Wright v The King
[2023] VSCA 243
•12 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0061 |
| BRENDAN WRIGHT | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2023 |
| DATE OF JUDGMENT: | 12 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 243 |
| JUDGMENT APPEALED FROM: | [2023] VCC 375 (Judge Rozen) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant guilty of home invasion, common assault, damaging property, theft and related summary offences – Total effective sentence of 2 years 6 months, non-parole period of 1 year 3 months – Whether error in misapplication of Sentencing Act 1991, ss 5(2H), 38, 44 – Whether considerations of double jeopardy and parity require imposition of lesser sentence – Sentence within range open to trial judge – Leave to appeal sentence granted – Decision affirmed.
Sentencing Act 1991, ss 5(2H), 38 and 44 considered.
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| Counsel | ||
| Applicant: | Dr J R Murphy | |
| Respondent: | Mr J Dickie | |
Solicitors | ||
| Applicant: | Stary Norton Halphen | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
WALKER JA
MACAULAY JA:
Introduction
On 23 January 2023, the applicant was convicted by plea of guilty before a judge in the County Court of four indictable offences and two related summary offences. His co‑offender, Ms Brooke Evans, also pleaded guilty to a lesser number of charges. Following a plea on 23 January 2023 and 8 February 2023, the judge proceeded to sentence the applicant and Ms Evans on 1 March 2023. Immediately after he did so, the parties raised an issue about the legality of the sentence that had been pronounced in respect of the applicant, so the judge adjourned the sentencing of both offenders until 17 March 2023.
On 17 March 2023, the applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Home invasion[1]
25 years
30 months
Base
2
Common Assault[2]
5 years
1 year
-
3
Damaging Property[3]
10 years
1 year
-
4
Theft[4]
10 years
1 year
-
Related Summary Offences
9
Commit indictable offence whilst on bail[5]
30 penalty units or 3 months
Fined $150
-
10
Failing to answer bail[6]
240 penalty units or 2 years
Fined $200
-
Total Effective Sentence:
30 months
Non-Parole Period:
15 months
Section 6AAA Statement:
Total Effective Sentence 3 years 4 months
Non-Parole Period 22 months
[1]Contrary to Crimes Act 1958, s 77A.
[2]Contrary to Common Law.
[3]Contrary to Crimes Act 1958, s 197(1).
[4]Contrary to Crimes Act 1958, s 74(1).
[5]Contrary to Bail Act 1977, s 30B.
[6]Contrary to Bail Act 1977, s 30(1).
Ms Evans was sentenced to a two-year community correction order (‘CCO’) on one charge of home invasion and one charge of damaging property, together with fines of $150 and $200 respectively for the summary offences of committing an indictable offence while on bail and failing to answer bail.
At the earlier hearing on 1 March 2023, the sentencing judge had announced that he would impose a sentence on the applicant of 15 months’ imprisonment on charge 1, and an 18-month CCO on charges 2, 3 and 4 to commence upon the applicant’s release from prison. However, counsel for both parties submitted that this sentence would contravene s 44 of the Sentencing Act 1991 (the ‘Act’). After some discussion, and not having entered the sentence into the record of the court, the judge adjourned the sentencing and invited the parties to provide written submissions on the application of s 44 of the Act. With the benefit of written submissions from both parties, on the adjourned date the judge sentenced the applicant and Ms Evans as set out above.[7]
[7]DPP v Wright [2023] VCC 375 (‘Reasons’).
The applicant has applied for leave to appeal his sentence on three proposed grounds:
(a)first, that the sentencing discretion miscarried by reason of the sentencing judge misunderstanding ss 5(2H), 38 and 44 of the Act;
(b)secondly, that the sentencing judge denied the applicant procedural fairness; and
(c)thirdly, that the sentencing discretion miscarried by reason of the sentencing judge misapplying the principle of parity.
In written submissions, the respondent conceded that the judge made a specific error of the kind contended in proposed ground 1. For reasons we will explain, we consider that the concession was properly made, specific error has been established and leave to appeal should be granted. We informed the parties of our view at the commencement of oral submissions and invited them to concentrate their further argument on whether a different sentence should be imposed.[8]
[8]Criminal Procedure Act 2009, s 281(1)(b). See also Johns v R (2020) 92 MVR 160, [77]–[80]; [2020] VSCA 135.
The parties accepted that invitation. In substance, therefore, the essential remaining question to be determined on this appeal is whether, despite established error, this Court is satisfied that a different sentence to the one imposed by the sentencing judge on 17 March 2023 should be imposed. As we explain, we are not so satisfied, and the appeal must be dismissed.
Circumstances of offending
At the time of the offending, the applicant and his co-offender Ms Evans were in a relationship and were unemployed. Both had outstanding arrest warrants.
On 8 January 2022, Ms Evans booked a room at the Beaumont Kew Hotel having checked in at approximately 7:45 pm.
By 8:00 pm, the hotel manager, Ms Jodie Dowker, had received a complaint about noise coming from Ms Evans’s room. Ms Dowker went to address the complaint with Ms Evans and upon arrival at the room witnessed Ms Evans yelling out the window. The applicant was also present in the room at this time. Ms Dowker warned Ms Evans and the applicant that they would face eviction if the noise continued. Ms Evans continued yelling, whereupon Ms Dowker called her supervisor who then called police.
Police officers arrived at the scene just before 9:00 pm and evicted the applicant and Ms Evans. The officers identified that the pair had outstanding arrest warrants and bailed both of them at the scene. The applicant and Ms Evans were not removed entirely from the area when police left sometime after 9:00 pm. Ms Dowker returned to her unit, which doubled as the hotel reception area, where she resided with her partner, Mr Timothy Roles, and adult daughter, Ms Kyra Mansell.
At approximately 10:20 pm, Ms Dowker heard yelling and swearing from outside the unit. The applicant and Ms Evans were banging on the door of the reception, and Ms Evans was demanding to have her room deposit of $50 returned to her. The pair were affected by drugs and alcohol at this time.
Ms Dowker opened the external door of the reception and asked the pair to leave. In response, Ms Evans said:
You’re a fucking dog and I want my deposit back. You don’t deserve this place. I’m going to kill you. I’m going to kill your daughter and everyone in the house.
Ms Dowker overheard the applicant whisper to Ms Evans, ‘kill her’, before she again directed the pair to leave. The applicant then punched Ms Dowker in the face, prompting Mr Roles to strike the applicant with a piece of wood.
Ms Dowker, Mr Roles and Ms Mansell pushed the door of the unit closed while the offenders continued to push against the door in an attempt to gain access. After the door was closed successfully, the applicant and Ms Evans continued to strike the door in an effort to break it down. Ms Dowker began filming the incident on her phone.
The applicant picked up a long plank of wood from a nearby bush and used it to strike two windows of the unit, causing them to break. The applicant then positioned himself through the window and said to Mr Roles, ‘hit me again you dog and you heard what I said at the door’, alluding to the death threats made earlier.
Whilst still in the window, the applicant used the wooden plank to cause further damage to the reception area and seized an iPhone from the reception desk. Ms Dowker called the police.
The applicant then pulled himself through the window, fully entering the unit. Ms Dowker directed her daughter to barricade herself in the bathroom, as Ms Dowker and Mr Roles retreated to their bedroom and locked the door.
Ms Evans joined the applicant inside the unit by climbing through the broken window and encouraged the applicant to break down the bedroom door using the plank of wood. The applicant struck the bedroom door several times, creating a hole. The applicant stuck the wooden plank through the hole, whereupon it was seized by Mr Roles.
Through the hole, Mr Roles witnessed the applicant and Ms Evans continue to damage the room, including by watching the applicant throw a lamp at the door.
Shortly thereafter, police arrived at the scene and used capsicum spray to subdue and arrest the applicant and Ms Evans inside the unit.
Both offenders were remanded in custody on 10 January 2022 and granted bail on 16 February 2022.
Plea hearing
The applicant and Ms Evans resolved their matters at a committal case conference and were listed together for pleas on 23 January 2023. Only the applicant’s matter proceeded that day, due to Ms Evans’s counsel suffering a medical emergency. At the conclusion of the hearing, the judge ordered a CCO assessment and adjourned the applicant’s matter for sentence.
On 8 February 2023, Ms Evans’s matter returned for plea. The applicant viewed this proceeding via video-link but was unrepresented.
On 1 March 2023, both the applicant and Ms Evans’s matters returned to court for sentence. As described earlier, the sentencing judge delivered extensive oral reasons for sentence, announced he would impose the sentence outlined at [4] above in respect of the applicant but, for the reasons already explained, adjourned the sentencing to 17 March 2023.
After his arraignment and entry of a plea of guilty on 23 January 2023, the applicant was remanded in custody pending the hearing of Ms Evans’s plea on 8 February 2023. He was further remanded in custody on that date until the date of expected sentence on 1 March 2023. By 1 March 2023 he had been in pre-sentence detention for 77 days. He was then further remanded in custody until 17 March 2023, by which time his period of pre-sentence detention was 93 days.
Reasons for sentence
On 17 March 2023, the judge proceeded to sentence both offenders without inviting or receiving any further oral submissions. He first described the circumstances of the applicant and co-offender’s offending as summarised above.[9]
Objective seriousness of the offending
[9]Reasons, [5]–[15].
The judge assessed the objective seriousness of the offending. The judge noted that home invasion is ‘an inherently serious offence’, with a maximum penalty of 25 years’ imprisonment reflecting the strong disapproval with which the community views such offending.[10] Although lacking the aggravating feature of the offender being armed prior to arrival, the judge considered the offending to be a ‘reasonably serious example’ of home invasion, placing emphasis on the fact that it was committed ‘in company, with a weapon, and … in a misplaced attempt to revenge a perceived wrong through the exercise of vigilante justice’.[11]
[10]Reasons, [16].
[11]Reasons, [21]–[22].
The judge found that the applicant’s moral culpability for the offending was greater than that of his co-offender, as evident in the additional charges he faced and his ‘more pronounced’ role in the home invasion. Nevertheless, the judge also regarded Ms Evans’s moral culpability for the offending as ‘significant’.[12]
The applicant’s personal circumstances
[12]Reasons, [23].
The sentencing judge considered the applicant’s personal circumstances. In particular, he took into account:[13]
(a)the applicant’s disrupted and incomplete schooling;
(b)the applicant’s persistent drug use, including at the time of the offending;
(c)the report of psychologist Sandra Cokorilo, who opined that the applicant presents with a profile of compromised mental health, and meets the criteria for drug-use related disorders which likely affect his higher executive functions, propensity for aggression and cognitive functioning;
(d)positive character references from two of the applicant’s former employers;
(e)the applicant’s limited criminal history, genuine remorse and participation in drug and alcohol counselling since being granted bail; and
(f)the applicant’s previous breach of a CCO.
[13]Reasons, [26]–[35].
The judge concluded that the applicant’s prospects for rehabilitation depended on abstinence from substance abuse and engagement with psychological interventions, and considered these prospects to be ‘guarded’ at the time of sentencing.[14]
[14]Reasons, [36].
The sentencing judge also summarised the co-offender’s personal circumstances.[15]
Mitigatory factors
[15]Reasons, [37]–[53].
The sentencing judge identified several mitigatory factors common to both the applicant and Ms Evans. The judge noted that both pleaded guilty at the committal case conference stage, which he considered to be indicative of ‘some degree of remorse’, and of ‘particular utilitarian value’ in the context of disruption to the courts caused by the COVID-19 pandemic.[16] The sentencing judge also regarded the relative youth of the offenders as a ‘significant consideration’ (the applicant was aged 21 at the time of the offending, and 23 at the time of sentence), bearing in mind the principles endorsed by this Court in R v Mills.[17]
[16]Reasons, [55].
[17]Reasons, [56]–[57] citing R v Mills [1998] 4 VR 235.
In respect of Ms Evans, the sentencing judge identified several additional mitigatory factors. The judge accepted that principles in R v Bugmy[18] were enlivened, and that several limbs of R v Verdins[19] applied to the co-offender — namely, that her impaired mental functioning reduced her moral culpability, and that imprisonment would both weigh more heavily upon her and impact her mental health severely.[20] The judge also accepted that the onerous test of ‘exceptional’ family hardship was made out, on the basis of vital daily care provided by the co-offender to her mother.[21]
Application of s 5(2H) of the Act
[18]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[19]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[20]Reasons, [59]–[68].
[21]Reasons, [74].
The sentencing judge considered the application of s 5(2H) of the Act to the applicant and Ms Evans. On account of Ms Evans’s exceptional family hardship, the judge concluded that an exception to s 5(2H) was made out in Ms Evans’s case and he was not required to impose a custodial sentence.[22] The judge did not consider whether any of the exceptions contained in s 5(2H) applied to the applicant. Counsel for the applicant had conceded that a term of imprisonment was required and did not seek to establish any of these exceptions.[23]
Application of s 44(1) of the Act
[22]Reasons, [89].
[23]Reasons, [92].
In his Reasons the sentencing judge noted that, at the hearing on 1 March 2023, counsel for both the applicant and respondent submitted that the proposed sentence announced at that hearing would not be lawful, because it would offend against s 44(1) of the Act. The judge stated that both counsel had submitted that the 12-month time limitation imposed by s 44(1) would apply to the total effective sentence, and not just the sentence imposed on the applicant for charge 1.[24]
[24]Reasons, [97].
The judge then set out the view that he had expressed at the hearing on 1 March 2023, namely that, in the absence of one of the exceptions in s 5(2H) being made out, the Court was expressly prevented from imposing a combination sentence on the applicant under s 44.[25] The judge noted that he had sought written submissions from the parties on this point and about the operation of ss 44 and 38(2) of the Act.
[25]Reasons, [99].
After referring to the written submissions of the parties, the judge ultimately concluded that s 44(1) of the Act did not apply to the applicant’s case and that, as a consequence, the court was not permitted by law to impose the proposed sentence announced at the hearing on 1 March 2023.[26]
[26]Reasons, [107].
Having reached this conclusion, the judge stated that he had ‘rethought the appropriate sentence afresh’ and, bearing in mind the constraints that he had concluded were imposed by the Act, had decided to sentence the applicant to a term of imprisonment with a non-parole period.[27]
Parity
[27]Reasons, [109].
In light of the non-custodial sentence imposed on Ms Evans, the sentencing judge regarded the principle of parity as a constraint on the length of the applicant’s term of imprisonment.
The judge noted several differences between the respective circumstances of the applicant and Ms Evans — namely, the applicant’s greater moral culpability and more concerning criminal history, the additional mitigating circumstances that applied to Ms Evans and the absence of a family hardship consideration in the applicant’s case.[28]
[28]Reasons, [112].
Nevertheless, he concluded that in circumstances where Ms Evans would be sentenced to a CCO only, it would offend the principle of parity to sentence the applicant to a lengthy period of imprisonment with a non-parole period.[29] The judge concluded that a sentence of 30 months’ imprisonment on charge 1 was appropriate, with the sentences imposed in respect of charges 2, 3 and 4 to be served wholly concurrently.[30]
[29]Reasons, [113].
[30]Reasons, [114].
Ground 1: Misunderstanding of ss 5(2H), 38 and/or 44 of the Act
The applicant seeks leave to appeal against his sentence, firstly, on the ground that the sentencing discretion miscarried by reason of the sentencing judge misunderstanding ss 5(2H), 38 and/or 44 of the Act. The applicant submits that the judge erred in understanding these provisions to preclude the imposition, on 17 March 2023, of the sentence announced on 1 March 2023 or a similar combination sentence. As we have already observed, the respondent conceded that the sentencing judge erred. For the reasons that follow, we consider that concession to have been properly made.
Relevant legal principles
It is necessary to set out the relevant parts of ss 37, 38, 44 and 5(2H) of the Act.
Section 37 of the Act provides:
Community correction order
Subject to any specific provision relating to the offence, a court may make a community correction order in respect of an offender if—
…
(b)the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and
(c)the offender consents to the order.
Section 38 of the Act provides:
Period and commencement of a community correction order
(1)The period of a community correction order is the period determined by the court which must not exceed—
(a)in the case of an order made by the Magistrates’ Court—
…
(b)in the case of an order made by the County Court or the Supreme Court in respect of one, or more than one, offence, 5 years.
(2)Unless section 44(3) applies, a community correction order must commence on a date specified by the court that is not later than 3 months after the making of the order.
Section 44 of the Act provides:
Imprisonment and a community correction order
(1)Subject to any specific provision relating to the offence, 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 one year or less.
…
(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.
(4)A reference in this section to a sentence of imprisonment does not include a sentence that has been suspended.
Section 5(2H) of the Act provides:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
[there follow a number of exceptions which are not presently relevant to state].
In summary form, these provisions relevantly operate in this way:
(a)First, subject to any specific provision relating to an offence, the court may impose a CCO provided that the offender has been convicted of an offence punishable by more than 5 penalty units, a suitable pre-sentence report has been obtained, and the offender consents to the order: s 37.
(b)Secondly, a CCO must begin within 3 months of the making of the order unless s 44(3) applies (the effect of which is described in (d) below): s 38(2). Section 44(3) applies if an order for a CCO is made together with an order for imprisonment pursuant to s 44(1).
(c)Thirdly, s 44(1) provides that, subject to any specific provision relating to an offence, a court may make a combined order of a term of imprisonment and a CCO in respect of one, or more than one, offence only if the sum of all the terms of imprisonment to be served (after deducting any period of pre-sentence detention) is 12 months or less.
(d)Fourthly, if the court makes such a combined order, the CCO commences upon the release of the offender from imprisonment: s 44(3).
(e)Fifthly, s 5(2H) requires a court to impose a ‘straight’ term of imprisonment (that is, not in combination with a CCO) in relation to ‘a category 2 offence’ unless one of the exceptions in that section is found to apply. This is a ‘specific provision relating to an offence’ of the kind referred to in ss 37 and 44(1).
Section 44 is the source of power to impose both a term of imprisonment and a CCO, often referred to as a ‘combination sentence’. Such a combination sentence may be imposed in various distinct circumstances:
(a)when imprisonment and a CCO are imposed as one sentence with respect to one offence; or
(b)when imprisonment and a CCO are imposed as an aggregate sentence with respect to multiple offences; or
(c)when imprisonment is imposed with respect to one offence or multiple offences and a CCO is separately ordered as the sentence for another offence or other multiple offences.
As we explain below, it is the third category that is in issue in the present case.
In any of these circumstances, s 44 contains two limitations upon the power to impose a combination sentence:
(a)The first limitation is ‘any specific provision relating to the offence’, which may preclude the making of a combination sentence in respect of that offence. Section 5(2H) is such a provision. Subject to the exceptions stipulated in that section, it precludes the court making a combination sentence in respect of a category 2 offence (such as home invasion).
(b)The second limitation is that the sum of all the terms of imprisonment to be served (after deduction of any period of pre-sentence detention) must be 12 months or less.
Where the source of power to make a CCO is s 44, then s 44(3) governs the time when the CCO commences. Otherwise, s 38(2) governs the time when the CCO commences.
Home invasion is a category 2 offence. The other indictable offences to which the applicant pleaded guilty are not. The applicant did not seek to invoke any of the exceptions to the operation of s 5(2H). Necessarily, therefore, the judge was obliged to impose a head sentence and a non-parole period in relation to charge 1 (home invasion). However, subject to the time limitation with respect to the sum of all periods of imprisonment to be served, the judge was not prevented from imposing a CCO in relation to any of the other offences to which the applicant pleaded guilty (whether as the sole sentencing disposition, or in combination with a term of imprisonment).
The error in sentencing
It is useful to repeat what the judge originally intended to impose by way of sentence on the applicant. Ignoring the penalties for the related summary offences, the sentences the judge announced he wished to make on 1 March 2023 may be depicted as follows:
Charge
Offence
Maximum
Sentence
1
Home invasion
25 years
15 months
2
Common Assault
5 years
18-month CCO to commence upon release from prison.
3
Damaging Property
10 years
4
Theft
10 years
Pre-sentence detention:
77 days
Except for the limitation relating to the sum of all the terms of imprisonment to be served, there was nothing wrong with this sentencing structure. But, as was pointed out by both the applicant and the respondent on 1 March 2023, 77 days of pre-sentence detention was an insufficient period of time to reduce the sum of all terms of imprisonment to be served (that is, 15 months) to 12 months or less. By 17 March 2023, however, there were 93 days of pre-sentence detention, which reduced the sum of all terms of imprisonment to be served below 12 months. In other words, as a matter of legal power, on 17 March 2023 there would have been no problem with the judge imposing the sentence he originally intended to impose.[31]
[31]The respondent accepted that the sentence pronounced on 1 March 2023 was not precluded by the operation of ss 5(2H), 38(2) and 44; but, as we discuss below, the respondent contended that such a sentence would have been manifestly inadequate and thus not open to the sentencing judge for that reason.
It is now necessary to set out in full what the judge said in his sentencing remarks on 17 March 2023 after he had read and considered the written submissions he invited from the parties after the 1 March 2023 hearing.
As we explained above, the judge reiterated the view that he had expressed on 1 March 2023, that
in the absence of a conclusion that one of the exceptions in s 5(2H) was made out, the court is expressly prevented from imposing a combination sentence under s 44 in this case.[32]
[32]Reasons, [99].
His Honour then set out the submission from the applicant’s counsel that, under s 44(1) of the Act:
[T]he 12-month jurisdictional limit for the imposition of a term of imprisonment as well as a CCO applies whether a combination sentence is to be imposed upon a single charge or as the product of a total effective sentence made up of sentences imposed on any number of charges. What is relevant is that the total period of imprisonment to be served under the accused’s global sentence does not exceed 12 months.[33]
[33]Reasons, [103].
The judge continued:[34]
This is said to follow from the Court of Appeal’s decision in the case of DPP v Keller.[35] I do not accept this. The issue in Keller was whether there was a valid notice of appeal before the Court. The accused had been sentenced to a total effective sentence of 12 months’ imprisonment to be followed by a 3-year CCO. This had been effected by the imposition of 3 separate sentences. The notice of appeal failed to identify which of the three sentences was the subject of the intended appeal. Under s 287 of the Criminal Procedure Act 2009 for a notice to be valid it must identify the ‘sentence’ or ‘sentences’ which are the subject of the intended appeal. The total effective sentence is not a ‘sentence’ for this purpose.
At paragraph [68] of the judgment in Keller, the Court observed that s 44(1) of the Sentencing Act 1991 ‘authorises a court to make a CCO in addition to a sentence of imprisonment where “the sum of all the terms of imprisonment to be served” is one year or less’. Contrary to the submissions of defence, it does not follow from this that the 12 month limit applies in a case such as the present where s 44(1) is expressly excluded from applying.
The Director accepts that the proposed sentence is not a combination sentence. The Director submits that the effect of s 38(2) of the Sentencing Act 1991 is that any CCO to be imposed in this case must commence within 3 months. The Director concludes that the ‘proposed sentence falls contrary to Part 3A of the Act’.
I conclude that s 44(1) has no application in a case such as the present. I note that, in the case of DPP v Daniher (a pseudonym),[36] his Honour Judge Doyle came to the same conclusion. His Honour considered that Parliament’s use of the singular when referring to ‘the offence’ in both s 5(2H) (‘category 2 offence’) and s 44(1) (‘offence’) support such a construction. As his Honour concluded, ‘s 5(2H) could have explicitly provided that combination sentences were precluded for multi‑charge combination sentences where one of the offences on the indictment is a category 2 offence but it does not’.[37]
However, that does not mean that the sentence I announced in open court was one that the court was permitted by law to make. That is because, once it is concluded, as it must be, that I am not imposing a combination sentence under s 44(1), if I want to sentence Mr Wright to a CCO on charges 2-4, in addition to a term of imprisonment on charge 1, the CCO must commence within 3 months of today’s date.[38] A sentence of imprisonment of 3 months on charge 1 would be inadequate having regard to the maximum penalty and my assessment of the objective gravity of Mr Wright’s offending and his moral culpability for it.
[34]Reasons, [104]–[108] (emphasis added).
[35][2021] VSCA 334, [68].
[36]DPP v Daniher (a pseudonym) [2020] VCC 945 (Judge Doyle).
[37]Ibid [69].
[38]Sentencing Act 1991, s 38(2).
With respect, as a matter of statutory construction the judge’s analysis was incorrect in a number of respects.
The judge did not clearly explain why he had concluded that s 44(1) was ‘expressly excluded’, but we infer from his Honour’s reasons that he considered this to result from the operation of s 5(2H) of the Act. However, s 5(2H) applied to charge 1 (in circumstances where none of the exceptions were invoked) to preclude a CCO or a combined term of imprisonment and a CCO for that charge. As we have said, s 5(2H) did not apply to charges 2, 3 and 4 (not being category 2 offences) and thus did not preclude the imposition of a CCO in respect of those charges, so long as the sum of all of the terms of imprisonment being imposed in the total sentencing disposition did not exceed 12 months.
Section 44(1) was not (expressly) excluded from operating, as the judge thought —contrary to the judge’s view, it did have application to the case. Thus, s 44(3) also had application.
As a consequence, and contrary to the written submissions made to the sentencing judge on behalf of the respondent, which the judge accepted, s 38(2) was not the governing provision for the commencement of any CCO the judge might have imposed. Rather, s 44(3) was the governing provision in relation to commencement.
The judge’s error appears to have stemmed from construing s 44(1) so as to preclude the power to order a combination sentence at all if the court had no power to make a combination sentence in respect of any one of the offences for which the offender stood to be sentenced. Or perhaps, more narrowly, the judge considered that s 44(1) did not apply to authorise a combination sentence where the imprisonment component of the combination sentence was for an excluded offence (such as a category 2 offence) but the CCO component was imposed on other, non-excluded offences.
As we have explained, we do not consider that the text of the provision bears either of those meanings. We do not consider that the use of the singular word ‘offence’ in s 5(2H) and the opening words of s 44(1) compels either conclusion. The power to order a combination sentence under s 44(1) is stated broadly. In terms, it arises ‘when sentencing an offender in respect of one, or more than one, offence’. Because of the limitation in the opening words, a combination sentence cannot be imposed, individually, in respect of (for example) a category 2 offence. However, so long as that limitation is observed, and the sum of all of the terms of imprisonment imposed when sentencing for multiple offences — including in respect of (for example) any category 2 offence — does not exceed 12 months, a court may make a CCO for one offence (in relation to which there is no specific provision) in addition to imposing a sentence of imprisonment in respect of another offence or offences (for which a specific provision provides that a CCO may not be imposed).
But for the problem with the 12-month limitation, the power to order the sentences the judge intended to impose on charges 1, 2, 3 and 4 on 1 March 2023 fell squarely within the terms of s 44(1). When the judge returned to sentence the applicant on 17 March 2023, the power to order a combined sentence on that day was available and he was in error to think otherwise.
In essence, in submissions made to this Court, the applicant put forward the analysis we have just rehearsed, and the respondent agreed. It follows that, as conceded by the respondent, the judge was in error in respect of his analysis of ss 5(2H), 38 and 44 of the Act when sentencing the applicant on 17 March 2023. An error in the sentence having been established, it remained for the applicant to persuade us that a different sentence should be imposed.
As stated above, the applicant also relied upon two further grounds of appeal, namely, a denial of procedural fairness and the misapplication of the principle of parity. Having already found a specific error, it is unnecessary to consider either of those alternative grounds. Nevertheless, because consideration of the application of the principle of parity informs the question whether any different sentence should be imposed, the parties argued the substance of the third proposed ground, albeit for a different purpose than to debate whether or not there was a specific error.
Should a different sentence be imposed?
For the applicant, it was argued that although home invasion is undoubtedly a serious offence for which Parliament has prescribed a very significant maximum penalty of 25 years’ imprisonment, in all of the circumstances of this case, the sentence which the judge intended to impose on 1 March 2023 would have been appropriate to impose on 17 March 2023 (when sufficient further days had passed in order to bring the total sum of all sentences to be served within the 12-month time limit). The applicant submitted that it remains an appropriate sentence, such that the Court should be persuaded that a different sentence to the one passed on 17 March 2023 should be imposed. Alternatively, he submitted that, even if the Court did not consider the sentence imposed on 1 March 2023 to be appropriate, a sentence at the lowest point of the available range ought to be imposed.
The respondent submitted that the sentence intended to be imposed on 1 March 2023, even though technically available on 17 March 2023 because of the additional time served in pre-sentence detention, would not have been a lawful sentence because of its inadequacy to meet the legitimate sentencing purposes having regard to the seriousness of the offending. As for the sentence passed on 17 March 2023, the respondent argued that, having regard to all relevant circumstances including the impact of parity considerations, it was at the lowest end of the available range of sentences such that this Court should not be satisfied that a different sentence should be imposed.
In making his submission, the applicant relied upon a combination of salient factors:
(a)He committed the offence whilst aged 21, was aged 23 on the date of sentence, and thus was sentenced as a youthful offender.
(b)There was no evidence of premeditation in the offending; it resulted from an outburst of anger, consistent with youthful immaturity.
(c)This is his first period of imprisonment.
(d)Whilst acknowledging that he committed the offence while subject to an existing CCO and had a prior conviction for failing to answer bail, he nevertheless spent 11 months on bail for this offending, during which time he complied with stringent conditions including a night curfew without incident, and participated in drug and alcohol counselling.
(e)As revealed by the Department of Justice and Community Safety report dated 10 November 2021, the applicant’s breach of the earlier CCO was characterised by a lack of insight and disengagement from support services, whereas a report dated 21 January 2023 from GV Health indicates a greater level of engagement with a drug and alcohol support program he had participated in during his bail, which is indicative of greater maturity.
(f)He pleaded guilty at a very early time, in circumstances where greater weight is to be given to such a plea in light of the impact of the COVID-19 pandemic on the criminal justice system.[39]
[39]Worboyes v The Queen [2021] VSCA 169, [35].
In addition to these factors in mitigation, the applicant argued that there were two further significant matters to be taken into account:
(a)first, a moderating allowance for what was analogous to double jeopardy; and,
(b)secondly, a significant discount on sentence to avoid a justified sense of grievance having regard to the significantly lower sentencing disposition given to Ms Evans.
‘Double jeopardy’ analogy
In Victoria, on a Crown appeal against a sentence, the Court is prohibited from taking into account any element of double jeopardy either in considering whether an appeal should be allowed or, having allowed the appeal, imposing a new sentence.[40] No such prohibition applies in relation to consideration of whether a lesser sentence should be imposed on an appeal by the offender. Here, the applicant acknowledges that he has not, strictly speaking, been exposed to double jeopardy. He was not actually sentenced on 1 March 2023. Nevertheless, he contends that he is entitled to an allowance for what he experienced between 1 March 2023 and 17 March 2023, which he characterises as being analogous to double jeopardy.
[40]Criminal Procedure Act2009, ss 289(2), 290(3).
The applicant referred us to a decision of Murray J as a member of the Western Australian Court of Criminal Appeal in R v Leucus,[41] a Crown appeal against an allegedly lenient sentence imposed by the sentencing judge. In an extensive discussion on the topic of double jeopardy,[42] Murray J referred to the remarks of the Full Federal Court in R v Tait,[43] citing the observation of Isaacs J in Whittaker v The King that a Crown appeal puts in jeopardy ‘the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal’.[44] The Full Federal Court added that, ‘[t]he freedom beyond sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court’.[45]
[41]R v Leucus (1995) 78 A Crim R 40 (‘Mony Leucus’).
[42]Ibid 49–52.
[43]R v Tait (1979) 46 FLR 386, 388–9 (Brennan, Deane and Gallup JJ) (‘Tait’).
[44]Whittakerv The King (1928) 41 CLR 230, 238 (Isaacs J); [1928] HCA 28.
[45]Tait (1979) 46 FLR 386, 389 (Brennan, Deane and Gallup JJ).
In the result, Murray J was persuaded that, upon allowing the Crown appeal, the offender should be resentenced for a somewhat lesser period than would otherwise have been imposed after having regard ‘to the principle of double jeopardy to somewhat modify the result towards the bottom or more lenient end of the range of proportionate sentences’.[46]
[46]Mony Leucus (1995) 78 A Crim R 40, 52.
In this case, the applicant asks this Court to have regard to something analogous to double jeopardy to moderate the result toward the bottom end of the range of available sentencing dispositions. He points out that on 1 March 2023, the sentencing judge pronounced a sentence which would have had the effect that he, the applicant, was to serve a 15-month term of imprisonment and thereafter be subject to an 18-month CCO. In the course of the sentencing reasons on that date, the judge said:
Mr Wright, having regard to the nature of your offending, your early plea of guilty, your youth and other matters of mitigation, as well as current sentencing practices, I consider that a sentence of 15 months’ imprisonment is appropriate on Charge 1. As Charges 2, 3 and 4 are founded on the same facts, I sentence you to an 18 month community correction order in respect of those offences to commence immediately you are released from custody.
Very shortly afterwards, the judge decided to adjourn the case for 16 days to consider the legality of the sentence he had just announced. Before adjourning, it was pointed out by counsel then appearing for the applicant that on the deferred date the 12-month time limitation would have been satisfied due to the lapse of time. In response, the judge said:
Yes, I hadn’t thought about that. I think that’s probably right, isn’t it? Am I overhearing we’d just defer sentencing until that date? The court would still be assisted by the written submissions.
…
I’m obviously very keen to avoid making an error in sentencing other than in accordance with law.
…
So I’ll leave it on the basis that I’ll defer sentencing Mr Wright until Friday, 17 March, and at 9.30, and seek from the parties written submissions on the point that’s arisen by close of business on Wednesday the 13th.[47]
[47]Ibid [147], [151], [153].
The applicant submitted before us that even though he was not, as a matter of law, sentenced on 1 March 2023, and nor was his liberty deprived on that date, he at least had the initial experience of being sentenced and, shortly thereafter, the continuing expectation or hope that he was to be sentenced to no more than a 15-month term of imprisonment with an 18-month CCO. That is, he had the reasonable impression that on the return date, with the additional pre-sentence detention days having been served, the judge would be minded to impose the same sentence he had pronounced on 1 March 2023. Accordingly, on 17 March 2023 when he was sentenced to twice that period of imprisonment, he was subjected to something analogous to ‘double jeopardy’. He submitted that some demonstrable allowance should be made by this Court for the impact of that experience when considering an appropriate sentence.
The respondent argued that the applicant did not experience double jeopardy but, if anything, a ‘disappointment’ arising from the facts just outlined. Nevertheless, the respondent accepted that such an event could potentially warrant some form of moderation of the sentence that would otherwise be appropriate, depending on the circumstances. In these particular circumstances, however, that impact was negligible when regard is paid to the fact that the applicant was not finally sentenced, the sentencing process was adjourned to permit the judge to reconsider matters after receiving further submissions, there was no guarantee of the future outcome and, in any event, the period of time for which the applicant carried that uncertainty was short — only 16 days.
Additionally, whilst emphasising that, of course, one must acknowledge that every day of a head sentence might be served, the respondent submitted that if consideration is to be given to the subjective impact of the experience upon the applicant, the practical outcome for the applicant on the actual sentence is not so very different from what he expected to occur on 1 March 2023. That is, providing the applicant is well behaved, he could reasonably expect he will serve something in the order of 15 months’ imprisonment and thereafter be supervised on parole for a further period of 15 months, as opposed to being supervised on a CCO for 18 months.
Parity
On the question of parity, the applicant began by acknowledging that there were significant matters that required that he should receive a more severe sentence than his co-offender, Ms Evans. First, the applicant acknowledged that she was able to call upon a number of mitigating considerations that were not relevant to the applicant — in particular, hardship to the family which the sentencing judge found to be exceptional,[48] the principles from Bugmy v The Queen,[49] and most of the limbs in R v Verdins.[50] Moreover, the sentencing judge had more sentencing options available in respect of Ms Evans, because Ms Evans was able to invoke an exception under s 5(2H) of the Act so that the court was not required to impose a term of imprisonment upon her.
[48]Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105.
[49]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[50]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
That said, the applicant contended that there was not much to distinguish their respective involvement in the offending. He maintained that whilst he was the ‘muscle’ who implemented the violence, Ms Evans was the driving force behind the initial confrontation and actively encouraged the applicant throughout.
The applicant contended that Ms Evans had a lesser claim on youth (being two years older), and both could claim remorse and an early guilty plea. Given that she ‘walked away’ without any term of imprisonment, and a shorter CCO even than the applicant’s prison term, the applicant would be left with an objectively justifiable sense of grievance.[51] The sentences were ‘worlds apart’.
[51]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ, Wilson J agreeing), 613 (Mason J); [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ), 314 (McHugh J), 323 (Gummow J), 327 (Kirby J); [1997] HCA 26.
Against this, the respondent submitted that any sense of grievance with respect to the sentence imposed on the applicant’s co-offender is simply not justifiable when regard is had to the distinctions identified and the relevant findings with respect to their different roles and circumstances. The respondent emphasised that the applicant fell to be sentenced for the assault and theft, two offences with which Ms Evans was not charged. With respect to the primary offence and the damage to property, the respondent submitted that the applicant’s role was more pronounced and his moral culpability was greater. He was the first to enter the home after he had assaulted Ms Dowker. It was the applicant who located and used the weapon, and who broke the window and attempted to break down the door, as the sentencing judge had highlighted. Ms Evans, although on bail at the time of the offences, was not on a CCO as the applicant was, and she had a less concerning prior criminal history.
The respondent emphasised the substantial and powerful personal factors in mitigation which the applicant acknowledged were not available to him but were to be taken into account in favour of Ms Evans — namely, the exceptional family hardship, a childhood experience which enlivened the Bugmy principles, and her impaired mental functioning which enlivened most of the Verdins limbs.
Thus, the respondent submitted that, as the sentencing judge had found, Ms Evans’s moral culpability was reduced and, in sentencing, there was the need for appropriate moderation of specific and general deterrence. Further, account had to be taken of how imprisonment would weigh more heavily upon her because of her mental health and the impact that imprisonment would have on her mental health.
Arising from these ‘compelling circumstances’, the respondent submitted that the sentence imposed on Ms Evans was itself extraordinarily lenient. Had it not been for the ‘downward pull’ of the parity principle, a much higher sentence would have been called for with respect to the applicant. To avoid unjustifiable disparity, the sentencing judge could only, as he did, reduce the applicant’s sentence ‘to a level that might otherwise be regarded as at the bottom end of the range’, but not to the point where it was wholly inappropriate or outside the range.[52]
Consideration
[52]DPP v Bowden [2016] VSCA 283, [50]–[60], [73]–[75]; Taleb v The Queen [2020] VSCA 329, [7], [34].
Ultimately, we agree with the submission put forward on behalf of the respondent. Having regard to the cases to which the parties drew our attention,[53] we observe that it is highly unusual for a sentence of less than 3 years’ imprisonment to be imposed upon an offender for the offence of home invasion. Many sentences were considerably higher. So much was accepted by the applicant in oral submissions.
[53]Hogarth v R (2012) 37 VR 658, [63]; [2012] VSCA 302; Taleb v The Queen [2020] VSCA 329, [32]; Hope v The Queen [2021] VSCA 177, [44], [53]; Mang v The Queen [2022] VSCA 10, [24]–[26]; Jackson v The Queen [2020] VSCA 95, [157].
Additionally, and importantly, the judge did not cumulate any portion of the sentences imposed on the applicant in respect of the assault, theft or damage to property. Nonetheless, the judge explicitly recognised that those offences involved separate criminality from, and did not aggravate, the offence of home invasion.[54] In our view, the only explanation for not ordering any cumulation of the sentences imposed for the offences of assault and damaging property was that the judge took account of parity with Ms Evans’s sentence and the principle of totality in that way, rather than considering any further reduction to the head sentence for home invasion.
[54]Reasons, [19].
We are also mindful of the fact that the judge fixed a non-parole period at 50 per cent of the head sentence, allowing for a relatively generous period of parole supervision, should parole be granted.
The judge was correct to assess this as a reasonably serious example of the offence of home invasion. Home invasion is, itself, an inherently serious offence. There were good reasons for there to be a significant degree of disparity between the sentence for the applicant and the sentence for Ms Evans. Whilst, in the unusual situation that occurred in the sentencing process, there was a short period of time during which the applicant maintained a hope, if not a reasonable expectation, of receiving a lower term of imprisonment than that which was ultimately imposed, the moderating impact of that experience is, in our view, negligible.
In all the circumstances, we can only conclude that by the very lenient sentence that was imposed on charge 1, the complete concurrency allowed for the sentences on charges 2, 3 and 4, and a non-parole period of 15 months, the judge has given the maximum allowance for all mitigating features available to the applicant and paid proper regard to the principle of parity with Ms Evans’s sentence. The result is a sentence which, in this particular collection of circumstances, is at the lowest end of the available range.
For these reasons, we are not satisfied that this Court should impose any different sentence. The appeal must be dismissed.
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