Zammit v The Queen

[2012] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0104

SHANE ZAMMIT	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2012
DATE OF JUDGMENT	12 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 216
JUDGMENT APPEALED FROM	DPP v Zammit (Unreported, County Court of Victoria, Judge Taft, 13 April 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Plea of guilty to 13 charges including aggravated burglary, recklessly causing serious injury and multiple counts of theft — Applicant attacked occupier of house with shifting spanner and stole various items — Sentenced to seven years and six months’ imprisonment with non-parole period of five years — Offending linked to drug use — Whether reasonably arguable that sentence manifestly excessive — Particularly serious offending — Significant prior criminal history—Application refused — No point of principle.  

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A  Dickenson	Melasecca, Kelly & Zayler
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
WEINBERG JA:

1. The applicant, Shane Edward Zammit, pleaded guilty in the County Court at Melbourne to some 13 charges, most of which involved dishonesty, but two of which were offences of violence.  On 13 April 2012, he was sentenced as follows:

Charge	Offence	Sentence	Cumulation
Indictment B12930043	1	Theft of Petrol	7 days	Nil
	2	Theft	7 days	Nil
	3	Obtaining Financial Advantage by Deception	7 days	Nil
	4	Theft	7 days	Nil
	5	Theft	7 days	Nil
	6	Theft	3 months	1 month
	7	Aggravated Burglary	5 ½ years	Base
	8	Recklessly Cause Serious Injury	4 years and 9 months	12 months
	9	Theft	7 days	Nil
	10	Theft	3 months	1 month
	11	Reckless Conduct Endangering Serious Injury	18 months	9 months
	12	Theft	3 months	1 month
	13	Possession of Methylamphetamine	7 days	Nil
Total effective sentence		7 ½ years’ imprisonment
Non-parole period		5 years
Pre-sentence detention		175 days
Section 6AAA declaration		9 years and 3 months’ imprisonment with a non-parole period of 6 years and 9 months

1. The maximum penalty for theft (charges 1-2, 4-6, 9, 10 and 12) was ten years’ imprisonment.  The maximum penalty for aggravated burglary (charge 7) was 25 years’ imprisonment, and for recklessly causing serious injury (charge 8), 15 years’ imprisonment.  The maximum penalty for reckless conduct endangering serious injury (charge 11) was five years’ imprisonment.  Finally, the maximum penalty for possession of methylamphetamine (charge 13) was 12 months’ imprisonment.

Circumstances of the offending

1. The most serious offences were, of course, those that gave rise to charges 7 and 8.  

1. On 23 September 2011, the applicant and his girlfriend, Shantelle Shepherd, went to a house in Cranbourne Road, Langwarrin.  They knocked on the door, and gained entry to the premises.  The applicant then removed a large shifting spanner from his backpack.  He advanced towards the occupier, Cem Pecen, whilst wielding that tool above his head.  He chased Pecen around a pool table, exclaiming: ‘This cunt owes me five grand, where is he? He owes me all this shit.”

1. The applicant struck Pecen four or five times to the head.  Pecen grabbed a pool cue to defend himself.  The applicant then told Shepherd to get some knives from the kitchen.  She returned with two knives, and handed one to the applicant.  The two of them then advanced towards Pecen, threatening to kill him if he did not behave himself.  In response to this threat, Pecen put down the pool cue.  At the applicant’s instigation, Shepherd tied Pecen up with electrical cord and put him in the pantry.

1. The applicant told Shepherd that if Pecen moved, she should ‘stab the cunt’.  He and Shepherd then consumed a quantity of beer and some Xanax tablets that they located at the premises.  They proceeded to ransack the house, stealing a variety of items, none of which were of any great value.  

1. Pecen managed to break free after the applicant and his girlfriend left.  He called the police, and was taken to Frankston hospital before being transferred to the Alfred Hospital for specialist treatment.  He was diagnosed with a fracture to the back of the skull, temporary hearing loss, severe swelling and ongoing soreness and pain.  He spent about two weeks in hospital. 

1. Charge 11, that of reckless conduct endangering serious injury, arose from a police chase on 30 September 2011.  Shortly after 10am on that day, the applicant was found asleep in a stolen car at Endeavour Hills.  Police knocked on the car door and woke him.  He gave a false name.  A female constable told him that he was under arrest for theft of stolen registration plates which had been fitted to the vehicle.  He attempted to close the door, before grabbing the constable’s arm and pulling her into the vehicle.  She sprayed him with capsicum spray.  The applicant then started the car and drove it into the police vehicle which was parked in front of it.  A pursuit followed.  In the course of that pursuit, the applicant drove through the backstreets of Endeavour Hills at speeds exceeding 90 kilometres per hour (in a 50 kilometre per hour residential zone).  Police eventually lost sight of the applicant’s vehicle, which was later found abandoned. 

1. The bulk of the remaining charges involved thefts of varying amounts.  The sentencing judge was highly critical, and rightly so, of the Crown for laying separate charges in relation to each of the items in question when, plainly, some, or all, of those charges could, and should, have been ‘rolled-up’.[1] 

   [1]Davy v The Queen [2011] VSCA 98; Walker & Kormez v The Queen [2011] VSCA 160.

1. Charge 1 concerned the theft of $64 worth of petrol on 23 August 2011.  Charge 2 involved the theft of $69 worth of petrol on 6 September 2011.  Charge 9 concerned a further theft of $76 worth of petrol on 24 September 2011.  Charges 4 and 5 arose from the theft of two meat pies and some cigarettes from a service station on 20 September 2011, and a further theft on the following day of a quantity of alcohol, a microwave oven, a bath robe and a lamp belonging to a motel where the applicant and his girlfriend had stayed.  Charge 3 arose out of the fraudulent use of a credit card to pay for accommodation at that motel.  The financial advantage obtained came to a figure of $338. 

1. Charge 6 concerned the theft of a motor vehicle which the applicant had rented from ‘Rent-a-Bomb’ and failed to return.  Charge 10 arose from the theft of registration plates from a vehicle parked near a factory in Braeside on 28 September 2011.  Finally, charge 12 concerned the theft of two Apple iPhones from a mobile phone store at the Waverley Gardens Shopping Centre on 10 October 2011. 

1. The applicant was arrested on 20 October 2011.  He was found hiding under a bed at his grandparents’ home.  A small amount of methylamphetamine was found wrapped in a piece of foil in his wallet.  Possession of that drug gave rise to charge 13.  The sentencing judge accepted that the substance was for his personal use. 

1. When interviewed by police, the applicant denied any connection with the incident at Langwarrin.  He maintained that he did not know Shantelle Shepherd.  That was a particularly stupid lie since his full name was tattooed on her body.  He also denied any involvement in the police pursuit. 

1. The applicant ultimately pleaded guilty, at a relatively early stage of proceedings, in the Magistrates’ Court.  The sentencing judge accepted that the plea reflected acknowledgment on his part of his wrongdoing, and had utilitarian value.  He added, however: ‘I am entirely unpersuaded that the guilty pleas denote significant remorse or insight’.  That observation was immediately followed by reference to the case against the applicant having been ‘overwhelming’, particularly once the police recovered the spanner and stolen items which were in his possession, and identified his fingerprints at various critical locations. 

Personal circumstances

1. The applicant was aged 28 when sentenced for these offences.  He had a significant number of prior convictions, many of them for serious offences.

1. In September 2001, he was dealt with in the County Court for five armed robberies and two attempted armed robberies.  On that occasion, he was sentenced to three years’ detention in a youth training centre.  The offences in question involved the use of knives and other weapons at various service stations. 

1. In March 2004, the applicant was convicted in the Magistrates’ Court at Frankston of one charge of burglary and one charge of theft.  He received an aggregate fine of $450 for these offences. 

1. In May 2007, the applicant was sentenced to a term of imprisonment, to be served by way of an intensive correction order, for recklessly causing serious injury, resisting police and driving whilst disqualified.  He subsequently breached that order by further offending. 

1. In December 2009, the applicant was convicted of trafficking amphetamines, trafficking cannabis and other offences.  On the two trafficking charges, he was sentenced to a total of 12 months’ imprisonment, partially suspended.

1. The sentencing judge was made aware of the fact that there were outstanding summary matters still to be heard in the Magistrates’ Court which, if proved, would breach the partially suspended term of imprisonment. 

1. The sentencing judge referred to what he termed ‘an unremarkable psychological report’ dated 20 March 2012, authored by Dr Simon Kennedy.  That report recorded that the applicant had grown up on the Mornington Peninsula.  His parents separated when he was aged four, and his mother had subsequently been involved with a number of partners, some of whom had been violent towards her.  The applicant had been physically abused by those partners. 

1. By the time he was 14, the applicant was using cannabis and heroin, and drinking to excess.  He had held only one job of any consequence, having worked for Telstra for about six months after his release from Fulham Prison in July 2010.  He had then been made redundant.  In 2011, the applicant used ‘ice’ and benzodiazapines, and consumed significant quantities of alcohol.  He met his girlfriend at the beginning of 2011, she having previously worked in the sex industry. 

1. The sentencing judge commented that the applicant’s offending was ‘clearly linked’ to his drug use.  He characterised the applicant’s prospects of rehabilitation as ‘bleak’, unless he could overcome his dependence on illicit drugs. 

1. The Crown proffered a MacNeil-Brown[2] range of between six and eight years’ imprisonment with a non-parole period of between four and five years.  His Honour commented that the gravity of the offending demanded a term of imprisonment towards the higher end of that range. 

   [2]MacNeil-Brown v The Queen (2008) 20 VR 677.

The proposed ground of appeal

1. There were originally four proposed grounds of appeal, but during the course of oral argument, ground 1 was expressly abandoned, and grounds 3 and 4 were not pressed.  The applicant now proposes to rely only upon ground 2, which is in the following terms.

2.The individual sentences on Charges 7 & 8, and the non-parole period, are manifestly excessive, particularly having regard to:

a.        the principle of totality;
b.        the inter-related circumstances of the offending;
c.        the applicant’s plea of guilty; and
d.        the current sentencing practice for these charges

The applicant’s submissions

1. It was submitted on behalf of the applicant that the individual sentences of five years and six months imposed on charge 7, and four years and nine months imposed on charge 8, were themselves manifestly excessive.  So too, it was said, were the total effective sentence of seven years and six months, and the non-parole period of five years.

1. More particularly, it was submitted that the sentences imposed on charges 7 and 8 were ‘at the statistical extreme’ of current sentencing practices for aggravated burglary and recklessly causing serious injury.  In addition, it was said that the sentencing judge failed to give proper weight to the principle of totality, and the plea of guilty, and ought to have ordered less cumulation in relation to the various charges than he did. 

1. In support of his submission regarding current sentencing practices, counsel for the applicant referred to the Sentencing Advisory Council’s ‘Sentencing Snapshots’ for recklessly causing serious injury and aggravated burglary.[3]  He emphasised that the sentences imposed on charges 7 and 8 were significantly above the median sentences disclosed by those Snapshots, namely two years and six months’ imprisonment for recklessly causing serious injury, and two years’ imprisonment for aggravated burglary.

   [3]Sentencing Advisory Council, Sentencing Snapshot No 126: Sentencing Trends for Causing Serious Injury Recklessly in the Higher Courts of Victoria (June 2012); Sentencing Advisory Council, Sentencing Snapshot No 124: Sentencing Trends for Aggravated Burglary in the Higher Courts of Victoria (June 2012).

1. Counsel also referred to the Sentence Advisory Council’s reports on current sentencing practices for causing serious injury and aggravated burglary.[4] 

   [4]Sentencing Advisory Council, Causing Serious Injury Recklessly and Intentionally – Current Sentencing Practices (September 2011); Sentencing Advisory Council, Aggravated Burglary Current Sentencing Practices (June 2011).

1. In relation to the sentence on charge 7, counsel acknowledged that it is difficult to draw comparisons between aggravated burglary cases because of the variety of circumstances in which that offence can be committed.  He relied on the Sentencing Advisory Council’s report to contend that, in relation to ‘confrontational’[5] aggravated burglary, only one per cent of offenders in the relevant timeframe received a sentence equal to, or greater than, that given to the applicant.  He submitted that there were only six sentences involving aggravated burglary in which a total effective sentence greater than seven years and six months’ imprisonment had been imposed in the period covered by those statistics.  He further submitted that aggravated burglary is often dealt with together with other, more serious, matters than recklessly causing serious injury, though he did not explain what, if anything, should be drawn from that assertion. 

   [5]That term is relevantly defined to mean aggravated burglaries where the offender enters the premises to confront someone or to use violence in the context of a dispute with a person associated with someone in the premises: Sentencing Advisory Council, Aggravated Burglary Current Sentencing Practices (June 2011) 30.

1. In relation to the sentence imposed on charge 8 for recklessly causing serious injury, counsel relied on the statistics to isolate the factors which are generally most determinative in the sentencing decision.  Of the most statistically significant factors, only one (use of a weapon) was said to be present in this case.  It was submitted that an analysis of the statistics suggests that there is ‘nothing in the nature of the present offence to warrant a sentence at the extreme end of sentencing practice’.[6]

   [6]Applicant’s Additional Submissions, 4 September 2012, [22].

The respondent’s submissions

1. As regards manifest excess, the Crown’s submission was commendably brief.  It was submitted that the sentencing judge had taken into account of all the matters put in mitigation, as could be seen from the fact that he had referred to them, in terms, in his sentencing remarks.  However, as his Honour correctly observed, matters personal to the applicant had to be balanced against all relevant sentencing objectives in a case such as this.  The offences that gave rise to charges 7 and 8 were particularly serious.  They were committed by an offender with an extensive criminal history, including offences of violence. 

1. It was readily acknowledged that the sentences imposed in this case were above the median.  It was submitted, however, that they did not fall outside the range of sentences reasonably available to his Honour in a case such as this.  That submission was maintained despite what the sentencing statistics relied upon by the applicant were said to demonstrate. 

Conclusion

1. In our view, the Crown’s submissions should be accepted.  The offences that gave rise to charges 7 and 8 were particularly serious, involving as they did an armed attack upon an innocent victim in his own home.  An aggravating feature of the offending was the tying up of the victim leaving him seriously injured, defenceless and fearful.  He sustained significant injuries that required a period of two weeks’ hospitalisation.  Although he declined to file a victim impact statement, the experience must surely have been traumatic. 

1. When one couples the objective gravity of this offending with the applicant’s previous criminal history, the individual sentences imposed on these charges can be seen as entirely within range.[7]  The same can be said of the total effective sentence, and the non-parole period, each of which reflects, as well, additional and unrelated offending. 

   [7]In reaching that conclusion, we have had regard to the appendices indicating the sentences imposed for recklessly causing serious injury in Ashdown v The Queen [2011] VSCA 408, appendices A-B.

1. There is nothing of substance in the applicant’s submissions regarding current sentencing practices.  While the sentences imposed on charges 7 and 8 were significantly above the median for aggravated burglary and recklessly causing serious injury respectively, that, on its own, says little.  The offending itself was of a character that called for punishment well above the median for these offences. 

1. In relation to the offence of recklessly causing serious injury, the applicant’s attack involved the use of a potentially deadly weapon to inflict serious head injuries, including a fractured skull.  His victim was hospitalised for a substantial period.  The sentencing statistics upon which the applicant relies highlight the importance of these features as aggravating the offending in question.[8]  Contrary to the applicant’s submission, they do not demonstrate error in the sentence imposed on charge 8.  There was every justification, in the particular circumstances of this case, for imposing a sentence well above the median for this offence. 

   [8]Sentencing Advisory Council, Causing Serious Injury Recklessly and Intentionally – Current Sentencing Practices (September 2011) 34.

1. The applicant submitted, perhaps with greater force, that his sentence of five years and six months’ imprisonment on the aggravated burglary charge was excessive.  As his submission also acknowledged, however, statistics are usually of limited utility in dealing with an offence such as aggravated burglary.  The utility of these statistics is reduced still further given that the applicant in this case was sentenced not just for the aggravated burglary, but also for recklessly causing serious injury and a number of other offences, some of them quite serious.  It must also be remembered that he fell to be sentenced as a man with an already lengthy criminal record.  Both the total effective sentence of seven years and six months’ imprisonment and the non-parole period of five years had to reflect all of these considerations.  And they did. 

1. Current sentencing practices are merely one factor to which sentencing judges must have regard.  His Honour was also obliged to take into account the very significant maximum penalties which the legislature has set in relation to aggravated burglary and recklessly causing serious injury. 

1. Moreover, in the particular circumstances of this case, even if the sentence on the aggravated burglary charge were to be reduced, the applicant would still receive a lengthy term of imprisonment on the charge of recklessly causing serious injury.  The effect of the likely orders for cumulation on any resentencing would mean that the total effective sentence, even if it were structured differently, would not be materially less than that imposed by the sentencing judge. 

1. For these reasons, leave to appeal should be refused. 

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