing for the conviction for the offence of assaulting. This latter power was recently exercised in Kargar v The Queen.[14] However that power is only available where — as in Kargar — there is a successful appeal against conviction and is not available where there is an appeal against sentence only.
[14][2018] VSCA 148 (‘Kargar’).
In our opinion, the amendment of the indictment which the parties have proposed is appropriate in the circumstances of this case and accords with the approach taken by the Court in Eade. Accordingly, we will make an order under s 165 of the CPA that charge 3 on the first indictment be amended by substituting ‘intentionally obstructed’ for ‘assaulted’ and that the statement of offence for that charge be amended by substituting ‘Intentionally obstructing’ for ‘Assaulting’.
We agree with the parties that the amendment to the indictment has the effect of reopening the sentencing discretion for charge 3 on the first indictment.
In our opinion, even though the factual matrix for the substituted charge of intentionally obstructing a police officer in the due execution of duty is the same as it was for the original charge of assaulting a police officer in the due execution of duty, the substituted charge is less serious. This is because two important elements of the assault charge are absent from the obstruction charge, namely, the intention to inflict, or recklessness as to the infliction of, bodily injury, pain, discomfort, damage, insult or deprivation of liberty, and the application of force which results in the infliction of any such consequence. The obstruction charge required an intention to obstruct and conduct which had that effect but it was not necessary for that conduct to involve any physical contact with a police officer.[15]
[15]In Goddard v Collins [1984] VR 919, 929 Nathan J held that the offence of obstructing a law enforcement officer requires a ‘purposeful act of making it more difficult for [the officer] to do that which he is empowered to do’.
However, despite the absence of the two elements referred to above, the obstruction offence was nevertheless a serious example of that offence because it involved the use of a loaded firearm. Although the period in which the firearm was raised towards Acting Sergeant Fox’s torso (as distinct from being pointed at him) was brief, that act was very frightening and had the effect of causing him to fear for his life.
We agree with the judge that the fact that the applicant had prior convictions for possession of firearms and ammunition, coupled with the fact that his offending involved a breach of a CCO, meant that protection of the community, denunciation, general deterrence and specific deterrence were significant sentencing considerations. These considerations had to be balanced against the mitigating circumstances on which the applicant relied including, in particular, his plea of guilty, remorse, youth, prospects of rehabilitation and family support.
In our opinion, cumulation of 50 per cent of the sentence to be imposed for charge 3 on the first indictment is appropriate in order to reflect the fact that it involved separate, serious offending against a different victim.
Having regard to the above discussion, the applicant will be resentenced as follows for the charges on the first indictment.
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years 4 years, 6 months Base 3 Intentionally obstruct police officer in the due execution of duty 5 years 2 years 1 year Total Effective Sentence: 5 years, 6 months
The principle of totality requires that we take into account the above sentences in determining the extent of any cumulation for the sentences for the charges on the second indictment, and thus in determining a combined total effective sentence. The combined total effective sentence is discussed at [99] below.
A new single non-parole period will also need to be fixed in accordance with s 14 of the Sentencing Act. The new non-parole period and the pre-sentence detention declaration are discussed at [99] below.
Pursuant to s 6AAA of the Sentencing Act, a declaration will be made that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 6 years’ imprisonment for the charges on the first indictment.
Circumstances of offending the subject of Judge Grant’s sentence
On 10 July 2016 at 12:55 am, the applicant and his co-offender, Stevan Salapura, drove to a residential property in Deer Park and climbed over the rear fence into the backyard. Salapura had been incorrectly informed that there was a cannabis crop at the property and he recruited the applicant to assist him to steal it. They were both disguised and armed with handguns despite being prohibited persons in respect of firearms (charge 1 on the second indictment). Salapura’s handgun was loaded but the applicant’s handgun was unloaded.
The applicant and Salapura attempted to force the back door open with a jemmy bar but were unsuccessful. The noise they made woke the residents of the property, Anthony Nguyen and Ema Hamzic. They heard the offenders walking towards the front of the house, and went to the front door.
The applicant and Salapura attempted to use the jemmy bar to force entry through the front door. Hamzic armed herself with a kitchen knife while Nguyen attempted to hold the door closed. The offenders forced their way through the front door, breaking the door frame and the lock (charge 2 on the second indictment).
Nguyen took the jemmy bar from Salapura and then punched him. Salapura took his handgun from his trousers and fired it six times. He hit Nguyen three times in the leg.
Hamzic struck Salapura with the kitchen knife, wounding him to the upper body.
Salapura ran along the hallway of the house, looking in each room before he and the applicant ran out of the front door. Before he left the property, Salapura said to Hamzic ‘Do you want to die?’, to which she replied ‘No, do you?’.
The applicant and Salapura left the property by climbing over the fence. The applicant drove Salapura to Sunshine Hospital for treatment, where he was admitted with stab wounds.
Nguyen was taken by ambulance to the Royal Melbourne Hospital where he was treated for bullet wounds to his right thigh, knee and calf. Hamzic suffered superficial injuries to her hands and arms.
Later on 10 July 2016, police arrested the applicant and executed a search warrant at his home. They located six rounds of 9-millimetre Luger ammunition (summary charge 3), as well as $5,100 in cash, car keys and jewellery believed to be the proceeds of crime (summary charge 4). The applicant was on bail for the charges on the first indictment at the time of this offending (summary charge 5).
In his victim impact statement, Nguyen stated that he needed to learn to walk again as a result of his injuries and feels pain every day. He also suffers from arthritis, loss of bone and cartilage and will require a knee replacement. He feels extremely depressed and anxious, and experiences paranoia, flashbacks and nightmares. He is no longer able to enjoy sporting activities.
In her victim impact statement, Hamzic said that she has permanent scaring from severe cuts to her hands. She has become paranoid, stressed, hypervigilant and withdrawn from her family. She suffers from extreme anxiety and has difficulty sleeping.
Judge Grant’s sentencing remarks
Judge Grant described the offending as ‘very serious’ and said that general deterrence, just punishment and denunciation were central sentencing considerations.[16] He had regard to the applicant’s history of offending and stated that, consequently, specific deterrence and protection of the community were also highly relevant sentencing considerations. He found the fact that the offending the subject of the second indictment was committed while the applicant was subject to a CCO was an aggravating feature of the offending, and stated that it was significant that he was also on bail for the charges on the first indictment.
[16]Judge Grant sentence [16], [19].
Judge Grant had regard to the applicant’s early plea of guilty for its utilitarian benefit and as being an acceptance of responsibility and indicative of remorse. He stated that the applicant is relatively young and that the principle of rehabilitation should be given some weight, but that, due to the seriousness of the offending and the applicant’s criminal history, rehabilitation is not a paramount sentencing factor. Judge Grant said that he was ‘guarded’ about the applicant’s prospects of rehabilitation due to his failure to take advantage of efforts made to support him, and his inability to deal with his drug addiction which had led to his offending.[17]
[17]Judge Grant sentence [55].
Regarding the sentence imposed by Judge Davis, and its relevance to the sentence to be imposed for the offending on the second indictment, Judge Grant said:
Her Honour fixed a non-parole period of four years and declared 213 days pre-sentence detention. This represented the 33 days you spent in custody from 12 February 2016 and 16 March 2016, added to the 180 days from the date when your bail was revoked, which was 13 January 2017, and the date of Her Honour’s sentence.
You are currently serving the sentence imposed by Judge Davis. Although this is not a prior conviction, it is a matter relevant to my sentence, because of the operation of the principle of totality. In today’s case, I am required to consider the total sentence that would have been imposed, had all of the offences fallen for consideration on the same occasion. To help me in this task, I have read the sentencing remarks of Her Honour Judge Davis. In sentencing you, I am required to ensure that the total sentence I am [to] impose is just and appropriate for all your offending. In addition, because all of the offences were unable to be dealt with at the one time, you have lost the opportunity for some concurrency as between the orders made on 12 July and the orders I make today. I take that into account in fixing your sentence. I have also taken care to avoid any double punishment in respect of the charges laid against you.
…
I direct that two and a half years of [the total effective] sentence [of 5 years’ imprisonment] be served cumulatively upon the Judge Davis sentence. This makes a total effective sentence across the two matters, of eight and a half years.
You are currently serving the non-parole period imposed by Judge Davis.
Under s 14 of the Sentencing Act 1991, I am required to fix a new non-parole period. I fix a new non-parole period of six and a half years. I declare 187 days pre-sentence detention. Obviously, the declarations of pre-sentence detention made by Judge Davis also apply.[18]
[18]Judge Grant sentence [51]–[52], [72]–[74].
Ground of appeal — Judge Grant’s sentence
The ground of appeal against Judge Grant’s sentence is in the following terms:
The sentencing discretion should be re-opened to the extent that the stated intention of the Learned Sentencing Judge as to pre-sentence detention can be put into effect.
Parties’ submissions — Judge Grant’s sentence
The applicant did not cavil with the individual sentences imposed by Judge Grant or the order for cumulation that he made. The applicant’s sole complaint relates to the pre-sentence detention declared by the judge in the record of orders.
The parties agreed that:
(a)although Judge Grant intended that the number of days to be deducted from the combined total effective sentence by way of pre-sentence detention would be 400 days, comprising the pre-sentence detention of 213 days declared by Judge Davis and the 187 days declared by Judge Grant, the record of orders does not refer to the 213 days declared by Judge Davis;
(b)although Judge Grant intended that both the combined total effective sentence and the new single non-parole period of 6 years and 6 months commence on 12 July 2017, being the date on which the applicant was sentenced by Judge Davis, he failed to specify a commencement date for the new single non-parole period; and
(c)the omissions referred to in (a) and (b) resulted in the correctional authorities:
(i)treating the new single non-parole period as commencing on 15 December 2017, being the date of Judge Grant’s sentence;
(ii)failing to take into account the 213 days of pre-sentence detention declared by Judge Davis; and
(iii)calculating the end date of the non-parole period as 10 December 2023 instead of 7 December 2022.[19]
[19]Neither party contended that correctional authorities had failed to take into account the pre-sentence detention declared by Judge Davis when calculating the end date of the combined total effective sentence.
Section 14 of the Sentencing Act provides as follows:
14 Fixing of new non-parole period in respect of multiple sentences
(1) If—
(a)a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and
(b)before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period—
the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.
(2)The new single non-parole period fixed at the time of the imposition of the further sentence—
(a)supersedes any previous non-parole period that the offender is to serve or complete; and
(b)must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed.
In R v Rich (No 2),[20] this Court held that s 14 requires a sentencing judge who fixes a new single non-parole period to specify the date of commencement of that period. The Court said that, while a sentencing judge has a choice of specifying either the date of the original sentence or the date of the new sentence, there should be a uniform practice of specifying the latter date. Brooking JA, with whom Winneke P and Charles JA agreed on this point, said the following:
My present impression is that sentencing judges at first instance, in fixing a new single non-parole period, have in general fixed one intended to commence on the date of their sentence. But in my opinion they are not constrained to do this …
…
[T]here are obviously two ways in which a judge might proceed in fixing the new period under s 14. The first is fix the new period by reference to the date of the sentence in respect of which the earlier non-parole period was fixed, that is to say, fix it as a period to run from that date. The second is to fix the new period by reference to the date on which the new sentence is being passed, that is, as running from that date. These two ways of proceeding differ only in form: there is no difference in substance …
…
Sentencers do, then, have a choice as regards the date from which they make a new single non-parole period run, a choice the exercise of which must result in the fixing of a different period according as one commencing date or the other is selected. Because the sentencer has a choice, it is essential that there be no doubt about which date has been adopted. Sentencing judges do, it seems, normally specify the date in fixing the period. If they do not do so, it is highly likely that the period fixed upon will show, in the light of the surrounding circumstances, which date was intended. But this will not necessarily be so, and in any event it is undesirable that a question of this kind should depend upon inference. I therefore think it desirable that there should be uniformity of practice and that what now appears to be general should become universal in the sense that all new single non-parole periods should be made to commence on the date on which they are fixed … I think it desirable, moreover, that … sentencing judges … in fixing new single non-parole periods hereafter, should expressly state the commencing date.[21]
[20](2002) 4 VR 155 (‘Rich’).
[21]Rich (2002) 4 VR 155, 165–7 [103], [106].
The parties contended that, in the light of the errors made by Judge Grant: the applicant’s application for leave to appeal should be granted; the appeal should be allowed; and this Court should make a sentencing order that stipulates a commencement date for a new single non-parole period and declares pre-sentence detention that takes into account the declarations of both Judge Davis and Judge Grant.
The Crown submitted that the uniform practice requiring all new single non-parole periods fixed by sentencing courts to be expressed to commence on the date on which they are fixed, which this Court enunciated in Rich, has created practical difficulties. That is because, it contended, upon a new single non-parole period being fixed to commence on the date of a subsequent sentence, a sentencing judge is required to take an additional step of deducting time already served for the previous sentence. The Crown submitted that the calculations are not always easy and some judges fail to make the deduction. Accordingly, so it said, the uniform practice creates a risk that sentencing courts may fall into error.
Decision on ground of appeal — Judge Grant’s sentence
It is readily apparent that the record of orders signed by Judge Grant failed to accurately reflect his intention that both sets of pre-sentence detention be declared and that the new single non-parole period commence from the date of Judge Davis’s sentence. Those omissions resulted in the non-parole period being approximately one year longer than Judge Grant intended. The interests of justice clearly require that this unintended outcome be rectified.
Before setting out the order we propose to make to rectify the position, we will address the Crown’s submission regarding the uniform practice enunciated in Rich. As this Court made clear in that case, s 14 of the Sentencing Act provides a choice of commencement dates. Nothing in Rich takes away that statutory choice. The Court enunciated the uniform practice as a means of ensuring that sentencing judges do not overlook the need to expressly specify a commencement date and thus leave this important matter to inference. Thus, the uniform practice has a sound rationale. However, the uniform practice is neither a rule of law nor a statutory requirement. Accordingly, where adherence to the uniform practice in a particular case presents practical difficulties, it is open to the sentencing judge to depart from it and to specify as the commencement date for the new single non-parole period the date on which an earlier sentence was imposed.
In all the circumstances, subject to any further submissions from the parties on the accuracy of our calculations, we will make an order to the following effect:
(a)The application for leave to appeal against the sentences imposed by Judge Grant on the second indictment is granted.
(b) The appeal is allowed.
(c)The sentence of 4 years and 6 months’ imprisonment imposed by Judge Grant for charge 2 on the second indictment is affirmed.
(d)The sentence of 2 years and 3 months’ imprisonment imposed by Judge Grant for charge 1 on the second indictment and the order for cumulation of 6 months of that sentence are affirmed.
(e)The sentences imposed by Judge Grant for the three summary charges and the orders for concurrency made by him in respect of those charges are affirmed.
(f)Two years and 6 months of the total effective sentence of 5 years’ imprisonment imposed for the charges on the second indictment be served cumulatively on the total effective sentence of 5 years and 6 months’ imprisonment imposed for the charges on the first indictment, making a combined total effective sentence of 8 years’ imprisonment.
(g)A new single non-parole period of 6 years’ imprisonment is fixed, commencing on the date of our order.
(h)It is declared that the period of 853 days is to be reckoned as already served in respect of the combined total effective sentence of 8 years’ imprisonment and the new single non-parole period of 6 years’ imprisonment.
(i)It is declared that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 7 years and 6 months’ imprisonment for the charges on the second indictment. We would have ordered that 3 years and 6 months of that sentence be served cumulatively on the total effective sentence of 8 years’ imprisonment which we would have imposed for the charges on the first indictment had the applicant not pleaded guilty to those charges, resulting in a combined total effective sentence of 11 years and 6 months’ imprisonment. We would have fixed a new single non-parole period of 8 years and 6 months.
The orders set out above are reflected in the following table:
Charge Offence Maximum Sentence Cumulation 1 Possessing a firearm while a prohibited person 10 years 2 years, 3 months 6 months 2 Aggravated burglary 25 years 4 years, 6 months Base Summary charges 3 Possession of cartridge ammunition without a licence 40 penalty units Fine of $2,500 – 4 Dealing with property suspected of being proceeds of crime 2 years 6 months – 5 Committing an indictable offence while on bail 3 months 2 months – Total Effective Sentence: 5 years Section 6AAA Statement: 7 years, 6 months’ imprisonment Combined total effective sentence: 2 years, 6 months of the total effective sentence be served cumulatively on the sentence of 5 years, 6 months imposed for the charges on the first indictment, making a combined total effective sentence of 8 years New single non-parole period: 6 years commencing on 8 October 2018 Pre-Sentence Detention Declaration: 853 days ---
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