Talbot v The Queen
[2012] VSCA 118
•8 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0256
| LUKE TALBOT | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2011 0257
| STEPHEN ANTHONY DUX | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL ACJ and NEAVE JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 May 2012 |
| DATE OF JUDGMENT | 8 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 118 |
| JUDGMENT APPEALED FROM | DPP v Dux & Talbot (Unreported, County Court of Victoria, Judge Hampel, 20 September 2011) |
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CRIMINAL LAW – Sentencing – Range – Submission on range by Crown prosecutor – Submission questioned by sentencing judge – Prosecutor unable to explain or justify submission – Judge requested revised submission – After reconsideration, Crown submitted significantly higher range – Initial submission clearly wrong – Whether change of position created unfairness – Whether plea agreement departed from – Whether sentence discount warranted – R v MacNeil-Brown (2008) 20 VR 677 discussed.
CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, kidnapping, recklessly cause serious injury – Sustained offending – Vulnerable victim – Victim suffered very serious injury – TES 7 y, NPP 4 y 6 m – Not manifestly excessive – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Talbot | Mr S Holt with | Victoria Legal Aid |
| For the Appellant Dux | Ms K Churchill | Pica Criminal Lawyers |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ
NEAVE JA:
Summary
Since the 2008 decision of this Court in R v MacNeil-Brown[1] reaffirmed the utility of Crown submissions on sentencing range, such submissions have again become a routine part of plea hearings. As the Court made clear in MacNeil-Brown, the purpose of a Crown submission on range is to assist the sentencing judge in determining the appropriate sentence for the case at hand. It is designed to promote consistency of sentencing and to reduce the risk of appellable error.[2]
[1](2008) 20 VR 677 (‘MacNeil-Brown’).
[2]Ibid 679 [4].
These appeals, which concern the effect of a change in the Crown range in the course of a plea hearing, provide an opportunity to restate the nature and purpose of such submissions and to emphasise that, if they are to be of real assistance to judges, submissions on range must be well-founded.[3] The obligation of the prosecutor is not discharged by the mere identification of a numerical range for the total effective sentence and for the non-parole period. The submission must be supported by ‘a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors.’[4]
[3]See W C B v The Queen [2010] VSCA 230, [52]; Sarvak v The Queen [2011] VSCA 300, [24]; Azzopardi v The Queen [2011] VSCA 372, [70]–[73].
[4]MacNeil-Brown (2008) 20 VR 677, 681 [12].
A sentencing judge is, of course, free to disregard a Crown submission on range. It has the same status as any other submission of law, and will be given only such weight as the cogency of the supporting analysis warrants.
In the present case, the Crown’s submission on range was wholly lacking in supporting analysis. This became apparent when the judge suggested that the range put forward seemed unduly low given the seriousness of the offending, and asked the prosecutor to explain the basis of the submission. When he was unable to do so, her Honour requested the provision of a ‘properly considered’ submission.
After reconsideration, the prosecutor provided a revised range, which was significantly higher than first submitted. The defence pointed out that the pleas of guilty had been entered on the basis that the original submission on range would be advanced (and, presumably, maintained) on the plea. The change in the Crown’s position was said to have worked an unfairness which necessitated a sentencing discount.
The sentencing judge rejected that submission, holding that she was bound to impose the sentence which she considered to be appropriate, taking account of the gravity of the offending and all other relevant factors. For the reasons which follow, we would affirm her Honour’s decision. The sentences imposed were unimpeachable, in our view.
A change in the Crown’s submission on range, whether or not prompted by questioning from the sentencing judge, simply reflects the nature and function of such submissions. The making of such a submission is an aspect of the duty of the prosecutor to assist the court.[5] If, on reconsideration, the submission initially advanced is seen to have been wrong, the Crown is not only entitled but obliged to correct it.
[5]Ibid 678 [2].
The more carefully considered the initial submission, the less likely it is that there will be any occasion for it to be changed. But every person pleading guilty should be advised that, whatever advance indication might have been given of the proposed Crown submission on range, there is no greater guarantee than with any other submission of law that it will be accepted by the Court to which it is made.
Appeals against sentence
Each of the appellants pleaded guilty to aggravated burglary (count 1), recklessly causing serious injury (count 2), kidnapping (count 3), theft (count 4) and handling stolen goods (count 5). They were each sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Aggravated burglary
25y
3y
Base
2
Recklessly causing serious injury
15y
2y 6m
2y
3
Kidnapping
25y
1y 6m
1y
4
Theft
10y
6m
6m
5
Handling stolen goods
15y
12m
6m
Total Effective Sentence:
7y
Non-Parole Period:
4y 6m
6AAA Statement:
9y 4m, with a NPP of 6y 10m
They now appeal, by leave, against their sentences. The circumstances of the offending were as follows.
On 20 June 2009, the victim, Michael Selleck, was asleep in his room at a boarding house in Altona. He had locked the door of the room. Dux resided in a room opposite Selleck’s room. Some time between 9:00 pm and 10:00 pm, Dux and Talbot forced open the locked door to the victim’s room and entered it (charge 1 – aggravated burglary). They picked up items and threw them at the victim, and punched, kicked, jumped on and choked him (charge 2 – recklessly causing serious injury). They demanded that the victim give them all the money he had.
The appellants then dragged the victim out of the house and forced him into the back seat of a dark blue Commodore that was parked outside (charge 3 – kidnapping). Whilst Dux drove the vehicle, Talbot sat next to the victim and kicked him. The victim was driven to a nearby ATM, where he was forced to provide his debit card and PIN number to the appellants, who withdrew all of the money from the victim’s account, totalling $220 (charge 4 – theft). The appellants then drove away with the victim, with Talbot continuing to punch and kick him.
The victim managed to escape from the car and run away. After hiding in the backyard of a nearby house, he was able to seek help from residents, who called for an ambulance. The victim suffered numerous severe injuries, including a 13mm x 8mm subarachnoid contusion/haemorrhage in the frontal region of his brain, which required surgery, an undisplaced left orbital fracture and facial swelling.
The blue Commodore that had been used in the offending was traced to Mary Nunez, the partner of Dux. Police searched the hotel room occupied by Ms Nunez and found a number of items, which were ultimately traced to a theft from a house in South Melbourne (charge 5 – handling stolen goods). Talbot was arrested, and subsequently Dux was arrested in South Australia and extradited to Victoria.
The sentencing range issue
How the problem arose
The appellants were committed to stand trial on 2 May 2011, and originally intended to defend the charges at trial. But in March 2011, as part of pre-trial negotiations, the prosecutor informed their legal representatives that the Crown submission on sentencing range would be as follows: total effective sentence (TES) – between 4 and 5 years’ imprisonment; and non-parole period (NPP) – between 2 and 3 years’ imprisonment. On that assumption, each accused entered pleas of guilty to the five charges he faced.
As noted earlier, the key complaint on these appeals relates to the Crown’s having amended the sentencing range it had initially put forward, in response to questioning from the judge. Talbot’s first ground of appeal is that:
The learned sentencing judge erred in failing to reduce the individual sentences imposed on the charges, or to alter the orders for cumulation as between those sentences, as a result of the Crown’s conduct in resiling from the sentencing range provided to the applicant before he pleaded guilty.
Similarly, ground 4 in Dux’s notice of appeal is that:
It was inappropriate for the learned sentencing judge to sentence in accordance of a ‘revised’ Crown range, and request a breakdown of individual sentences and orders for cumulation from the Crown. Further, the learned sentencing judge erred in failing to reduce the sentence imposed as a result of the conduct of the Crown.
The Crown submission on the plea began with the prosecutor characterising the appellants’ offending as ‘serious examples of serious offences’. He pointed out that the maximum penalty for two of the offences (aggravated burglary and kidnapping) was 25 years’ imprisonment. Consistently with what had been said in the plea negotiations, the prosecutor submitted that the range for the TES was 4–5 years and for the NPP 3–4 years.
The judge requested a breakdown of the sentences for each offence, so that she could understand ‘how the Crown comes to that 4–5 years.’ The prosecutor then said that the aggravated burglary was the most serious of the offences and that the ‘general tariff’ for that offence was ‘in the 5–6 years [range]’. Her Honour responded:
That’s right, and that’s why I’m wondering about this four to five years. If you look at the individual components of those three major offences, how the Crown would come at something that is as low as four to five years.
Her Honour said her preliminary view was that the Crown range was low for offences of such a high degree of seriousness. As the prosecutor acknowledged, the appellants had caused ‘very significant injuries to an already vulnerable man’, including bleeding inside the brain. The prosecutor said his ‘instructions’ on sentencing range did not extend beyond the TES and NPP. There was no breakdown into sentencing ranges for individual offences. He agreed with the judge that ‘sometimes doing the breakdown can be very helpful’.
Her Honour said that she needed to understand the reasoning behind the range put forward. She said that the decision in MacNeil-Brown[6] ‘makes it very clear that I should not lightly depart from a Crown range, whether it is above it or below it’. (In fact, as already mentioned, a sentencing judge is entirely free to reject a Crown submission on range, as with any other submission of law.) The judge adjourned the plea, requesting the prosecutor to provide a ‘properly considered’ sentencing range.
[6](2008) 20 VR 677.
At this point, counsel for Mr Talbot informed the judge that the Crown’s submission on range had been part of the settlement of the pleas. He submitted that the range should therefore not be departed from:
Notwithstanding the pleas of both myself and my learned friend here, we sought a range from the Crown as in the process of negotiating a settlement of this matter, and as your Honour would be aware, clients take some confidence in the range that's being quoted pre-settlement. I know certainly it is a range that is not binding on the court at all, but it ought not be departed from in my submission, without cogent - close attention to the ramifications of that departure, because these are serious maters and notwithstanding the remorse and regret and empathy of the co-accused and Mr Talbot, they are still important matters that were in the balance in the negotiations leading up to this plea.
Her Honour responded as follows:
It may well require some significant further submissions from the Crown and from you about what's the correct approach in those circumstances. I mean, as you rightly acknowledge, there’s a real obligation of fairness and consistency if a range is sought from the Crown in the context of plea negotiations, but ultimately the decision about the sentence is my responsibility.
I would need - certainly, my view at this stage is it's low given the overall offending. So, I would - that's why I want to understand the reasoning behind it, and the breakdown of the individual offences, so as to better assist me in evaluating whether my response to date is wrong, is out of kilter with current sentencing practices, or is indeed in line with them, and whether there has therefore been a miscalculation on the part of the Crown in the range it came up with when it came to you. Then, if that’s so, working out how fairness to the accused works in that context.
Ten days later, the Office of Public Prosecutions sent the following email to the judge’s associate:
The Crown has reconsidered its position and advises the following:
When instructions as to sentence were obtained from a Crown Prosecutor, not all the relevant sentencing factors were known. It was therefore inappropriate to have put the range of 4 to 5 years on the top and 2 to 3 years on the bottom. A more appropriate range would have been 6 to 7 years on the top and 4½ to 5½ on the bottom.
The Crown is embarrassed that this original range had been given to the legal representative of the accused, Dux, by telephone on 9 March 2011 prior to his plea of guilty and to the legal representation (sic) of the accused, Talbot, on 25 March 2011, also prior to this plea.
Her Honour’s associate responded by requesting that the prosecution provide a breakdown of the individual sentences, as her Honour had requested on the first day of the plea. On 5 July 2011, a further email was sent by the Office of Public Prosecutions to the judge’s associate, which stated:
The Crown Prosecutor who was consulted regarding the revised (and original) range is currently away on leave and will not return until the middle of August.
I have consulted with another, more senior Crown Prosecutor, this morning who has revised the bottom part of the range, slightly reducing it. The range for the minimum term is now between 4 and 5 years’ imprisonment (previously 4.5 to 5.5 years).
Please note that the range for the head sentence remains the same. It remains at between 6 and 7 years. The range can be broken down as follows:
Count 1 − 2y imprisonment.
Count 2 − 2y imprisonment cumulative upon count 1.
Count 3 − 18m imprisonment – 12m cumulative upon count 1.
Count 4 − 6m imprisonment – 6m cumulative upon count 1.
Count 5 − 12m imprisonment – 6m cumulative upon count 1.
Later that day, a further email was sent by the Office of Public Prosecutions to the appellants’ representatives, which stated that:
In an attempt to rectify this unfortunate situation, I have sought instructions as to the fairest resolution. My instructions are that, as both pleas were entered with the original range of four to five on top and two to three on the bottom in mind, the Crown would not oppose any application for a change of plea, nor would it lead any evidence of any plea of guilty entered at any trial in relation to this matter, should your clients wish to do so.
When the hearing of the plea resumed, her Honour drew the attention of counsel to the report of the Sentencing Advisory Council on Current Sentencing Practices for Aggravated Burglary,[7] which provided a qualitative analysis of sentences imposed for that offence. The prosecutor accepted that there were no new facts before the Crown which explained the revised sentencing range. The problem with the original submission was, he said, that
the facts weren’t properly considered or applied, or that the information provided was misapplied or misapprehended. The fact is, your Honour, that the Crown prosecutor who gave this range has made a mistake. That Crown prosecutor did not fully understand all of the relevant sentencing facts, or the circumstances of the offending.
[7]Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices, June 2011.
The prosecutor confirmed that the Crown would not oppose any change of plea and would give an undertaking that nothing said on the plea would be used at the trial, so that the offenders were in no worse position than they would have been if they had not pleaded guilty. The prosecutor said:
Mistakes have been made, the Crown is embarrassed about it, but the remedy here is that the two defendants can revert back to how they were before entering these pleas.
The prosecutor acknowledged that the anguish occasioned to the appellants had been ‘monumental’.
Counsel informed the judge that neither appellant would be changing his plea. Counsel for Talbot said that it would be impossible for his client to change his plea. At the committal, Talbot had initially put forward the defence that he had gone to the assistance of the victim, rather than being an offender. Any change of plea would have required him to change solicitors and he would have been unable to give evidence at the trial. Dux’s counsel also submitted that, despite the Crown undertaking, it would be difficult for her client to give evidence in his own defence if he changed his plea.
It was submitted for the appellants that they had ‘a legitimate sense of grievance’ and that her Honour should impose a lower sentence on each of them than she would otherwise have done because of their sense of ‘unfairness of treatment’. They also relied on ‘the practical loss of [their] entitlement to defend these charges and the importance of maintaining confidence in plea negotiations.’
Her Honour’s reasons
In her reasons, the judge referred to the published policy of the Director of Public Prosecutions on revising a sentencing range, which states:
It is the Director’s policy that the Crown’s position as to the appropriate sentencing range will ordinarily not be altered unless there are new mitigating or aggravating matters that were not considered when the sentencing range was initially provided. The Crown’s position on range should not be altered because of indications from the sentencing judge that they regard the Crown’s position as incorrect. In the event that the sentencing judge invites the Crown to reconsider the sentencing range submitted to the court, no new or amended range is to be submitted without obtaining a prior approval of the Director or, in his absence, the Chief Crown Prosecutor.[8]
[8]DPP v Dux & Talbot (Unreported, County Court of Victoria, Judge Hampel, 20 September 2011) (‘Reasons’), [78].
Her Honour described the circumstances in which the Crown’s range was revised, and said:
There are legitimate criticisms that can be made of the shift in Crown position and whether it has influenced a decision to plead guilty or not, but, in my view they do not justify a reduction of the sentence below what I think is appropriate by reason of revision of the prosecution range even if, as here, it was a factor in the accused’s decision to plead guilty. In my view the accused should be no better or worse off than they would be if the sentencing judge had simply indicated that he or she did not accept the prosecution range, but the prosecution had not sought to revise it.[9]
[9]Ibid [87].
The judge said that, if an accused satisfied the Court that the decision to plead guilty had been influenced by the Crown’s proposed submission on range, the appropriate remedy was to permit the accused to change his or her plea, although her Honour acknowledged that this would not always be ‘a palatable option’.[10] She noted that, in this case, the plea negotiations had resulted in the Crown not proceeding with charges of intentionally causing serious injury and the appellants’ being charged with recklessly causing serious injury instead.
[10]Ibid [88].
Her Honour concluded that the Crown’s change of position could not affect her obligation to impose an appropriate sentence:
I am not satisfied that my sentencing discretion should be constrained by limiting my consideration of the appropriate sentence to the original range advanced by the prosecution or by reducing it by reason of the sense of grievance generated by the change of position of the Crown.[11]
[11]Ibid [89].
Her Honour went on to address the issue of whether it was appropriate for the Crown to provide a breakdown of the range, offence by offence, or whether it should have confined its submissions to the total effective sentence. She referred to the passage in MacNeil-Brown[12] in which this Court said that:
The range thus nominated must be based on a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices and relevant aggravating or mitigating factors.
[12](2008) 20 VR 677, 681 [12].
In sentencing the appellants, her Honour said:
Although I have analysed the individual sentences fixed on by the prosecution in respect of aggravated burglary and recklessly cause serious injury in some detail it is clear that I must not lose sight of the fact that the sentencing discretion is mine and I must impose a sentence that reflects my assessment of your criminality in respect of each individual offence and that reflects your overall criminality.[13]
[13]Reasons [107].
The appeal submissions
On the appeal, counsel for Talbot conceded that the sentencing judge was not bound by any range put forward by the Crown. He nevertheless maintained the submission advanced on the plea, to the effect that her Honour should have reduced the sentence below what she would otherwise have imposed, in order to:
i. reflect the legitimate sense of grievance that the accused feels as a result of the change in the Crown’s range;
ii.reflect the fact that the accused has lost the chance to defend the case at trial through no fault of his own; and
iii.protect the sanctity of pre-plea agreements by marking the conduct of the Crown and discourage what occurred in this case.
Counsel contended that plea negotiations were an essential part of the criminal justice system and that the utility of such negotiations would be undermined if the Crown range put forward during the plea hearing was different from the range foreshadowed in the plea negotiations on which the accused had relied in deciding to plead guilty. According to the written submission, the Crown range
legitimately shapes the advice that is given to an accused person about the likely sentencing outcome, which is in turn an important component in the decision to plead guilty. The confidence that the accused’s representatives have in the range proffered is critical to the advice that can be given to the accused about the range of likely outcomes.
In this case, counsel submitted, the Crown’s ‘wholesale revision of the sentencing range’ had worked a real unfairness, and had created a ‘state of anguish’ in the appellants. He argued that the Crown’s original submission on sentencing range was ill-considered and it was this which had created the unfairness. The Court should ‘mark its disapproval’ by adopting an approach analogous to that which applies where there is a delay in the prosecution of an offence, resulting in unfairness to the offender.[14] The Crown’s ‘contribution to the unfairness’ should have been treated as a mitigating factor and should have resulted in the imposition of a lower sentence.
[14]He relied on R v Nikodjevic [2004] VSCA 222; R v Whyte (2004) 7 VR 397.
Counsel argued that Talbot had a ‘reasonable expectation’ that the range put forward by the Crown in plea negotiations was appropriate. It was not a realistic option for him to withdraw his guilty plea in response to the change of range. He would have suffered severe emotional consequences because he had believed the matter would be resolved by pleading guilty. If the plea was withdrawn, he would have been required to serve a further period on remand awaiting his trial.
Counsel for Dux adopted these submissions. She contended that, if the revised range had been part of the original plea negotiations, Dux would have chosen to go to trial. The conduct of the Crown amounted to ‘a powerful mitigating factor’. It was ‘abhorrent’, counsel submitted, that the initial range was not based on all the relevant facts. If the Crown were able to recalculate the initial range ‘simply because their submissions are called into question’, it would completely undermine ‘the entire pre-trial process and the principles laid down in MacNeil–Brown.’
Senior counsel for the Crown responded by emphasising that, whatever the Crown might foreshadow as a submission on sentencing range, defence counsel had the responsibility of advising his or her client as to the likely sentencing outcome. An accused who is considering whether to plead guilty to a particular offence takes the risk that the judge will not accept that range. In the present case, he said, the appellants’ representatives should have advised them that the original range put forward by the Crown was ‘obviously too low’ and that the judge was unlikely to accept it.
No unfairness flowed, it was said, from the fact that the Crown had reconsidered and then revised its submission following the judge’s questioning. This simply reflected the nature of the process and, in particular, the nature of any submission on range. A submission as to range was a submission of law, which might be accepted or rejected by the judge or modified by counsel as the result of exchanges with the judge.
Counsel for the Crown argued that the cases which required delay to be taken into account in mitigation were not analogous. The appellants would have been able to proceed to trial if they had chosen to do so, and the Crown had undertaken not to rely on matters of which they had become aware during plea negotiations. In these circumstances, the change in the range could not have produced any legitimate sense of grievance on the part of the appellants.
The function of Crown submissions on range
In MacNeil-Brown, the Court held that a prosecutor had a duty to make a submission on sentencing range where requested to do so by the sentencing judge, or where the prosecutor considered that there was a significant risk that the failure to do so would result in sentencing error.[15] The duty to put forward a range was an aspect of the prosecutor’s role to make submissions assisting the court.
[15]MacNeil-Brown (2008) 20 VR 677, 678 [3].
Experience since MacNeil-Brown indicates that many sentencing judges find it of assistance to have a Crown submission on range. That ‘manifest excess’ remains the single most common ground of appeal in offender appeals against sentence[16] reinforces the need for well-considered submissions on range.
[16]Sentencing Advisory Council, Sentence Appeals in Victoria – Statistical Research Report (2012) [6.35].
Of course, a submission on range is not binding on the sentencing judge. As Maxwell P, Vincent and Redlich JJA said in MacNeil-Brown:
No judge is bound to accept counsel’s submission on any point, and a sentencing judge is entirely free to come to a different conclusion. Indeed, the judge is bound to do so if, in his/her judgment, a sentence outside the nominated range is called for and can lawfully be imposed. The weight to be given to a submission is to be judged according to the merits of the argument(s) which it advances. It would be wrong for a judge to accord weight to a Crown submission on sentence merely because it came from the Crown.[17]
[17]MacNeil-Brown (2008) 20 VR 677, 691 [45].
As with any other submission of law, therefore, there is no guarantee that a sentencing judge will accept that the Crown’s submission on range is correct. As the judge in the present case correctly emphasised, the question of the applicable range – and the appropriate sentences to be imposed for this offending – was for her alone to determine.
The obligation of those advising the appellants was to make sure that their clients understood this. They were obliged, moreover, to make their own assessment of the appropriateness of the range which the Crown proposed to put forward. This was a necessary step in advising on the likely outcome were the appellants to plead guilty.[18]
[18]G A Sv The Queen (2004) 217 CLR 198, 210–11 [29] (‘G A S’).
It should have been apparent, in our view, that the proposed range was very low, given the separate (and serious) criminality involved in each of the offences of aggravated burglary, kidnapping and reckless causing of (very) serious injury. There was, as a result, a real and obvious risk that a sentencing judge would reject the Crown’s submission on range and impose higher sentences.
In those circumstances, the judge’s questioning of the initial submission on range, and the Crown’s reconsideration and revision of the range, worked no unfairness. Given the nature and purpose of a Crown submission on range, these were unremarkable events. Once the Crown came to realise that its initial submission was wrong, its (continuing) obligation to assist the judge necessitated the provision of a revised submission. Indeed, given the very low range initially advanced, some such course of events might well have been anticipated.
As senior counsel for the Director properly acknowledged, it reflects no credit on the Crown that the initial submission on range was so badly wrong. In the revised submission, the lower end of the NPP range was doubled (from 2 years to 4 years) and the lower end of the TES range was increased by 50 per cent (from 4 years to 6 years). It is necessary, therefore, to restate the minimum requirements for a Crown submission on range, as defined in MacNeil-Brown:
The range thus nominated must be based on a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors. All of these matters should be referred to in the course of the submission, so that the court understands how the Crown contends that the relevant matters should be brought to bear. As we have sought to emphasise, the function of a submission on range is to assist the court and reduce the risk of error. Importantly, the figures used to define the limits of the range can never be said to be more than indicative of where those limits lie.[19]
[19]MacNeil-Brown (2008) 20 VR 677, 681 [12].
Had the initial submission on range been prepared and presented in this way, it is likely that there would have been no occasion for a change in the range. It does not follow, however, that this Court should ‘mark its disapproval’ of the Crown’s conduct by reducing otherwise lawful sentences. To do so would be to exercise the sentencing discretion for an improper (extraneous) purpose. There is no analogy with those cases where delay can constitute a ‘powerful mitigating factor’, warranting a reduction in sentence.[20]
[20]R v Merrett (2007) 14 VR 392, 400 [35]–[36].
There is one final matter on this aspect of the appeals. We were informed by senior counsel for the Director that the practice of Crown Prosecutors varies as to whether or not an indication is given, during plea negotiations, of the Crown’s intended submission on range. Counsel indicated that his own view, and that of the Chief Crown Prosecutor, was that this should not be done. Two reasons were given. The first was that, at the time of plea negotiations, the Crown was rarely in possession of all of the necessary information, especially as it related to the circumstances of the offender. The second was that the making of a submission on range was an aspect of the prosecutor’s duty to the Court, and was therefore not an appropriate matter for negotiation.
We think there is considerable force in those arguments. Ultimately, however, this is a matter of policy for the Director and we express no view about it. It is sufficient for present purposes to say that, in any case in which such an indication is given in advance, defence counsel must be astute to ensure that they, and their clients, place no more reliance on it than is reasonably justified.
Plea agreements
Our conclusion is reinforced by the law governing the effect of a plea agreement. As we have said, the appellants submitted that an injustice had occurred because the Crown had departed from the proposed range which it had put forward as part of the plea agreement.
In G A S,[21] it was submitted that an injustice had arisen because the conduct of the prosecution (on a Crown appeal against sentence) had been contrary to the plea agreement previously made with the offenders. The High Court rejected that submission, holding that it was
for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted) …
… [T]here may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.[22]
[21](2004) 217 CLR 198.
[22]Ibid 211 [30]–[31] (emphasis added).
What was said in G A S applies equally to the present case. The sentencing judge’s ‘responsibility to find and apply the law [was] not circumscribed by the conduct of counsel’. As the High Court stated in G A S, this is a matter of fundamental principle.[23]
[23]Ibid 210 [27].
Appeal against sentence – Dux
Dux relies on three further grounds, as follows:
1. That the individual sentences, the extent of cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive.
2. Insufficient weight was given to the plea of guilty.
3.Insufficient weight was given to the principles of totality and the substantial cumulation between counts 1, 2, 3 and 4 resulted in a sentence which breaches the totality principle.
The judge noted that Dux was then 36. He was 34 at the time of offending.[24] He left school at the age of 15, entered into a relationship when he was 17 years old, and had two children with his partner. Dux began abusing drugs when the relationship ended four or five years later.
[24]Reasons, [37].
The judge said that Dux was ‘doing well’ by his late 20s and early 30s, as he had been abstinent from drugs for several years, and was working on his father’s horse property. But he began using illicit drugs again when he became involved in a relationship with a woman who was also a drug user. Around two months prior to the offences, Dux relocated to Melbourne to ‘get away’ from his partner and drug use. He formed a relationship with Mary Nunez, which continued at the date of sentence.
The judge referred to Dux’s explanation for offending as his use of amphetamines. She accepted that he had ‘expressed shame and remorse’ and had indicated empathy for the victim.[25] Her Honour referred to Dux’s ‘significant criminal record’, which included 41 convictions from 12 court appearances between 1998 and 2006. These involved ‘relatively low level offending’, including drug possession and use, dishonesty, street offences, breaches of probation and bail, and one ‘low level’ assault.[26]
[25]Ibid [51].
[26]Ibid [52]–[53].
The judge noted that Dux had made more fruitful use of his time in custody than Talbot. He had undertaken a number of courses and was working in prison industries. Analysis of his urine showed he was drug free.[27]
[27]Ibid [54].
At the plea, Dux’s counsel submitted that he had made plans for the future, which included obtaining work either as a courier, a chef, or pursuing work in the harness racing industry. He also indicated that he had plans with Ms Nunez and her children. The judge expressed ‘some reservations’, however, about the genuineness of these plans. In particular, Ms Nunez was not in court and had not provided a testimonial.
During his period on bail, Dux had lived with his father in Queensland. He later breached his bail conditions and, as a result of his father bringing the breach to the attention of the police, his bail was revoked.[28] Dux was said to be ‘deeply resentful’ that this had occurred. Her Honour found that this continued resentment ‘indicates that you may still have some way to go in accepting responsibility for your conduct’.[29]
[28]Ibid [47]
[29]Ibid [57].
Her Honour also described the delay of two years between arrest and trial as ‘too long’ and acknowledged that Dux had had these matters hanging over his head unresolved for that time.[30]
[30]Ibid [58].
In assessing the gravity of the offending, her Honour characterised it as a ‘bad example’ of both the offence of aggravated burglary and recklessly causing serious injury.[31] She described the assault in the victim’s room as ‘sustained and vicious’ and said that the protracted violence inflicted on the victim after the appellants had already withdrawn money from his account ‘throws some light, on my view, on to your purpose and the means to which you were prepared to go to achieve your ends’.[32]
[31]Ibid [103], [104].
[32]Ibid [105].
Her Honour said that:
These factors, combined with your mature age, the fact that the assault started in the victim’s home, and continued in a place where you had him in control and away from the means of possible assistance, and that it was in company all combine to put this in the more serious range of cases of recklessly cause serious injury.[33]
[33]Ibid [106].
She referred to the importance of the totality principle, given the number and nature of the offences, and concluded that:
I consider there should be substantial, but not total, cumulation between the charges of aggravated burglary, recklessly cause serious injury and kidnap. I accept the Crown submission that there should be total cumulation in respect of the theft sentence and, although related only in time to the other offences, that there should be partial cumulation of the handling sentence with the other charges.[34]
[34]Ibid [108].
As this Court has frequently observed, the complaint that her Honour gave insufficient weight to Dux’s guilty plea is simply a particular of the complaint of manifest excess.[35] In order to succeed on that ground, Dux was required to demonstrate that the individual sentences and total effective sentence fell outside the range of sentences which could reasonably have been imposed, having regard to the circumstances of the offender and the offending.
[35]R v Burke (2009) 21 VR 471, 477 [31]; Scerriv The Queen (2010) 206 A Crim R 1, 5–6 [22]–[24]; Lunt v The Queen [2011] VSCA 56, [15]–[16]; Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82, [67].
The offences committed by Dux, in the company of his co-offender, Talbot, were very serious. The offending was prolonged and each stage – aggravated burglary, recklessly causing serious injury, and kidnapped – involved its own separate and serious criminality. The offenders were not content with breaking into the victim’s room to steal from him. They forced him into a car, drove him away, beat him to the point where he suffered very serious injuries, including a brain injury, and plundered his meagre bank account. The offending only stopped when the victim escaped from the car.
The appellant’s plea of guilty was discussed in the context of ground 4. Her Honour said that:
The accused were clearly in a difficult position. The pleas that had just been presented had been put on the basis that both of you had recently had a change of attitude and were now genuinely remorseful for what you had done, that you were prepared to acknowledge you wrongdoing and wanted to put it behind you so you could start afresh. Hence reliance had been put on the weight to be given to the pleas, saying it should be greater than the weight usually given to late pleas because it should be seen, by reason of those matters, as genuine expressions of remorse, not simply a realistic assessment of the strength of the Crown case against you.[36]
[36]Reasons, [67].
Although her Honour did not specifically say that she had taken account of the utilitarian benefit of Dux’s guilty plea or his remorse, she did so implicitly in the above passage. In our opinion, grounds 1 and 2 are not made out.
So far as totality is concerned, her Honour said that ‘[t]he totality principle is an important one here having regard to the number and nature of the offences.’[37] In our opinion, the orders for cumulation and the resulting total effective sentence appropriately reflected Dux’s overall criminality. Her Honour had to cumulate a significant proportion of the sentences imposed on charges 2 and 3 on the base sentence, to reflect the sustained nature of the offending and the separate criminality involved in those charges.
[37]Ibid [107].
These grounds of appeal fail.
Appeal against sentence by Talbot
In addition to the ground discussed above, Talbot alleged that:
The learned sentencing judge erred by imposing orders for cumulation between charges 1, 2, 3 and 4 which created an overall sentence that breached the totality principle.
Talbot and Dux were of approximately the same age when they offended. Although Talbot had fewer prior convictions than Dux, he played a more active role in beating the victim while he was in the car. Talbot did not contend that the sentences imposed breached the parity principle.
For the same reasons as we have given in relation to Dux, we would reject the totality ground for Talbot as well.
Both appeals against sentence must be dismissed.
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