Vimahi v The Queen
[2018] ACTCA 18
•29 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Vimahi v The Queen |
Citation: | [2018] ACTCA 18 |
Hearing Date: | 14 February 2018 |
DecisionDate: | 29 May 2018 |
Before: | Murrell CJ, Elkaim and Wigney JJ |
Decision: | The appeal is dismissed |
Catchwords: | APPEAL – CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether sentencing judge erred with respect to concurrency and accumulation – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) s 21 Crimes (Sentencing) Act 2005 (ACT) s 33 Firearms Act 1996 (ACT) ss 42, 180 and 249 |
Cases Cited: | CX v The Queen [2017] ACTCA 37 Dalton v The Queen [2015] ACTCA 48 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | Lihai Vimahi (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr P Bevan (Appellant) Mr J White SC (Respondent) |
| Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 26 of 2017 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Walmsley AJ Date of Decision: 7 June 2017 Case Title: R v Vimahi; R v Grech (No 2) Citation: [2017] ACTSC 176 |
THE COURT:
The appeal:
This is an appeal by Mr Lihai Vimahi (the appellant) against sentences imposed by Walmsley AJ (the sentencing judge) on 7 June 2017.
The sentencing judge imposed the following sentences in respect of offences committed by the appellant:
(a)“Wounding” contrary to s 21 of the Crimes Act 1900 (ACT) (Crimes Act): three years’ imprisonment from 1 August 2015 to 31 July 2018 (maximum penalty of five years’ imprisonment) (the wounding offence).
(b)“Unauthorised possession of a prohibited firearm” contrary to s 42 of the Firearms Act 1996 (ACT) (Firearms Act): four years’ imprisonment from 1 August 2017 to 31 July 2021 (maximum penalty of 10 years’ imprisonment) (the possession offence).
(c)“Failure to comply with storage requirements” contrary to s 180 of the Firearms Act: three months’ imprisonment from 1 July 2021 to 30 September 2021 (maximum penalty of two years’ imprisonment) (the failure to safely store offence).
(d)Two counts of “unauthorised possession of ammunition” contrary to s 249 of the Firearms Act: $500 fine for each count (total fine of $1,000) and no time to pay (maximum 10 penalty units) (the possession of ammunition offences).
The total sentence imposed by the sentencing judge was six years and two months’ imprisonment from 1 August 2015 to 30 September 2021. The sentencing judge set a non-parole period of three years and one month from 1 August 2015 to 1 September 2018.
Pursuant to a Notice of Appeal dated 27 June 2017, the appellant appealed the sentences on the possession offence and the failure to safely store offence. The appellant’s grounds of appeal were as follows:
(a) The sentence for the possession offence was manifestly excessive (ground one);
(b) The sentencing judge erred in the determination of concurrency and accumulation for the sentence on the possession offence (ground two); and
(c) The sentencing judge erred in making the sentence for the failure to safely store offence 2 months cumulative with the sentence imposed for the possession offence (ground three).
The appellant sought orders that his appeal be allowed and that he be resentenced.
Factual background
In about 2014, the appellant obtained a sawn-off 12-gauge single shot Winchester shotgun and a number of cartridges that he kept in his home and for which he did not hold a licence.
On 12 March 2015, the appellant’s co-accused, Mr Grech, formed the view that Mr Cranfield, a member of a rival motorcycle gang, had done something disrespectful to the appellant’s uncle. The two planned to harm Mr Cranfield. On that same evening, the appellant and Mr Grech were driven by a colleague to Mr Cranfield’s home, where he was sitting outside at the rear of the house. The two men discharged their firearms at Mr Cranfield, as a result of which he was wounded.
On 24 April 2015, police searched the home of Ms Kirsty Campbell, with whom the appellant was residing at the time. Police located a sawn-off shotgun wrapped in a swag in the garage, along with a number of shot gun rounds.
The appellant was arrested on 6 August 2015 at Ms Campbell’s home and was remanded in custody. He was initially charged with intentionally inflicting grievous bodily harm. On 23 October 2015, the appellant was committed to the Supreme Court for trial.
Together with Mr Grech, the appellant was tried before the sentencing judge on the charge of intentionally causing grievous bodily harm. On 20 April 2017, the appellant and Mr Grech were found not guilty of the charge of causing grievous bodily harm, but guilty of the wounding offence.
On 13 April 2017, during the course of his trial, the appellant pleaded guilty to the possession offence. That offence was listed for trial on 17 April 2017, but the trial was vacated and re-listed for a sentencing hearing on 7 June 2017, as a result of the guilty plea.
At the sentencing hearing on 7 June 2017, the appellant confirmed that he also wished to plead guilty to the failure to safely store offence and the possession of ammunition offences. The pleas of guilty for those offences were treated as having been made on 13 April 2017. As already noted, the sentencing judge sentenced the appellant to a total head sentence of six years and two months’ imprisonment, with a non-parole period of three years and one month, and a total of $1,000 in fines.
The appellant filed his Notice of Appeal on 27 June 2017.
The sentencing judge’s remarks on sentence
As this appeal concerns only the possession offence and the failure to store safely offence, it is unnecessary to rehearse the sentencing judge’s remarks concerning the wounding and possession of ammunition offences. It is also unnecessary to refer to his Honour’s sentencing remarks concerning Mr Grech, as no point was taken by the appellant in relation to parity.
In relation to the possession offence and the failure to safely store offence (collectively, the firearms offences), the sentencing judge found that each were “objectively significant examples” of such offences. The sentencing judge observed that the unauthorised firearm was obtained by the appellant for the purposes of his association with a motorcycle gang and, further, that it had been in his possession for some time, there being evidence at trial that he was seen with the sawn-off shotgun in 2014. The sentencing judge considered that the offences were “committed in a wrongful attempt at vigilantism”.
When dealing with the appellant’s subjective circumstances, the sentencing judge referred to the following matters:
(a) The appellant was 24 years old and spent most of his childhood between New Zealand and Tonga. He was expelled from school in his final year for misconduct. He began drinking alcohol at the age of 12, later using cocaine, ecstasy and cannabis. He came to Australia after taking a tourism course and worked in the building industry.
(b) The appellant was depressed upon admission to prison and was prescribed antidepressant medication. In the prison system, the appellant made several attempts to participate in the SMART Recovery Program, which he ultimately finished after some misconduct at the outset, and had been working as a cleaner. He had not behaved well in prison.
(c) The appellant’s Pre-Sentence Report suggested that he did not accept responsibility for the offences and lacked empathy for the victim, Mr Cranfield. The report also indicated that the appellant was at a medium risk of reoffending. The sentencing judge found that the appellant’s attitude to the victim and his failure to take responsibility suggested that his prospects of rehabilitation were limited.
(d) At the time of his offending, the appellant had no criminal record.
(e) The appellant pleaded guilty to the firearms offences, albeit quite late in the proceedings. The sentencing judge deducted 10 percent from what he otherwise would have sentenced the appellant for those offences.
The sentencing judge accepted the appellant’s submissions that a non-parole period of between 50 to 70 percent of the head sentence should be imposed.
Consideration
Ground one – the sentence for the possession offence was manifestly excessive
The sentence imposed in respect of the possession offence was the only sentence which the appellant alleged was manifestly excessive. He contended that his subjective factors entitled him to some leniency which was not demonstrated by the sentence imposed, which was 40 percent of the maximum penalty. He also contended that the sentence imposed was demonstrably excessive having regard to sentences imposed on other offenders in the Territory who had been convicted of the same offence.
The applicable principles in relation to this ground are well known. They were summarised in the following terms in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
In his written submissions, the appellant contended that the sentence imposed in R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013) (‘Hughes’) represented a “yard stick” or a “benchmark”, on the basis that “it was, at the time, the highest penalty imposed in the Territory for the offence”.
At the hearing, the appellant also relied on a decision of Penfold J in R v Pattman; R v Pattman [2017] ACTSC 331 (‘Pattman’). In Pattman, Penfold J referred to a number of cases, including Hughes, in which the offenders had also been sentenced for possessing a prohibited firearm contrary to the Firearms Act (R v Hill (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) (‘Hill’); R v Okwechime [2015] ACTSC 129; R v Thompson [2017] ACTSC 141). The appellant submitted, in effect, that the four cases referred to in Pattman established a range of available sentences for this offence, outside of which the Court would fall into error. In the appellant’s submission, the sentence imposed on him in relation to the possession offence was inconsistent with the sentences imposed in Hughes and the other cases referred to in Pattman.
That submission has no merit and is rejected. The fact that other judges have imposed lower sentences in respect of the same offence in different circumstances does not necessarily demonstrate that the sentence imposed by the sentencing judge in this matter was manifestly excessive. The sentences imposed in those cases turned on their own facts, including not only the different facts and circumstances surrounding the offence, but also the subjective circumstances of the particular offenders. By way of example, the relevant firearm in Hill was a “key ring” firearm which, for that and other reasons, may explain the comparatively lower sentence imposed.
In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (‘Hili’), the High Court said (at [77]):
Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for “error” merely because of those differences. (footnotes omitted)
Sentences imposed in other cases may also not establish any relevant range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion (Hili at [54] – [55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59] (per Gaudron, Gummow and Hayne JJ); R v Pham [2015] HCA 39; 256 CLR 550 at [26] – [27] (per French CJ, Keane and Nettle JJ)). Much will depend on the number of cases referred to and whether they are truly comparable. As Hoeben CJ at CL (Schmidt J and Barr AJ agreeing) said in Frahm v The Queen [2014] NSWCCA 10 in relation to submissions of that sort (at [19]):
As a matter of principle, submissions based on a small selection of cases [that] produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends on its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive.
The few, and somewhat disparate, cases relied on by the appellant do not establish any reliable sentencing trend or range.
Even where the cases referred to may be said to be sufficiently similar, or where the selection of cases is large enough to establish a sentencing trend, the Court is not restricted to considering that trend to the exclusion of all other matters. Imposing a sentence involves weighing all of the relevant considerations, including the non-exhaustive list set out in s 33 of the Crimes (Sentencing Act) 2005 (ACT).
In the present case, the sentencing judge weighed those matters he considered to be relevant, including the maximum penalty, the objective seriousness of the offence and the appellant’s subjective circumstances. While in his written submissions the appellant contended that his “subjective factors” entitled him to leniency, he did not contend that his Honour failed to have regard to those subjective factors, nor did he otherwise explain how they compelled a finding that the sentence imposed was manifestly excessive.
A four year head sentence for the possession offence may have been stern, or even harsh. It was not, however, manifestly excessive in all the circumstances.
The appellant also contended that the sentence imposed on him in respect of the possession offence was manifestly excessive having regard to the way the sentencing judge accumulated the sentences. That argument was the subject of ground two.
Ground two – accumulation in respect of the wounding and possession offences
The sentencing judge structured the sentences imposed in respect of the wounding and possession offences such that they were to be served concurrently to the extent of 12 months: the sentence for the possession offence commenced 12 months before the expiry of the sentence imposed in respect of the wounding offence.
The appellant submitted that the sentencing judge erred in structuring the sentences in that way, because they were not separate or discrete offences. The error was said to be that his Honour considered the possession offence as separate and distinct and not part of a single or related episode of criminality. The implicit suggestion was that the degree of concurrency should have been greater than that allowed by the sentencing judge. As noted earlier, the appellant also contended that this meant that the sentence imposed for the possession offence was manifestly excessive.
The appellant relied on a passage of a judgment of the Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 (at [26]):
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v R (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v R (2007) 169 A Crim R 41 at [27].
There are at least two difficulties with the appellant’s contentions in support of ground two. The first difficulty is that the sentencing judge did not, as the appellant submitted, treat the wounding and possession offences as entirely separate and distinct. It is clear that his Honour approached the offences on the basis that there were some common or overlapping factual features or elements. His Honour considered, for example, that the firearms offences were “objectively significant examples” of such offences, because the firearm was possessed for purposes to do with “the company they [the appellant and Mr Grech] kept, namely a motorcycle gang with dangerous rivals”.
The second difficulty is that the appellant failed to demonstrate that the common factual features necessarily compelled a greater degree of concurrency. The wounding and possession offences were not as closely related as the appellant would have it. The wounding offence was committed on 12 March 2015. The possession offence, on the other hand, was committed over a number of months, given the sentencing judge’s finding that the appellant obtained possession of the relevant firearm in 2014.
Questions of concurrency and accumulation are discretionary matters for the sentencing judge (CX v The Queen [2017] ACTCA 37 at [28]). The structure of the sentences imposed by the sentencing judge in respect of the wounding and possession offences was open to his Honour. No error has been demonstrated.
For completeness it should be added that the manner in which the sentencing judge accumulated the wounding and possession offences also did not, as the appellant contended, give rise to a manifestly excessive sentence in respect of the possession offences.
Ground three – accumulation in respect of the possession and failure to safely store offences
The same can be said concerning the appellant’s ground three, which concerned the sentencing judge structuring of the possession and failure to safely store offences, such that the offences were to be served concurrently to the extent of only one month: the three month sentence imposed in respect of the failure to safely store offence commenced one month before the expiry of the sentence imposed in respect of the possession offence.
The appellant contended that the sentences for the possession and failure to safely store offences should have been totally concurrent or at least “mostly” concurrent, because they were not separate and distinct offences, but were part of a single episode of criminality. He submitted that the degree of concurrency allowed was no more than a “token recognition of concurrency”.
The appellant’s arguments in respect of this ground suffer from the same difficulties as the arguments advanced in respect of ground two. First, there is nothing to suggest that the sentencing judge sentenced on the basis that the possession and failure to safely store offences were entirely separate and distinct. Second, the appellant failed to demonstrate that the common factual features necessarily compelled a greater degree of concurrency.
The factual features or elements of the two offences did not completely overlap. A prohibited firearm can be possessed, but stored in a secure and safe way. It is one thing to place a prohibited firearm in a safe and safely store it and another thing altogether to leave it wrapped in a swag in the garage. The sentencing judge did not err in making the two offences concurrent only to the extent of one month.
Conclusion and disposition
The appellant failed to demonstrate any error on the part of the sentencing judge. The appeal is dismissed.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Elkaim and Justice Wigney. Associate: Date: 29 May 2018 |
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