Strangio v The Queen
[2017] VSCA 6
•25 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0251
| BRUNO STRANGIO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 January 2017 |
| DATE OF JUDGMENT: | 25 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 6 |
| JUDGMENT APPEALED FROM: | DPP v Strangio (Unreported, County Court of Victoria, Judge Chettle, 6 December 2016) |
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CRIMINAL LAW — Sentence — Appeal — Obtaining property by deception and attempting to pervert the course of justice — Sentence of 9 months’ imprisonment — Denial of procedural fairness — Leave to appeal granted — Appeal allowed — Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Armour Legal |
| For the Crown | Ms F Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
This case has had a tortured history.
The applicant faced trial in the County Court on charges of obtaining, and attempting to obtain, property by deception. On 3 August 2016 a jury found him guilty of eight charges of obtaining property by deception[1] (charges 1 to 4, and 6 to 9), and one charge of attempting to obtain property by deception[2] (charge 5). Later, on 11 August 2016, the applicant pleaded guilty to a charge of attempting to pervert the course of justice.
[1]Crimes Act 1958, s 81. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 321M and s 81. The maximum penalty is five years’ imprisonment.
On 24 August 2016, the applicant was sentenced to an aggregate sentence of nine months’ imprisonment on the nine deception charges, and for six months on the charge of attempting to pervert the course of justice. Three months of the sentence on the second indictment was ordered to be served cumulatively with the aggregate sentence on the first, leading to a total effective sentence of 12 months’ imprisonment, upon which the judge fixed a non-parole period of six months.
The applicant sought leave to appeal against the sentence on a ground which asserted that the sentencing discretion miscarried in that the judge ‘failed to have regard to a second Judicial Monitoring Report’. On 23 November 2016, this Court (Priest and Kyrou JJA) granted leave to appeal and allowed the appeal.[3] I need not rehearse the Court’s reasons, save to say that the Court found in essence that the sentencing judge had inadvertently denied the applicant procedural fairness.[4] As it was asked to do by the applicant’s counsel, the Court remitted the matter to the County Court pursuant to s 282(1) of the Criminal Procedure Act 2009.
[3]Strangio v The Queen [2016] VSCA 286.
[4]Ibid [32].
On 25 November 2016, a mention took place before the original sentencing judge in relation to the resentencing proceeding. The judge was informed that subpoenas would be issued for the applicant’s medical records and for the brief of evidence relating to an alleged assault upon the applicant whilst imprisoned. In the result, a plea hearing was listed for 5 December 2016, with a further mention listed for 2 December 2016 to deal with the return of the subpoenas.
As it transpired, on 5 December 2016, the sentencing judge told the parties that he had received the subpoenaed medical records, but the police brief of evidence had not arrived. The judge released the medical records to the applicant’s advisers, so as to consider which (if any) of the records they might seek to utilise on the plea. Later that day, the prosecution received a copy of the police brief of evidence (although it seems that the prosecution did not at any point receive a copy of the medical records provided to the applicant pursuant to subpoena). The further plea in mitigation took place later still that day. During the further plea, the applicant’s counsel tendered several exhibits (some being the product of the subpoenas).
The next day, on 6 December 2016, the judge passed sentence on the applicant. He imposed an aggregate sentence of nine months’ imprisonment on the charges of obtaining property by deception (charges 1 to 4, and 6 to 9) and of attempting to obtain property by deception (charge 5). On the charge of attempting to pervert the course of justice the judge imposed a sentence of six months’ imprisonment on the applicant. The total effective sentence was thus imprisonment for nine months.
It will be remembered that the applicant had originally been sentenced by the judge to a total effective sentence of 12 months’ imprisonment, upon which a non-parole period of six months was fixed. As part of the re-sentencing exercise, however, the six month sentence for attempting to pervert the course of justice was left to be served wholly concurrently with the aggregate sentence of nine months imposed for the deception offences. The net effect was that the original total effective sentence of 12 months’ imprisonment was notionally reduced to one of nine months’ imprisonment.[5]
[5]Originally, it will be remembered, three months of the six month sentence for attempting to pervert the course of justice was ordered to be served cumulatively upon the nine month aggregate sentence for the deception charges. See [3] above.
Against that background, the current source of difficulty will be appreciated.
Since the sentence of imprisonment originally passed was of 12 months’ duration, pursuant to s 11 of the Sentencing Act 1991 the judge had power to impose a non-parole period of six months. Thus, the applicant would have been eligible for conditional release on parole at the expiration of six months’ imprisonment. Although, of course, it cannot be predicted whether the applicant would have been granted parole, the fact remains that he would have had the opportunity of gaining conditional freedom at that point.
Having re-sentenced the applicant to a total effective sentence of nine months’ imprisonment, however, the judge had no power to impose a non-parole period.[6] Hence, somewhat ironically, although the applicant had achieved a three month reduction of the total effective sentence originally imposed, arguably he was worse off as a result, since he would necessarily need to serve an extra three months’ imprisonment before he had any possibility of release (conditional or otherwise).
[6]Section 11(2) of the Sentencing Act 1991 provides:
(2) If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.
In his sentencing reasons, the judge remarked that he had reduced the total effective sentence because of various mitigating factors advanced on the plea on 6 December 2016. So much was true. The total effective sentence was indeed reduced from 12 months to nine months. Remarkably, however, the judge did not advert to the fact that the effect of what he had done was to ensure that the applicant would potentially serve an extra three months’ imprisonment. King Pyrrhus might well have sympathised with the applicant’s position.
Unsurprisingly, the applicant sought leave to appeal against the sentence imposed on 6 December 2016. He advanced three grounds:
1. The sentencing discretion miscarried in that the Applicant’s Counsel was not given the opportunity to make submissions as to:
(a) the proposition that imposing a Community Correction Order upon the Applicant would be ‘totally impracticable and onerous’;
(b) the imposition of a sentence that would increase the date upon which the Applicant would first become eligible for release from custody by three months.
2. In circumstances where:
(a) the Learned Sentencing Judge accepted that there was material relating to the hardship that the Applicant had experienced and would continue to experience in custody; and
(b) the Learned Sentencing Judge accepted that this material justified a reduction in the sentence that had previously been imposed on the Applicant —
the Learned Sentencing Judge erred by increasing the period that the Applicant would remain in custody before first becoming eligible for release by three months.
3. The Learned Sentencing Judge erred in proceeding on the basis that in allowing the appeal against sentence the Court of Appeal had not determined that a different sentence should be passed.
During the further plea on 5 December 2016, primarily the applicant’s counsel asked the judge to consider imposing a period of imprisonment in combination with a community correction order (‘CCO’). At no stage of the further plea did the judge indicate to the applicant’s counsel that he saw any practical difficulties associated with the imposition of a CCO, or that the imposition of a further CCO would be too onerous for the applicant.[7] More importantly, perhaps, at no stage did the judge indicate that he was considering the imposition of a sentence, the practical effect of which would be to increase the time that the applicant would need to serve before first becoming eligible for release from custody. The applicant’s counsel contends that as a result of the judge’s failure to advert to these matters, the applicant was denied procedural fairness.
[7]The applicant was subject to a CCO that had been imposed by Hollingworth J. See Strangio v The Queen [2016] VSCA 286, [13]–[15].
The respondent contends that there was no denial of procedural fairness. It was submitted that the applicant’s counsel had full opportunity to address on the possibility of the imposition of a CCO. Further, the respondent’s counsel argued that, as a matter of law, the sentence imposed by the sentencing judge on remittal was less punitive than the sentence originally imposed. It was submitted that a sentencing judge must impose a sentence on the basis that the prisoner may be required to serve the entirety of the head sentence. Section 5(2AA)(a) of the Sentencing Act 1991[8] makes clear, so it was submitted, that when sentencing an offender, a sentencing judge must not have regard to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action. Hence, whether or not the Adult Parole Board might have granted parole to the applicant, or at what stage this might have occurred, if a head sentence and non-parole period were imposed, was not a matter to which the sentencing judge could have had regard. By imposing a sentence of nine months’ imprisonment, the judge imposed a sentence that was less punitive than that originally imposed. The applicant had an opportunity, after the remittal, to make full submissions about the structure of the sentence to be imposed. It was submitted that the applicant’s counsel made a tactical decision to focus almost exclusively on a submission that a combined sentence ought be imposed. For these reasons, the applicant was not denied procedural fairness.
[8]Section 5(AA)(a) provides:
(2AA)Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to —
(a) any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind; …
In the main, I do not accept the respondent’s submissions.
With respect to the sentence originally imposed, the applicant had the opportunity — which may or may not have been realised — to gain conditional freedom at the expiration of six months. That opportunity was denied to him by the sentence passed on remittal. In my opinion, the applicant was entitled to assume that the judge would not make an important decision, critical to the sentence to be imposed — which had the effect of extinguishing any chance that he had of gaining freedom after serving six months — without drawing that possibility to the applicant’s attention and affording him a chance to persuade the judge to approach the matter differently.[9] Thus, in my view, the applicant was denied procedural fairness in an important respect.
[9]Parker v DPP (1992) 28 NSWLR 282, 296; Brand v Parson [1994] 1 VR 252, 257; Davey v The Queen [2010] VSCA 346, [27]–[33].
As has been recognised, procedural fairness must be upheld for its own sake as well as for its consequences. It is the fairness of the procedure adopted which is important, rather than the fairness of the outcome. If procedural unfairness is established, therefore, this Court could only refuse to intervene if satisfied that, had the applicant been afforded the opportunity to make informed submissions on the matter, it could not have yielded a different result.[10] In the circumstances, I could not so conclude. The sentencing discretion has thus been re-opened and this Court must sentence the applicant.
[10]Davey v The Queen [2010] VSCA 346, [33].
It is unnecessary to repeat the details of the applicant’s offending. They are summarised in this Court’s earlier judgment.[11]
[11]Strangio v The Queen [2016] VSCA 286, [6]–[11].
Given the nature of the applicant’s offending, were it not for the matters which have intervened, I would have regarded the sentence originally passed as very lenient. It is clear, however, that the circumstances of the applicant’s custody have been rendered more onerous than would have been foreseen. I am content to adopt the judge’s description of them in his most recent sentencing remarks:
Turning to the new evidence. Since being in custody, you have been the victim of a physical assault and have been threatened. You were punched to the face on 25 October this year whilst at Loddon Prison. A statement made by you in relation to that assault is Exhibit C.
Although I would be reluctant to accept much of anything you might say at face value, I do accept that you were repeatedly punched, suffered a black eye and were threatened. Although you have been moved from Loddon I accept that you fear you are at risk in custody because you have complained to police and will be giving evidence against a fellow prisoner.
Exhibit G, an affidavit by Brendan Money from Corrections, sets out your prison history. On 20 September this year you were involved in an argument at Fulham Correctional Centre and you were moved to a management unit for your personal safety. As a result, you were in 23 hour lockdown until you were moved to Port Phillip Prison and then Loddon.
Following the assault on 25 October, you were transferred to Port Phillip on 4 November. Because of concerns for your safety, you were again in 23 hour lockdown until 8 November when you were moved to Marngoneet where you were again separated for your personal safety.
On 16 November 2016, you were classified as a protection prisoner and transferred to the Karreenga Protection Annex at Marngoneet. You are allowed out of your cell 12 hours a day at that unit.
It is clear that your problem has been managed by Corrections and you will probably serve the balance of any sentence in protection. You will mix with fewer prisoners as a result, however you will not be subject to long periods of lockdown.
It is indeed unfortunate that you have been assaulted. You have been displaced, moved around in the prison system and have been subject to periodic lockdown in your cell.
I note also that the applicant has agreed to give evidence against his assailant, who has extensive prior convictions.
Quite apart from the difficulties that the applicant has encountered in gaol, the Court is justified in taking into account the unhappy fact that the applicant has twice had to seek relief from this Court due to his being denied procedural fairness. The extra stress and hardship thereby occasioned is a legitimate reason for extending leniency.
For these reasons, I would grant leave to appeal and allow the appeal. I would set aside the sentences imposed in the County Court on 6 December 2016. On the eight charges of obtaining property by deception (charges 1 to 4, and 6 to 9), and one charge of attempting to obtain property by deception (charge 5),[12] I would impose an aggregate sentence of nine months’ imprisonment. Pursuant to s 27 of the Sentencing Act 1991, I would suspend five months of that sentence for a period of 12
months. On the charge of attempting to pervert the course of justice,[13] I would impose a sentence of four months’ imprisonment. I would declare that the period of 143 days be reckoned as already served pursuant to the sentence.
[12]Indictment A12504795.6.
[13]Indictment G10117028.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, had the applicant not pleaded guilty to attempting to pervert the course of justice, I would have imposed a sentence of 12 months’ imprisonment upon him.
Finally, I wish to make it clear (if it is not already so), that the sentence imposed by this Court should be seen to reflect the very unique circumstances of this case. Ordinarily, criminality such as the applicant’s would merit a sentence of far greater severity.
SANTAMARIA JA:
I agree.
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