Tannous v The Queen
[2017] VSCA 91
•2 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0145
| TANNOUS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February, 28 March 2017 |
| DATE OF JUDGMENT: | 2 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 91 |
| JUDGMENT APPEALED FROM: | DPP v Tannous (Unreported, County Court of Victoria, 14 June 2016, Judge Pilgrim) |
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CRIMINAL LAW – SENTENCING – Appeal against sentence of seven years and six months’ imprisonment – Applicant pleaded guilty to numerous charges including multiple arson offences and assaulting emergency worker – Applicant had consumed methylamphetamine in days before offending – Applicant had an acquired brain injury and mental health issues – Need for judge to explain ways mental impairment taken into account when sentencing – Crown conceded principle of parsimony required shortest custodial term – Sentence manifestly excessive – Applicant resentenced to term of imprisonment combined with lengthy Community Correction Order – R v Verdins (2007) 16 VR 269, Boulton v The Queen (2014) 46 VR 308, R v Koumis (2008) 18 VR 434, R v Pato [2011] VSCA 223.
CRIMINAL LAW – SENTENCING – Offence of arson – Community Correction Order regime for arson offences permits lengthy imprisonment combined with CCO – Applicant resentenced to four years’ imprisonment and four year Community Correction Order – Primary objective of Community Correction Order should be rehabilitative – Interaction between Community Correction Order and parole – Sentencing Act 1991 ss 11, 44.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr RF Edney with Mr R Slattery | Turnbull Lawyers |
| For the Respondent | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
FERGUSON JA:
Introduction
On 17 May 2016, the applicant pleaded guilty to five charges of arson, one charge of attempted armed robbery, one charge of assaulting an emergency worker, one charge of affray, one charge of attempted arson and one summary charge of driving whilst suspended. As will be seen from what follows, the charges relate to events that took place on 30 August 2015. On that evening, the applicant (who has an acquired brain injury and psychological health issues) was agitated, drug affected and sleep deprived. Whilst in this state, he drove his stepmother’s Mercedes Benz car to Meadow Heights, crashed and set the car alight. The applicant then committed further arson offences, brandished an axe and assaulted a fireman who had initially attended (with other fire officers) to extinguish the burning Mercedes. The applicant was sentenced on 14 June 2016 as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 3y Base sentence 2. Attempted armed robbery [Crimes Act 1958 (Vic) ss 321M and 75A] 20y 2y 1y 3. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 1y – 4. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 3y 1y 5. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 3y 1y 6. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 1y – 7. Assaulting an emergency worker in the due execution of duty [Crimes Act 1958 (Vic) ss 31(1)(b)] 5y 18m 18m 8. Affray contrary to common law 5y 1y – 9. Attempted arson [Crimes Act 1958 (Vic) ss 197(1) and (6), 321M] 5y 1y –
Summary Charge 22
Driving whilst authorisation suspended (subsequent offence) [Road Safety Act 1986 (Vic) s 30(1)] 2y 1m – Total Effective Sentence: 7y 6m Non-Parole Period: 5y Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: 3 days S6AAA Statement: 10 years’ imprisonment with a non-parole period of 8 years. Serious arson offender: Pursuant to s 6F of the Sentencing Act 1991 (Vic), the applicant is sentenced as a serious arson offender in respect of charges 3, 4, 5, 6 and 9. Other relevant orders: Forfeiture and disposal orders.
The applicant sought leave to appeal in respect of the sentence imposed. One of the proposed grounds was that the sentencing judge failed to apply the principles in R v Verdins.[1] The Crown (correctly in our view) conceded that this ground was made out.
[1](2007) 16 VR 269 (‘Verdins’).
On 28 March 2017, we granted leave to appeal, allowed the appeal and re-sentenced the applicant to a term of four years’ imprisonment combined with a Community Correction Order (‘CCO’) of four years with onerous conditions, to commence on the completion of the term of imprisonment. We said that we would publish our reasons at a later date. These are those reasons.
The offending[2]
[2]The narration is based on the summary of the prosecution opening dated 17 May 2016 which was tendered on the plea.
It is necessary to consider the circumstances in which the offences were committed in more detail. As noted above, the applicant committed the offences on 30 August 2015. At the time, he was aged 25. He is now aged 27. At the time of the offences, the applicant was on parole.[3] He was also on bail having been charged on 26 August 2015 for offences including unlawful assault and possession of a dangerous article (an axe) allegedly committed in South Morang a week earlier on 24 August 2015.
[3]Having been released on 17 October 2014. He had been sentenced for intentionally causing serious injury and assault.
At approximately 10.20pm on 30 August 2015, the applicant drove his stepmother’s Mercedes Benz car to Papworth Place, Meadow Heights intending to talk to Ms Hannah Hakem, who lived there and with whom he had an earlier relationship. He was in a highly agitated state (due to the potential for his parole to be revoked), affected by drugs and sleep deprived. His driver’s licence had been suspended on 3 August 2015 due to the accumulation of demerit points (Summary Charge 22 — driving whilst suspended).
As the applicant drove along Papworth Place, his driving became erratic. He drove the car onto a grassed area next to the road, lost control of the vehicle and collided with a horizontal steel barrier. The car was wedged under the barrier at the base of the windscreen and the barrier was bent upwards due to the impact of the collision. The applicant got out of the car carrying an axe. He used some flammable liquid and a cigarette lighter to set the car alight. The car was engulfed in flames causing extensive damage to the exterior and interior of the car (Charge 1 — arson).
The applicant then picked up the axe and walked 150 metres to the driveway entrance to a block of townhouses where Ms Hakem lived. At this time, Mr Mehmet Karaoglan and Ms Deniz Erkul drove up to the driveway in their car and stopped. They were coming to visit friends who lived in one of the townhouses. The applicant stood in front of their car, facing them and swinging the axe forwards and backwards over his shoulder. The applicant yelled at them to get out of the car and walked to the driver’s side window. Mr Karaoglan wound down the window and the applicant then said, ‘Sorry mate, I thought you were the jacks. You’re alright to go through.’ Mr Karaoglan and Mr Erkul went up the driveway and into their friend’s house.
Shortly after Mr Karaoglan heard a loud bang coming from the front door of the house he was visiting. Mr Karaoglan opened the front door and the applicant was standing there with the axe. The applicant asked if they were calling the police, to which Mr Karaoglan replied that they were not. The applicant then said ‘Give me $400.’ Mr Karaoglan said he had no cash. The applicant then replied, ‘Give me $200 then.’ Mr Karaoglan again said he had no cash. The applicant said ‘Alright then, you’ve got your car out here’ and walked over to Mr Karaoglan’s car. Mr Karaoglan asked him not to do anything to his car and then the applicant walked away. (Charge 2 — attempted armed robbery).
The applicant then walked towards Ms Hakem’s house and stopped at the house next door. A Toyota Hilux utility vehicle was parked outside. He used a cigarette lighter to set fire to the contents of the tray of the vehicle, causing minor damage. (Charge 3 — arson).
The applicant then walked over to a Holden commodore sedan belonging to Ms Hakem’s sister, Jasmine. Jasmine and her three month old son were inside Ms Hakem’s house. Jasmine heard noises coming from outside and the applicant saying ‘Unless you want to get hurt, stay out of my way.’ The applicant hit the windscreen of the car with the axe and poured flammable liquid over the car and set it alight (Charge 4 — arson). The fire caused significant damage to this car, which was not insured. The applicant walked down the driveway holding a petrol can and the axe.
The applicant then walked up to a different townhouse on Papworth Place, placed some flammable liquid on a front wooden window frame and set it alight. This house was furnished, but unoccupied at the time. The fire engulfed the front window and frame, causing extensive damage to the building, furniture and electrical equipment. The principal effects of the fire were limited to the front area of the room with negligible direct effects more than two metres from the window area (Charge 5 — arson).
Around this time, a group of seven firefighters arrived at the block of townhouses in two fire trucks. They had been called to extinguish the burning Mercedes vehicle up the street. Having dealt with that fire, they responded to fires in the vicinity of the townhouses. As they were doing so, the firemen observed the applicant silently and rapidly approaching them holding the axe and petrol can with a menacing look on his face. Fearing for their safety, the firefighters dropped their hoses and retreated behind the nearby fire trucks.
The applicant walked over to a fire truck, poured petrol on the driver’s side steps and panel. He tried to ignite the fuel by setting fire to a long piece of paper, but was unable to do so. The applicant opened the driver’s side door and climbed up the steps. The applicant poured petrol inside the cabin and used the paper to light the fuel. The cabin immediately caught fire causing minor damage (Charge 6 — arson).
The applicant then got down from the truck and walked back up the driveway. As he did this, one of the firefighters (Matthew Kent) began extinguishing flames inside the fire truck. Upon seeing this, the applicant returned to the fire truck in an agitated state while brandishing the axe. Mr Kent sprayed the applicant directly in the body and face with a fire hose in an attempt to impede him. This had no effect on the applicant, other than to make him more agitated and he continued to approach Mr Kent in a threatening manner. Mr Kent dropped the hose and ran across the street with the applicant following him. As he was running, Mr Kent looked back over his shoulder and then ran into a tree, allowing the applicant to catch up to him. The applicant swung the axe connecting to Mr Kent’s ankle, hooking his left leg up and causing him to stumble. Mr Kent did not fall over and ran behind one of the fire trucks (Charge 7 — assaulting an emergency worker).
The applicant then menaced a number of other firefighters while brandishing the axe. One firefighter climbed through the cabin of one of the fire trucks to escape the applicant. Another felt vulnerable as he could not run with all his work attire on. A third firefighter received injuries to his hip and ankle as he had tripped when running away from the applicant. The applicant also chased a fourth firefighter in the process. The firemen were all emotionally traumatised by the incident, with some stating that they feared for their lives as a result of the applicant’s conduct (Charge 8 — affray).
The applicant then approached the driver’s side of another fire truck, poured petrol along the side of the truck and the steps to the front cabin. He used his lighter to light a long piece of paper, which he then threw onto the truck in an attempt to set fire to the truck. This truck did not catch alight and there was no damage caused (Charge 9 — attempted arson).
The applicant then walked away from the fire trucks and disappeared from the firefighters’ view at the end of Papworth Place, which is a court and leads to a nearby reserve. By this time, police had arrived and a thermal imaging device was used to locate the applicant. He was hiding behind a fence at the end of the court. A police dog was employed to arrest the applicant and a violent struggle ensued resulting in injuries to the applicant. The applicant was taken to hospital and remained there for two nights.
On 1 September 2015, the applicant was transported from hospital to the police station for an interview. He admitted taking his stepmother’s Mercedes and setting fire to it, arming himself with an axe and walking down Papworth Place towards Ms Hakem’s house but he could not recall what happened after that. He said he had taken ‘heaps of ice’ and had not slept for six days. As the interview progressed, the police became concerned about the applicant’s mental and emotional state. The interview did not proceed and the applicant was remanded in custody.
The applicant pleaded guilty at the earliest opportunity at a committal case conference hearing on 9 November 2015. As at August 2015, the applicant had prior convictions for offences including intentionally causing serious injury, common assault and a number of driving offences.
The applicant’s background, the medical evidence and the judge’s reasons for sentence[4]
[4]DPP v Tannous (Unreported, County Court of Victoria, Pilgrim J, 14 June 2016) (‘Reasons’).
The judge described the applicant’s background and personal circumstances. The applicant grew up in Brunswick. He is one of 10 children. After his parents divorced when he was aged seven, the applicant lived with his father and stepmother (who was psychiatrically unwell). The applicant left school at the age of 16 after completing year 11. He initially worked at McDonald’s and then moved to the family business of re-stumping older buildings. The applicant was a hardworking young man and by the time he was 18, had purchased a home. When he was 19, the applicant attended a reception. Gate crashers assaulted him. As a result, the applicant suffered an acquired brain injury after being hit over the head with a sledge hammer. This injury affected the applicant’s ability to work. He could no longer play football which he had enjoyed doing in the past.
The applicant began offending in about 2007. First, he was charged with recklessly causing injury for which he received a good behaviour bond in the Children’s Court. The applicant went on to commit other offences including intentionally causing serious injury, assault related matters, minor traffic offences and numerous traffic infringement notices (which resulted in the applicant losing his driver’s licence). The applicant was imprisoned in relation to some of these offences. He was paroled and breached that parole. As a result, he served further time before being paroled a second time. The applicant then operated a home handyman business working approximately 15 hours a week. At this time, he formed an association with Ms Hakem.
The judge noted that the offences in respect of which the applicant was to be sentenced took place whilst he was attempting to visit Ms Hakem’s residence. The judge described the applicant’s conduct when he committed the offences as monstrous and as a very serious matter with serious damage occurring. The judge said that the assault on the fire fighter was atrocious and totally obnoxious. The judge noted that at the time of the offences, the applicant was not only on parole but had been released on bail in respect of the alleged offences on 24 August 2015.
The judge referred to two medical reports. Dr Leon Turnbull, a consultant psychiatrist, prepared a report dated 25 November 2015. In his opinion, having an acquired brain injury, Post Traumatic Stress Disorder symptoms and drug induced psychosis at the time of offending the applicant’s ability to make calm and rational decisions would have been lessened. Dr Turnbull stated in his report that the applicant should participate in drug programs and that if he returned to drug use, his future behaviour was largely unpredictable. In Dr Turnbull’s opinion, the applicant would benefit from consultations with an experienced psychiatrist or psychologist who could see him long-term. Dr Turnbull noted that these types of services are limited in prison. In Dr Turnbull’s opinion, the applicant’s mental illnesses and acquired brain injury would make incarceration more onerous due to the distress of being relatively isolated without psychological support.
Associate Professor Warrick Brewer, a consultant clinical neuropsychologist, provided a report dated 10 May 2016. Among other things, Associate Professor Brewer assessed the applicant as having impaired mental functioning from his acquired brain injury; as being of overall borderline intellect; having an untreated drug induced psychosis; being depressed and suffering ongoing symptoms of post-traumatic stress disorder associated with early childhood trauma and assaults sustained during adolescence. Associate Professor Brewer described the applicant’s methylamphetamine addiction and its effects. He noted that the applicant’s addiction was in remission at the time of his report. He stated:
There is… sufficient evidence to suggest that at the time of the commission of his offences, Mr Tannous had impaired mental functioning from his ABI to such an extent that it is causally linked, though in part only, to the commission of the offences. Here, by virtue of his ABI alone rather than his Ice use or associated psychosis, Mr Tannous is not so sufficiently impaired that he is unable to appreciate the wrongfulness of his actions. Rather, it is his ability to consider in a thoughtful and reasoned manner any impact of his behaviour which appears on balance to be compromised here, coupled with a long-held personality vulnerability that includes both disorganised and delayed features stemming from early adolescence. More certainly, his methylamphetamine use and consequent psychosis are key contributors to Mr Tannous’ offending, both in and of themselves, and also as compounding agents of the impact of his underlying ABI…. In this clinician’s opinion, Mr Tannous’ clinical history and current cognitive and emotional presentation and the underlying organic and functional compromise detailed above presents sufficient explanatory weight to warrant a consideration of mitigation of Mr Tannous’ responsibility to a mild-moderate extent for facing the consequences of his actions.
On balance of probabilities, this clinician also accepts that the compounding impact of Mr Tannous’ early ABI upon his early and subsequent emotional compromise during childhood-adolescence, and his methylapmphetamine use and associated psychosis on his function at the time the offences were committed reflect a moderate-severe compromising impact on his ability to reason, think, make proper judgement, and to engage in consequential thinking. He was clearly, from all reports, under the influence of a substance, likely Ice from the available history, and floridly psychotic as a result.
Associate Professor Brewer concluded that the applicant requires medication review to manage his psychosis, anxiety and depression and would benefit from longer term therapy. Without therapy, Associate Professor Brewer is of the opinion that the applicant poses a moderate risk of re-offending.
The judge acknowledged that he must take into account that it was not the applicant’s fault that he had an acquired brain injury. He quoted Associate Professor Brewer’s opinion that the applicant’s circumstances ‘presents sufficient explanatory weight to warrant a consideration of mitigation of Mr Tannous’ responsibility to a mild-moderate extent for facing the consequences of his actions.’ In sentencing the applicant in respect of each count of arson (other than that which affected his step-mother’s Mercedes Benz) the judge stated:
Taking into account… the mental deficits which are no fault of this man for having been struck on the head with a sledgehammer, I do not propose to impose a disproportionate sentence. I may have otherwise.[5]
[5]Reasons [84].
The judge referred to the victim impact statements and the dramatic effect that the applicant’s violent actions had had on some of the victims with at least one of them fearing for his life and the life of the other firefighters.[6]
[6]Reasons [65]–[69].
The judge took into account the applicant’s remorse and guilty plea and stated that he was imposing a lesser sentence than he otherwise would have. The judge noted that if the applicant was to rehabilitate himself, he must conquer his drug addiction. The judge noted that the applicant had a number of prior convictions.[7]
[7]Reasons [70].
On the plea, it was recognised by counsel for the applicant that a substantial term of imprisonment was warranted. The sentencing judge raised his concern as to how the applicant could be managed when ultimately released on parole. It is regrettable that, as the Crown noted on the appeal, neither party brought to the judge’s attention the possibility of a sentence combining a term of imprisonment with a CCO.[8] Unlike the position in respect of other offences, the sentence for arson may be for a term of imprisonment of any length combined with a CCO.[9]
[8]See cl 5, Sch 1, Sentencing Act 1991.
[9]Sentencing Act 1991 s 44(1A).
Grounds of appeal
There are four grounds of appeal. They are:
(1)The judge erred by failing to consider the application of the principles outlined in R v Verdins.[10]
(2)The judge erred by making material factual errors.
(3)The judge erred by imposing a sentence which offended the principle of totality.
(4)The total effective sentence and the non-parole period are manifestly excessive.
Application of Verdins[11] (Ground 1)
[10](2007) 16 VR 269 (‘Verdins’).
[11]Ibid.
In Verdins,[12] the Court observed that there were at least six ways that impaired mental functioning is relevant to sentencing. They are:
[12]Ibid 276, [32].
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[13]
[13]Ibid.
The applicant contends that the judge failed to apply these principles. He submits that the judge failed to consider:
(a)his post-traumatic stress disorder;
(b)whether general deterrence and specific deterrence should be sensibly moderated;
(c)whether he should have been afforded a greater reduction in sentence based on his moderate-severe compromised ability to make proper judgment at the time of the offences; and
(d)whether there was a serious risk of imprisonment having a significant adverse effect on his mental health.
The applicant submitted that these were primary issues that the judge should have referred to in his reasons, but he failed to do so. In those circumstances, the applicant submitted that this indicated that the judge had not taken these matters into account.
The Crown conceded (both before the judge and on the appeal) that the Verdins principles were properly engaged in this case albeit with reduced application because the applicant was sleep deprived and had used drugs on the day the offences were committed. The Crown also conceded on the appeal that the judge’s reasons did not reveal a detailed exposition of the various ways that the applicant’s mental health mitigated sentence. The Crown referred to R v Koumis[14] and R v Pato[15] which emphasise the need for adequate reasons for sentence to be given and, in the case of mental impairment, the need for judges to explain the ways in which the mental impairment has been taken into account.[16]
[14](2008) 18 VR 434 (‘Koumis’).
[15][2011] VSCA 223 (‘Pato’).
[16]Koumas (2008) 18 VR 434, 439-440 [62]–[64]; Pato [2011] VSCA 223 [20]–[23].
The Crown (in our view, correctly) conceded that this ground was made out. As Koumis makes clear, the role of sentencing judge is very demanding. While reasons for sentence need not be lengthy, it is necessary that they expose why the judge has imposed the sentence he or she has and, in the case of mental impairment, how that circumstance has affected the sentence to be imposed. In this regard, it is important that the judge’s reasons include more than an overarching statement that the offender’s mental impairment has been taken into account. The reader should not be left to ask how it has been taken into account. Rather, the judge’s reasons should provide the answer to that question.
As this ground is made out, the sentencing discretion is re-opened for exercise by this Court. Although it is not strictly necessary to consider the other grounds, we will briefly mention ground 4 which concerns manifest excess as, in this case, that ground is related to the Verdins ground of appeal and raises matters that are relevant to the re-exercise of the discretion.
Manifest excess (Ground 4)
When considering the ground of manifest excess, the Court’s task is to consider whether the sentence falls within or outside the range of sentence which could have been imposed if proper principles had been applied.[17] That task must be carried out having regard to the particular offender, the offence committed and circumstances of the offending in the case under consideration.[18] The question is, were the sentences imposed on the applicant not reasonably open in the circumstances of this case?[19]
[17]Barbaro v R (2014) 253 CLR 58, 70 [26].
[18]R v Abbott 170 A Crim R 306, 309 [14].
[19]R v Clarkson (2011) 32 VR 361, 384 [89].
The particulars for the applicant’s manifest excess ground are:
(a)the manifest excessiveness of the individual sentences other than for the related summary offence of driving whilst suspended;
(b)the applicability of Verdins, especially in moderating moral culpability and deterrence;
(c)the totality principle should have meant that there was less cumulation;
(d)the insufficient consideration given to the applicant’s rehabilitation; and
(e)the applicant’s personal circumstances and other mitigating factors, in particular, current sentencing practice.
The applicant submitted that he should be resentenced to a different and lesser sentence.
The Crown conceded (in our view quite properly) that in light of the circumstances of the offending, the applicant’s compromised mental state at the time of offending and the available sentencing option of a substantial term of imprisonment together with a lengthy CCO, that a more merciful sentence was called for. There was a need for a structured plan upon release and a different but perhaps not lesser sentence should be imposed. In particular, the Crown emphasised the need to give careful consideration to the kind of sentence to be imposed and the conditions in which it is to be served.[20] The Crown noted that during the plea hearing, the judge appeared to accept that it would be desirable if it were possible that the applicant be subject to a structured regime upon release.
[20]That is, the second consideration described in Verdins (2007) 16 VR 269, 276 [32].
In our view, the sentence imposed was manifestly excessive. It was not open to the judge to impose so harsh a sentence given the circumstances in which the offence was committed, and the health of the applicant both at the time of offending and when the sentence was imposed. The principle of parsimony required that the period of incarceration be the shortest period that would achieve the purposes for which the sentence was to be imposed.
Re-sentence
The maximum penalty prescribed for the offence of arson is 10 years (charges 1, 3, 4, 5 and 6); for assaulting an emergency officer, affray and attempted arson, five years for each offence (charges 7, 8 and 9); for attempted armed robbery, two years (charge 2); and for a subsequent offence of driving whilst authorisation suspended, two years (Summary offence). In respect of charges 3, 4, 5, 6 and 9, the applicant is to be sentenced as a serious arson offender.[21] Consequently, in determining the length of sentence on those charges, the Court must regard the protection of the community from the applicant as the principal purpose for which the sentence is imposed.[22] In addition, unless the Court otherwise directs, the sentences must be served cumulatively.[23]
[21]Ibid s 6F(1).
[22]Ibid s 6D.
[23]Ibid s 6E.
The applicant’s background and the offences have been described above. The applicant pleaded guilty at an early stage and this should be reflected in the sentence imposed to acknowledge the public utility of such a plea.
With the exception of the summary offence, each offence is very serious. In particular, the action which the applicant took against the firefighters was abhorrent and should not be countenanced. They were simply doing their jobs and protecting the community. The adverse impact on them has been enormous and cannot be overstated. Similarly, the other victims were innocent bystanders whose property and lives have been damaged.
As set out above, the applicant has committed previous offences, most of them motor traffic related. The most relevant previous offence is that of intentionally causing serious injury and the related charge of common law assault. The assault happened at the end of a local football game when there was an altercation between the applicant’s brother and an opposition player. The applicant became involved in the fight that ensued and struck a person in the face with a weapon. He pleaded guilty. By the time that these offences were committed, the applicant had sustained his acquired brain injury. He was sentenced in July 2011 for these offences to a total of three years’ imprisonment with a non-parole period of 12 months (‘the July 2011 sentence’). The applicant was released on parole after 12 months. He breached his parole and served a second year of imprisonment before being released on parole a second time on 1 September 2014. About a year later, during this second period of parole, the applicant committed the offences which are the subject of this proceeding. Having breached his parole again, the applicant was required to serve his full prison term in respect of the July 2011 sentence. The applicant submitted that when sentencing him for the offences the subject of this appeal, the Court should take into account the time served by him under the July 2011 sentence. He relied on the principle of totality. That principle requires that the overall sentence reflect a ‘just and appropriate measure of the total criminality involved.’[24]
[24]Postiglione v The Queen(1997) 189 CLR 295, 307–8.
In our view, the totality principle does not require account to be taken of the two years parole that the applicant had served under the July 2011 sentence. This is because there was about a 12 month gap between the serving of those two years of imprisonment and the commission of the arson offences. It would have been a different matter if the gap had been of one day.[25] The third year of the July 2011 sentence (which was served as a result of the breach of parole occasioned by the commission of the arson offences), is taken into account by recognition of the time spent in pre-sentence detention. This satisfies the totality principle.
[25]DPP v Oksuz [2015] VSCA 316 [131]–[134] (Kyrou JA, Redlich JA agreeing).
Turning then to the medical evidence. The reports of Associate Professor Brewer and Dr Turnbull make clear that the applicant’s acquired brain injury and impaired mental health reduced his moral culpability. They also support the conclusion that a term of imprisonment will weigh more heavily on the applicant than on a person who did not have those health issues. Indeed, imprisonment may well have a significant adverse effect on him given those health issues. All of those matters help to inform the type of sentence that should be imposed on the applicant and under what conditions he should serve his sentence. Given his health, both general and specific deterrence should be given less weight than would otherwise be the position.
In our opinion, and taking into account the matters discussed above, it is necessary that a term of imprisonment of some years be served as part of the sentence. This is warranted given the nature of the offending. The length of the term of imprisonment should nevertheless be moderated, as in our opinion, both the community and the applicant will be better served, and the prospects of his rehabilitation are likely to be improved, if he is placed on a lengthy CCO following his release from prison. Most importantly in this case, a CCO offers the possibility of imposing conditions which will ensure he is supervised in the community and which may better assist the applicant to address the health issues that face him, thus reducing the prospects of him re-offending. Viewed in this way, the community is more likely to be better protected by the imposition of a combination sentence involving a CCO.
Whilst it should always be remembered that a CCO is punitive, albeit less punitive than a term of imprisonment,[26] in this case the primary objective of a CCO should be rehabilitative. The more punitive aspects of the sentence will be fulfilled by the term of imprisonment. For this reason, we would not impose a condition requiring the applicant to perform unpaid community work.[27] There will of course be the mandatory conditions specified in s 45(1) of the Sentencing Act. As to other conditions to be imposed, the pre-sentence report[28] recommended three treatment and rehabilitation conditions: (1) assessment and treatment (including testing) for drug abuse; (2) mental health assessment and treatment; and (3) participation in offence-related programs.[29] In addition, the pre-sentence report recommended a supervision order.[30] The pre-sentence report also raised for the Court’s consideration the imposition of a drug abstinence condition[31] and a condition for judicial monitoring, to provide additional oversight of the applicant while he is subject to the CCO.[32] In our opinion, all of these conditions should be imposed. They are all directed to addressing the mental health and drug issues with which the applicant must deal. If he is to be rehabilitated, and thus the community protected, a controlled, well-structured and closely supervised program over a significant period is essential.
[26] Boulton v The Queen (2014) 46 VR 308, 330–331 [89]–[93].
[27]Sentencing Act s 48C.
[28]See Sentencing Act ss 8A, 8B, 48D, 48E, 48JA and 48LA.
[29]Sentencing Act s 48D(3)(a), (e) and (f).
[30]Ibid s 48E.
[31]Ibid s 48(1) — the residual condition power.
[32]Ibid s 48K.
That leaves the question of whether a non-parole period should be set given our view that a term of imprisonment of some years should be imposed. Recent amendments have been made to the Sentencing Act which affect the potential interaction between CCOs and parole.
So far as relevant, s 44 provides:
(1)When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 1 year or less.
(1A)Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence to which clause 5 of Schedule 1 applies, a court may make a community correction order in addition to imposing any sentence of imprisonment….
(3)If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment.
The maximum period of a CCO (in respect of single or multiple offences) is five years[33] and separate CCO’s for each offence cannot be cumulated to take effect in succession for more than five years in total.[34] Arson offences are offences to which clause 5 of Schedule 1 applies.
[33]Sentencing Act s 38(1)(b).
[34]Sentencing Act s 41A.
When CCOs were first introduced, they could only be imposed in addition to a prison term where the total term of imprisonment (after deduction of any period of pre-sentence detention) was three months. Section 44(3) was in the same form as currently appears in the legislation. The Sentencing Amendment (Emergency Workers) Act 2014 amended the Sentencing Act. The three month period was increased from three months to two years[35] and, in the case of arson offences, a CCO could be imposed no matter the length of the term of imprisonment.[36]
[35]Sentencing Act s 44(1) (as amended by Sentencing Amendment (Emergency Workers) Act 2014 s 18(1), (2)). Section 44(1) has recently been amended with effect from 20 March 2017 to reduce the two year period to one year: Sentencing (Community Correction Order) & Other Acts 2016 s 12(1).
[36]Sentencing Act s 44(1A). This section has also recently been amended with effect from 20 March 2017 to make the imposition of a CCO subject to any specific provision relating to the offence: Sentencing (Community Correction Order) & Other Acts 2016 s 12(1).
Section 44(3) was amended to read:
If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986).
That sub-section made clear that a CCO began on release from prison or, if parole was served, then on completion of parole. The amendments brought into focus the potential interaction of prison terms, parole and CCOs.
The Explanatory Memorandum to the Sentencing Amendment (Emergency Workers) Bill which introduced those amendments to s 44 stated:
New section 44(1) provides that when sentencing an offender in respect of one, or more than one, offence (other than an ‘arson offence’), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all terms of imprisonment to be served (after deduction of pre-sentence detention under section 18) is 2 years or less.
Given the operation of section 11 of the Sentencing Act 1991, this means that an offender may receive a sentence of imprisonment in respect of which a non-parole period has been fixed, and then be required to complete a community correction order. Under section 11(1), if a court sentences a person to be imprisoned for a term of 2 years or more, it must fix a non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. If the term of imprisonment is less than 2 years but not less than 12 months, the court may fix a non-parole period. These amendments do not affect the court’s discretion as to whether a non-parole period should be fixed in these circumstances.
The Explanatory Memorandum also addressed when the CCO would begin if parole had been granted:
If the offender is serving a sentence of imprisonment that does not have a non-parole period fixed, then the community correction order commences upon the offender’s release from imprisonment. If the offender is serving a sentence of imprisonment with a non-parole period, the community correction order will commence upon completion of the parole period as defined in section 55(1) of the Corrections Act 1986.
Parole is (and was) dealt with in s 11 of the Sentencing Act. Before its recent amendment, that section read:
(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
(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.
(3)A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.
(4)If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.
In the past, this Court observed that where a sentence of two years was imposed, the effect was that unless one of the two limited exceptions in s 11(1) applied, there was no discretion as to whether a non-parole period was to be imposed. The legislation required it.[37] This gave rise to an anomaly. If a judge chose to impose a CCO with a two year sentence then a non-parole period had to be set unless one of the limited exceptions applied. On the other hand, if a judge chose to impose a sentence of one year and 11 months in combination with a CCO, a non-parole period did not have to be set. In a number of cases, the Court allowed appeals because the sentencing judge imposed a combination CCO/two year sentence without fixing a non-parole period.[38] On more than one occasion, this Court urged the legislature to reconsider the interaction between ss 11 and 44 of the Sentencing Act.[39]
[37]DPP v Grech [2016] VSCA 98 (‘Grech’).
[38]Deng-Mabior v The Queen [2015] VSCA 179 (‘Deng-Mabior’), Baldwin v The Queen [2015] VSCA 299 (‘Baldwin’); Debono v The Queen [2016] VSCA 16 (‘Debono’).
[39]Dordevic v R [2016] VSCA 166 [33]; Deng-Mabior [6], [38]; De Bono [13]; Grech [75]; DPP v Basic [2016] VSCA 99 [35]. The Sentencing Advisory Council also suggested that consideration be given to not requiring a non-parole period to be fixed where a sentence of imprisonment is imposed with a CCO: Parole and Sentencing: Research Report, February 2016, para 3.22.
Sections 11 and 44 were recently amended by the Sentencing (Community Correction Order) & Other Acts 2016. Section 11(2A) was inserted into the Sentencing Act. It reads:
However, a court must not fix under subsection (2) a non-parole period as part of a sentence of imprisonment if the court, in accordance with section 44, makes a community correction order in respect of the offender in addition to imposing the sentence of imprisonment.[40]
[40]Inserted by Sentencing (Community Correction Order) & Other Acts s 6.
Section 44(3) was also amended to return it to its original form by removing reference to the order of serving a prison term, parole and a CCO. As can be seen from the above, the section now provides that a CCO commences ‘on the release of the offender from imprisonment.’
The Explanatory Memorandum for these most recent amendments introduced by the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016 states in respect of the amendments to s 11:
Clause 6 inserts new section 11(2A) into the Sentencing Act 1991 to provide that if the court makes a community correction order combined with an order of imprisonment (in accordance with section 44), it must not fix a non-parole period as part of the sentence under section 11(2). Section 11(2) of the Sentencing Act 1991 provides that when a court imposes a sentence of less than 2 years but not less than one year, the court may fix a non-parole period.
Section 44 of the Sentencing Act 1991 provides that a court may make a community correction order in addition to a sentence of imprisonment, only if the unserved portion of the sentence of imprisonment is 2 years or less. Note that clause 12(1) of the Bill amends section 44(1) of the Sentencing Act 1991 to reduce this period from 2 years or less to one year or less. Clause 6 ensures that where a combined sentence is imposed, an offender cannot be released on parole before commencing the community correction order component of the sentence.
In relation to the amendment to s 44(3), the Explanatory Memorandum states:
Subclause (4) omits from section 44(3) of the Sentencing Act 1991 reference to an offender being released on parole on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986). This consequential amendment is required as a result of clause 6 of the Bill, which ensures that where a combined order is made, an offender cannot be released on parole before commencing the community correction order.
In the second reading speech for the 2016 Bill, the Attorney General noted the legislative history in respect of CCOs. He then said:
The bill will reduce the availability of combined orders by reducing the length of a sentence of imprisonment that may be combined with a community correction order [from 2 years] to one year or less and provide that a court must not fix a non-parole period as part of the sentence. This will ensure that where a combined order is imposed, an offender cannot be released on parole before commencing the community correction order component of their sentence.[41]
[41]Victoria, Parliamentary Debates, Legislative Assembly, 13 October 2016, 3860 (Martin Pakula, Attorney-General).
The Explanatory Memorandum and Second Reading Speech suggest that when the legislation was amended, little (if any) attention was focussed on s 44(1A) which permits the making of a CCO in addition to a term of imprisonment of longer than one year when sentencing for an arson offence.
In our opinion, the recent amendments change the landscape in which s 11(1) is to be interpreted. On one view, the fact that s 11(2A) was introduced and explicitly limits the discretion under s 11(2) (that is, where the sentence imposed is not less than one year but less than two) and is silent in respect of the mandatory requirement (subject to two limited exceptions) to fix a non-parole period under s 11(1) (where the term of imprisonment is two years or more) suggests that the legislature intended to retain as a possibility the operation of a term of imprisonment, parole and a CCO. However, in our opinion the better view is that this was not the intended outcome or, at least, not the intended outcome in every case. Our reasons for this conclusion are based on consideration of the text, context and purpose of both sections informed by the amendments made to the legislation over time. In this regard, it is now only in the case of arson offences that a term of imprisonment of more than one year may be imposed in conjunction with a CCO. Second, the legislature must be taken to have been aware of the decision in Boulton and the Court’s observations as to the ‘significant and practical difficulties’ inherent in combining a non-parole period with a CCO. Third, and against this background, the removal of the reference in s 44(3) to the order of serving a prison term, parole and a CCO strongly suggests that the legislature did not intend as a routine sentencing option a combination of parole and a CCO. Support for this is found in the extrinsic material concerning the 2016 amendments, to which we have referred above. Finally, s 11(1) does provide two exceptions. While those exceptions have in the past been interpreted in a particular and limited way (where the issue was whether the prisoner should be kept in prison for the entirety of a very lengthy term)[42] that does not mean that following the recent amendments to ss 11 and 44 they should continue to be so understood. Although s 11(1) was not amended, it must now be interpreted in light of the other amendments, including the amendment to s 44(3).[43]
[42]R v Lowe[1997] 2 VR 465; Hunter v R (2013) 40 VR 660; Baldwin v The Queen [2015] VSCA 299.
[43]Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ). Given our views, it is not necessary to consider whether words may have been implied into s 11(1) to limit its operation in circumstances where a CCO forms part of the sentence: see DPP v Leys (2012) 296 ALR 96 and the authorities considered in that case.
There is no reason in principle why a sentencing judge, as provided for in
s 11, cannot now take into account the past history of the offender or the fact that the offence is one of arson (that now being the only type of offence where the possibility of parole and a CCO interacting arises) and making a decision that in the circumstances of the particular case it is appropriate to refuse to fix a non-parole period. So it is here. Most of the offences are for arson. The evidence establishes that their commission was (at least in part) causally linked to the applicant’s mental impairment and that the applicant’s drug abuse was a key contributor to his offending. The applicant’s past history shows that he does not do well when released on parole. On more than one occasion, he has breached his parole. The expert evidence suggests that he needs therapeutic support and that a structured regime would be best. Associate Professor Brewer says that ‘contacts with supporting services should be kept to a strict routine time, with minimal changes of therapists.’ The conditions that might be imposed if the applicant was placed on parole are unknown. There can be no certainty that those conditions would include the types of conditions to which we propose the applicant would be made subject in serving the CCO. It is possible that the conditions for release on parole may conflict with the CCO conditions.
Given the current wording of s 44(3) (which requires the CCO to commence on release from imprisonment), it is possible that if a non-parole period were set, the applicant may have to serve his time on parole and on the CCO together. This may lead to practical difficulties, as alluded to in Boulton. In conclusion, in our opinion, in the circumstances of this applicant and the nature of the offences, it would be inappropriate to set a non-parole period under s 11(1) of the Sentencing Act.
For these reasons we granted leave to appeal, allowed the appeal and (the applicant having consented to the terms of the CCO) re-sentenced the applicant as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 2y Base sentence 2.
Attempted armed robbery [Crimes Act 1958 (Vic) ss 321M and 75A] 20y 1y 4m 3. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 1y 2m 4. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 2y 2m 5. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 2y 2m 6. Arson [Crimes Act 1958 (Vic) ss 197(1) and (6)] 10y 1y 2m 7. Assaulting an emergency worker in the due execution of duty [Crimes Act 1958 (Vic) ss 31(1)(b)] 5y 1y 6m 1y 8. Affray contrary to common law 5y 1y – 9. Attempted arson [Crimes Act 1958 (Vic) ss 197(1) and (6), 321M] 5y 1y – Summary Charge 22
Driving whilst authorisation suspended (subsequent offence) [Road Safety Act 1986 (Vic) s 30(1)]
2y
1m
–
Total Effective Sentence: 4 years’ imprisonment and upon release from custody a four year Community Correction Order with conditions. Conditions of the Community Correction Order (in addition to the mandatory conditions which apply to all Community Correction Orders) were:
Supervision by a Community Corrections Officer for the duration of the order (Sentencing Act 1991 s 48E);
Assessment and treatment for drug and alcohol abuse or dependency (Sentencing Act 1991 ss 48D(3)(a) and (b);
Mental health assessment and treatment (Sentencing Act 1991 s48D(3)(e));
Abstaining from consuming drugs or alcohol during the period of the order (Sentencing Act 1991 s48(1)); and
Judicial monitoring (Sentencing Act 1991 s48K).
Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: 290 days S6AAA Statement: 6 years’ imprisonment with a Community Correction Order of 5 years Serious arson offender: Pursuant to s 6F of the Sentencing Act 1991 (Vic), the applicant is sentenced as a serious arson offender in respect of charges 3, 4, 5, 6 and 9.
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