Zogheib v The Queen
[2015] VSCA 334
•11 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0056
| MUSTAFA ZOGHEIB | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, SANTAMARIA and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 November 2015 |
| DATE OF JUDGMENT: | 11 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 334 |
| JUDGMENT APPEALED FROM: | DPP v Zogheib (Supreme Court of Victoria, Justice Beale, 21 October 2014 (conviction)) |
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CRIMINAL LAW – Appeal against sentence – Reckless conduct endangering life – Prohibited person in possession of firearm – Appellant chased victims’ car – Appellant fired gunshots at victims’ car – Guilty plea – Remorse – Strong prosecution case – Whether judge impermissibly reduced weight given to the guilty pleas based on strength of the prosecution case – Whether judge failed to have regard to the principle of totality – Concurrency – Whether sentence manifestly excessive – Serious offending by appellant – Denunciation – Specific and general deterrence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C Boston, with Mr H Venice | Melasecca, Kelly & Zayler |
| For the Crown | Ms F Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Kaye JA. I agree with his Honour that the appeal against sentence should be dismissed and, subject to what follows, I do so for the reasons which his Honour has given.
As Kaye JA has pointed out, in addressing the ground of manifest excess both the appellant and the respondent relied on what were said to be comparable cases. The experience of this Court — and of other intermediate appellate courts — is that arguments about manifest excess invariably rely on such comparisons. Provided that the cases relied on are carefully selected, and can be shown to be relevantly comparable or instructively different,[1] such reliance is entirely appropriate.
[1]Cf DPP v KMD [2015] VSCA 255 [67]–[70].
A submission of manifest excess invokes the principle of consistency, which expresses the requirement of the rule of law that like cases be treated alike.[2] As the High Court has made clear, consistency does not require numerical equivalence.[3] This must be so, given that the very concept of sentencing ‘range’ acknowledges that reasonable minds may differ as to the appropriate sentence in a particular case.[4]
[2]Green v The Queen (2011) 244 CLR 462, 472–3 [28].
[3]Hili v The Queen (2010) 242 CLR 520, 535 [48] (‘Hili’).
[4]Norbis v Norbis (1986) 161 CLR 513, 518; Young, Dickensen and West v The Queen (1989) 45 A Crim R 147, 151.
Comparable cases provide guidance as to the applicable sentencing range.[5] They inform the sentencing court, and the appeal court, of current sentencing practice with respect to cases in the relevant category of seriousness.[6] As decisions of this Court illustrate, comparable cases can be indispensable, whether in demonstrating that a sentence is manifestly excessive[7] or manifestly inadequate,[8] or in showing that the sentence under appeal was within range.[9]
[5]Hili v The Queen (2010) 242 CLR 520, 535 [54]; Barbaro v The Queen (2014) 253 CLR 58, 74 [41].
[6]Anderson v The Queen [2013] VSCA 138 [22].
[7]See, for example, Winch v The Queen (2010) 27 VR 658, 663 [24]; Hasan v The Queen (2010) 31 VR 28, 41 [55]–[56]; Gorladenchearau v The Queen [2011] VSCA 432 [52]–[54], [59]; Reid v The Queen [2014] VSCA 145 [3]–[6]; Powell v The Queen [2015] VSCA 93 [25].
[8]See, for example, DPP v CPD (2009) 22 CR 533, 548–9 [63]–[65]; DPP v Oksuz [2015] VSCA 316 [95], [101]–[106].
[9]Nash v The Queen (2013) 40 VR 134, 136 [7], 139 [17]; Nguyen v The Queen [2015] VSCA 76 [67].
The present case falls into the latter category. The cases referred to demonstrate that the sentence of five years imposed for reckless conduct endangering life was well within the range reasonably open in the circumstances of the case.
In The Queen v Bradley,[10] the offender had fired five shots in the direction of a police officer, who had said he wanted to talk to the offender. When another officer fired at him, the offender shot once in that officer’s direction. He was convicted after a trial and was sentenced to seven years’ imprisonment on the charge of reckless conduct endangering life, which the sentencing judge described as being ‘at a very high level of criminality for that offence’. When for other reasons the offender fell to be resentenced, the Court reimposed the sentence of seven years, describing it as ‘entirely appropriate’.
[10][2010] VSCA 70.
In DPP v Arvanitidis,[11] the relevant conduct was the firing of a single shot at a police officer. The Court allowed an appeal by the Director of Public Prosecutions and increased the sentence on the charge of reckless conduct endangering life from three years to four years’ imprisonment. The offender had pleaded guilty. At that time, the discount for double jeopardy was still applicable.
[11](2008) 202 A Crim R 300 (‘Arvanitidis’).
The offending in the present case, as described by Kaye JA, was considerably more serious than that in Arvanitidis. The repeated firing of the gun while the car was travelling at very high speed was extremely dangerous and involved the highest degree of recklessness.
In R v Sahari,[12] the offender pleaded guilty to a number of offences of violence, including reckless conduct endangering life. On the latter charge, he was sentenced to five years’ imprisonment. The relevant conduct involved firing two shots from a hand gun — one through the front door, the other through a window — of premises occupied by a person with whom the offender was in dispute. The complaint of manifest excess was rejected, notwithstanding that the offender had been entitled to a sentencing discount for an undertaking to give evidence against his co-offender. Kellam JA (with whom Maxwell P and Ashley JA agreed) described the relevant conduct as
a particularly grave form of this offence. The firing of two shots from the hand gun through the door and window of the complainant’s premises, in circumstances where the appellant knew that the complainant was in the near vicinity, constituted a high level of recklessness indeed. Not surprisingly, these events caused the complainant great emotional upset and trauma.[13]
[12](2007) 17 VR 269 (‘Sahari’).
[13]Ibid 279 [26].
On the appeal, as before the sentencing judge, the appellant relied on the decision of Lasry J in R v Chaouk.[14] In that case, the offender (who had pleaded not guilty) was sentenced to four years’ imprisonment on a charge of reckless conduct endangering life. In contrast to the present case, however, the charge rested on a single, brief incident, in which shots were fired at a car which had three occupants.
[14][2013] VSC 362 (‘Chaouk’).
In my opinion, the conduct for which the appellant was sentenced was materially worse than that in either Sahari or Chaouk, because the endangerment of the victims was at such a high level and for such a long period.
SANTAMARIA JA:
For the reasons given by Kaye JA, I agree that the appeal should be dismissed.
KAYE JA:
The appellant pleaded guilty, on one indictment, to one charge of reckless conduct endangering life on 19 August 2013, one charge of being a prohibited person in possession of a firearm on 19 August 2013, and one charge of knowingly possessing counterfeit money on 20 August 2013. Subsequently, he pleaded guilty, on a second indictment, to a further charge of being a prohibited person in possession of a firearm on 10 August 2013. Following a plea, the appellant was sentenced[15] as follows:
[15]R v Zogheib [2015] VSC 17 (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| Indictment C1309390.6 | ||||
| 1 | Prohibited person in possession of firearm [Firearms Act 1996 s 5(1)] | 1200 penalty units or 10y [Firearms Act 1996 s 5(1)] | 1y | 1y |
| Indictment C1309390.1 | ||||
| 1 | Reckless conduct endangering life [Crimes Act 1958 s 22] | 10y [Crimes Act 1958 s 22] | 5y | Base sentence |
| 2 | Prohibited person in possession of firearm | 1200 penalty units or 10 years | 1y | N/A |
| 3 | Knowingly possess counterfeit money [Crimes (Currency) Act 1981 (Cth) s 9(1)(a)] | 10y [Crimes (Currency) Act 1981 (Cth) s 9(3)(a)] | 3m | To commence upon expiration of non-parole period |
| Total Effective Sentence: | 6y | |||
| Non-Parole Period: | 4y 3m | |||
| Pre-sentence Detention Declared: | 517 days | |||
| 6AAA Statement: | 7y with a non-parole period of 5y | |||
| Other orders: Compensation order ($1,398.51). Confiscation order. Forensic order. | ||||
The co-offender in respect of the charges relating to the events of 19 August 2013, Ihsan El-Chakik, was convicted by the jury on his trial of four charges of reckless conduct endangering life. He was sentenced[16] as follows:
[16]Ibid.
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Reckless conduct endangering life [Crimes Act 1958 s 22] | 10y [Crimes Act 1958 s 22] | 4y 6m | 3m |
| 2 | Reckless conduct endangering life | 10y | 4y 6m | 3m |
| 3 | Reckless conduct endangering life | 10y | 5y | Base sentence |
| 4 | Reckless conduct endangering life | 10y | 5y | 3m |
| Total Effective Sentence: | 5y 9m | |||
| Non-Parole Period: | 3y 9m | |||
| Pre-sentence Detention Declared: | 321 days | |||
| 6AAA Statement: | N/A | |||
| Other orders: Compensation order ($1,398.51). Forensic order. | ||||
Grounds of appeal
On 23 June 2015, Weinberg JA granted leave to the appellant to appeal on the following grounds:
(1)The sentencing judge erred in reducing the sentencing discount for the appellant’s guilty pleas on account of the strength of the prosecution case, in circumstances where his Honour accepted that the appellant was remorseful for his conduct.
(3)The sentencing judge erred in failing to have regard to the principle of totality in ordering that the whole of the sentence imposed on the first firearms charge (relating to the events of 10 August 2013) be served cumulatively upon the base sentence.
(4)The sentences imposed upon the appellant are manifestly excessive, namely:
(a)the five year sentence imposed upon the charge of reckless conduct endangering life; and
(b)the order that the entirety of the one year sentence imposed on the first firearms charge be served cumulatively upon the base sentence.
Weinberg JA refused the appellant leave in respect of grounds 2 and 4(c). The appellant has not elected to renew either of those grounds of appeal.
Circumstances of the offending
The charge on the first indictment related to events which occurred on 10 August 2013. Those events were also the background to the separate incidents that took place on 19 August, which gave rise to the charges on the second indictment.
On 10 August 2013, the appellant was residing at his home, a converted garage, with his girlfriend. The appellant’s girlfriend had been in a relationship with a man (ZB), a member of a well-known criminal ‘B’ family in the western suburbs.
At about 4.40 am on 10 August, the appellant armed himself with a .32 calibre semi-automatic handgun. The appellant was a prohibited person under the Firearms Act 1996, as he was then the subject of two community corrections orders, that had been imposed in February 2013 and July 2013 respectively, for indictable offences. His possession of the handgun constituted an offence against s 5(1) of the Firearms Act 1996.
Having taken possession of the firearm, the appellant left the garage and walked to a Honda sedan that was parked in the driveway of his home. ZB, along with two other members of his family, and an unidentified male, were then occupying a Holden station wagon, which had sat off the appellant’s premises a short time previously. As the appellant entered his Honda vehicle, the station wagon drove up and stopped very close behind his vehicle.
Thereupon the appellant got out of his vehicle. The four men hurriedly alighted from the station wagon and confronted the appellant. At least one of them was armed with a handgun. The appellant took out his handgun, and retreated to a corner of his garage. MB, another member of the B family, chased him there. On seeing the appellant’s gun, MB made a hasty retreat and returned to the station wagon. While the appellant was near the front door of his residence, he fired a shot in the direction of the driver’s side of the station wagon. He then moved to the corner of the garage. There he sighted ZB, who was crouching behind the open driver’s door of the Honda vehicle. The appellant fired a second shot in that direction. The appellant then retreated to the front door of the garage. The four men got into the station wagon and drove past the appellant’s house. As they did so, the appellant fired two more shots in the direction of the vehicle.
The appellant was charged with five counts of reckless conduct endangering life arising out of those events. At his trial, the appellant gave evidence in which he maintained that he fired all four shots in self-defence. The jury acquitted him on all counts. In his evidence, the appellant stated that, on 7 August (three days before the relevant incident), he had received a series of threatening phone calls from ZB. In particular, ZB threatened to kill the appellant, rape his mother, and rape the appellant’s girlfriend.
As I stated, those events formed the background to the events of 19 August, which gave rise to the three charges on the second indictment to which the appellant pleaded guilty. On that evening, the appellant was again at his residence. He saw, on the CCTV monitor of his converted garage, a white Jeep Patriot driving back and forth past his home. He thought that it might be members of the B family.
In fact, the vehicle, sighted by the appellant, was driven by a person (J) who had no connection or acquaintance with the appellant or the B family at all. At 1.15 am, J drove his Jeep Patriot into the street where the appellant lived, to meet with a female friend (E). J was not familiar with the area. As a result, he drove past the appellant’s residence a number of times looking for E’s address. Ultimately, J located the address occupied by E, and they left together in J’s vehicle.
In the meantime, the appellant became suspicious that the jeep was driven by members of the B family again, or persons associated with them. He went outside his premises to investigate, accompanied by two male associates who were visiting him. Shortly thereafter, the appellant’s co-offender, El-Chakik, arrived in a Holden utility.
At that time, J again entered the appellant’s street. He approached the location where the appellant, El-Chakik and another person were standing in the roadway, blocking his path. As J’s vehicle approached the group, it was surrounded by the appellant, El-Chakik and the other person, who were yelling at J and E to get out of the vehicle. J managed to drive past them. He drove towards E’s home address, where he stopped on the street. E used her mobile telephone to call ‘triple 0’.
The appellant and El-Chakik then entered El-Chakik’s Holden utility. El-Chakik was driving and the appellant was in the passenger seat. El-Chakik accelerated towards J’s vehicle, and stopped with his vehicle diagonally facing towards the driver’s side door of J’s vehicle, preventing it from moving forward. El-Chakik and the appellant yelled at J and E, demanding they get out of the car. The appellant produced his handgun, and pointed it at J and E, placing both of them in immediate fear that they were going to be shot.
J then quickly reversed his vehicle and drove off, with El-Chakik and the appellant pursuing them at a fast speed. The jeep turned into the Melton Highway with El-Chakik and the appellant chasing them at a very high speed. By then, J was driving at speeds in excess of 140 kph, trying to escape the pursuing utility. While chasing J’s vehicle, the appellant fired at least three shots at it from his handgun, one of which shattered the rear windscreen of the jeep. Both J and E were, understandably, in real fear of their lives. E was cowering in the front seat in fear that she would be shot.
At some stages, the vehicles were driving parallel to each other, as El-Chakik managed to match J’s speed, and attempted to run him off the road. When the utility drew alongside the jeep, the appellant aimed the firearm directly at J. Showing remarkable resource, J slammed on the brakes of the jeep, and forced the white utility to continue past it. That gave J the opportunity to do a U-turn over the median strip, and escape. He drove to a nearby residential area, where he and E took refuge in the driveway of a property.
Having lost contact with the jeep, the appellant and El-Chakik then returned to the appellant’s home. The appellant alighted from the Holden utility, and El-Chakik departed the area.
On 20 August, investigators executed a search warrant at the appellant’s premises. There they seized seven counterfeit $50 notes, which were of a very high quality.
The appellant was originally charged with attempted murder arising out of the events of 19 August 2013. A contested committal proceeding took place on 26 February 2014, at which J and E were both cross-examined. Negotiations took place between the prosecution and the defence after the committal proceedings. Subsequently, the appellant pleaded guilty to the reconstituted charges on 12 September 2014. The sentencing judge accepted that the appellant pleaded guilty in respect of those charges at the first reasonable opportunity.
Both J and E provided victim impact statements. Understandably, they both had been seriously traumatised by the events of 19 August 2014. A psychologist consulted by J has diagnosed that he suffers from chronic post-traumatic stress, with recurrent flashbacks, as a result of those events. On one occasion, on hearing a motor vehicle backfire as he was walking along a suburban street, J ‘flipped out’ and ended up in the psychiatric ward of a hospital overnight. He has experienced difficulty sleeping and has frequent nightmares. J is undergoing intensive counselling in respect of his condition.
E has also undergone counselling. A psychologist report notes that she experiences symptoms of post-traumatic stress disorder. She also has difficulty sleeping and experiences nightmares.
Previous convictions
The appellant has 25 previous convictions resulting from four court appearances in the Magistrates’ Court between 1999 and 2013. They include convictions for possession of drugs, dishonesty offences and weapons offences. In particular, on 12 February 2013, the appellant was convicted at Sunshine Magistrates’ Court of (among other charges) two charges of possessing a prohibited weapon without exemption or approval and one charge of possessing cartridge ammunition without a licence or permit. On 4 July 2013, at the Sunshine Magistrates’ Court, the appellant was convicted (among other offences) of possessing a controlled weapon without excuse. On 10 September 2013, at the Sunshine Magistrates’ Court, the appellant was convicted and fined for possessing a controlled weapon without excuse.
The appellant’s personal history and circumstances
The appellant was born in March 1982. He completed Year 11 education, and commenced an apprenticeship as an electrician. However, he interrupted that apprenticeship, in order to take care of his nephew, Ali, when the child was three months old. The appellant undertook that responsibility for two years, because Ali’s father (the appellant’s brother) was in jail, and Ali’s mother was not a suitable carer. During that time, the appellant obtained some employment in department stores.
The appellant commenced to abuse alcohol and drugs from the young age of 15 years. He was able to reduce his consumption of those substances while caring for Ali. Eventually he resumed employment, in the construction industry, which he undertook for about ten years. He gained advanced riggers’ tickets. He was last in full-time employment in 2012.
At the age of 18 years, the appellant commenced a relationship that lasted for 13 years. He was married, and there were two children of the marriage. The relationship broke down in 2011. The appellant’s escalating consumption of alcohol and his increasing drug abuse contributed to the failure of the relationship. By the end of 2012, the appellant was consuming methamphetamine daily until he was remanded in custody in August 2013.
In early 2013, the appellant commenced a relationship with his girlfriend. The relationship has continued subsequent to the appellant being in custody, and they have a child, who was born in May 2014.
On his plea, counsel for the appellant relied on a report by a psychologist, Dr Michelle Wauchope, dated 3 June 2014. The report set out, in some detail, the appellant’s history of drug abuse. Formal testing on the Beck Depression Inventory indicated that the appellant was classified in the ‘severe range’ of depression. Dr Wauchope considered that the appellant had suffered from severe long term depression and anxiety, and that those conditions persisted. Dr Wauchope was of the view that the appellant’s substance abuse, and the effects of mixing substances while suffering from depression and anxiety, were relevant to his offending, by affecting the appellant’s reasoning and his problem solving abilities. She considered that it was positive that he had been able to abstain from using those substances in the past. Dr Wauchope expressed concern that continued incarceration would have an adverse effect on the appellant’s mental health, which might deteriorate, unless he were to receive the appropriate counselling and medication that he required.
The plea
It was put on behalf of the appellant that he had been in a state of considerable fear arising out of the events of 10 August, and that that fear caused him to react in the manner in which he did on 19 August. The appellant had expressed remorse for his conduct, and counsel tendered a letter written by the appellant to that effect while he was in custody. It was pointed out that the appellant had no previous convictions for violence. He was not by nature a violent person. The circumstances of the case were quite unusual, and accordingly specific deterrence was not important in the case of the appellant.
Counsel also relied on the appellant’s plea. He submitted that it was an early plea, with remorse, and that it had genuine utilitarian value. The appellant had the support of members of his family, including his parents and sister, and his partner. The appellant had taken genuine steps towards his rehabilitation, and a number of certificates were tendered indicating the courses that he had completed while in custody. The appellant’s anxiety was exacerbated by his fear that, while in custody, he might be in danger from members of the B family or their associates. It was also submitted that the possession by the appellant of the counterfeit money charge fell within the lowest category of offending for that type, because there was no indication that the appellant was manufacturing the currency or that he possessed it for sale.
In response, it was pointed out that the appellant had previous convictions for weapons offences and possessing counterfeit money. At the time of the offending, he was on two separate community corrections orders imposed in the Magistrates’ Court, and three sets of bail. The fact that he was on bail was relevant to s 16(3)(c) of the Sentencing Act 1991, which provided that every term of imprisonment, imposed on a person for an offence committed by a person while released on bail in relation to other offences, must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
It was submitted by the respondent that the offending on the evening of 19 August 2013 was a particularly serious example of the offence of reckless conduct endangering life. However, it was particularly so in light of the fact that the appellant was at the time using multiple substances, and was suffering from depression and extreme anxiety.
The judge’s sentencing remarks
The sentencing judge set out, in detail, the circumstances of the offence, the impact on the victims, the appellant’s antecedents, and details of the appellant’s personal history.
The judge noted that the appellant had pleaded guilty to all the offences, and accepted that the plea, in relation to the events of 19 and 20 August 2013, was entered at the first reasonable opportunity. Relevantly for the purposes of the first ground of appeal, in paragraph 59 of his reasons, the judge stated: [17]
Your plea of guilty will attract a significant discount because it is evidence of remorse on your part and it spared the victims a separate trial and the community has been saved the time and expense of a trial. But I do not overlook the fact that the prosecution had a very strong case against you on these charges.
[17]Reasons [59].
The judge then observed that he considered that the appellant had reasonable prospects of rehabilitation. He stated that the appellant’s conduct on 19 August called for strong denunciation, notwithstanding that it was instigated by the appellant’s fear of the B family. The judge stated: [18]
Whilst that fear somewhat reduces your moral culpability, I consider that the charge of reckless conduct endangering life falls at the upper end of the spectrum of seriousness for such an offence. It involved the deliberate discharge of a firearm three times in the course of a high speed chase. Two lives were put at risk. I find that you must have appreciated, in the circumstances in which you fired those shots, that there was a grave risk that the occupants of the jeep might be killed, either by being struck with a bullet or crashing their car. You and others must be deterred from resorting to such violence.
[18]Reasons [61].
The judge accepted that the other charges fell at the lower end of the spectrum of seriousness for such offences. Nevertheless, he observed that the appellant’s conduct in arming himself with a firearm, rather than contacting the police, was a significant offence. The judge did not accept the appellant’s explanation as to the possession of the counterfeit money, namely, that it had been put into the pot by another player during a card game at his home. The judge considered that the only appropriate sentence for the Commonwealth charge was a sentence of imprisonment.
Ground 1
Ground 1 of the appeal is based on the passage in paragraph 59 of the sentencing remarks of the judge, in which his Honour, in discussing the relevance of the appellant’s plea of guilty, referred to the fact that the prosecution had a very strong case against the appellant.
In support of the ground, it was submitted that as the judge had found positively in favour of the appellant that the plea of guilty was accompanied by remorse, his Honour was not entitled to take into account the strength of the prosecution case in determining the weight that should be accorded to the subjective aspects of the guilty plea as a mitigating circumstance. Counsel contended that the decision of the court in Phillips v The Queen[19] is authority for the proposition that once a sentencing judge is satisfied that a plea of guilty is evidence of, or accompanied by, remorse on behalf of the offender, the sentencing judge is not entitled to take into account the strength of the prosecution case in determining the weight to be attributed to the plea of guilty. It was further submitted that, while the s 6AAA sentencing declaration does not, of itself, provide a basis for a specific appellable error, nevertheless it supports the proposition that the judge, in the passage in the sentencing remarks relied on, impermissibly took into account the strength of the prosecution case as a factor that reduced the weight he gave to the guilty pleas by the appellant.
[19](2012) 37 VR 594 (‘Phillips’).
In Phillips,[20] the court gave detailed consideration to the matters that should inform the determination, by a sentencing judge, of the extent of the ‘discount’ to be given for a plea of guilty. In their joint judgment, Redlich JA and Curtain AJA (with whom Maxwell P agreed) held that the strength of the prosecution case may be relevant to the determination of the subjective elements relating to a plea of guilty, namely, the offender’s remorse, willingness to facilitate the course of justice and acceptance of responsibility. On the other hand, the strength (or otherwise) of the prosecution case is not relevant to, and should not affect, the weight to be accorded to the utilitarian benefits of the plea, since, logically, it does not bear upon the objective benefits of the plea.[21] Their Honours then gave consideration as to how a sentencing judge might take into account the strength of the prosecution case when considering the subjective aspects of a plea of guilty. In a passage relied on by the appellant, they said:
[20]Ibid.
[21]Ibid 604 [36], 614 [70]; see also 600 [19] (Nettle JA), 620 [92] (Harper JA).
The strength of the Crown case may cast doubt on the extent of an offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice and so result in a lesser discount than one would otherwise allow. This proposition is unexceptionable. However, care must be taken when considering whether the strength of the Crown case can support an inference that these subjective criteria played little or no role in the decision to plead guilty. That is because, whatever the strength of the Crown case, an offender may be truly remorseful and accepting of responsibility. But, as was stated in … Pajic, a Crown case that is obviously weak may, if the context permits, provide cogent evidence of the existence of the subjective criteria.
The state of the evidence on the plea must be such as to permit a process of inferential reasoning that the subjective criteria are only present to a limited extent. Hence in Pajic it was said that contextual facts must exist before the strength of the Crown case can tend to support the conclusion that these subjective criteria are present to only a limited extent or not at all. It will always be a question of fact whether the contextual evidence, including the strength of the Crown case, tends to show that the plea was truly motivated by remorse and a willingness to facilitate the course of justice or that it was motivated by a recognition of the inevitable. In the joint judgment in Chalmers v R this Court said: [22]
Where there is a dispute as to whether a plea of guilty, or an offer to plead guilty, is demonstrative of the offender’s remorse, the context in which the plea or offer is proffered will be relevant. Although the fact that the prosecution case is strong does not by itself provide a basis for concluding that a plea of guilty is not attended by genuine remorse, consideration of the context may reveal that the dominant reason for the plea was not remorse but a recognition of the strength of the prosecution case. Similar considerations may apply where an offender offers to plead guilty to a lesser offence than that for which he or she is being tried and is ultimately convicted of the lesser offence.
In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court. Where there is contextual evidence, such as a record of interview, medical reports or other evidence of the offender’s attitude to his offending which tends to indicate that the existence of these subjective matters is limited, the strength of the Crown case may be considered in conjunction with these facts to support the adverse inference that the extent of the offender’s remorse or willingness to facilitate the course of justice is limited or non-existent. If there is an absence of any evidence concerning these subjective criteria, the sentencing judge may take into account the strength of the Crown case as bearing upon the extent of the offender’s remorse or willingness to facilitate the course of justice. But where there is uncontradicted positive evidence, or an assertion from the Bar table which is accepted, that such subjective criteria are present, the weight of the Crown case will not ordinarily inform the question whether the offender is remorseful, willing to facilitate the course of justice or accepting of responsibility. Hence, Pajic, and the cases that have applied that reasoning, speak of the need to have regard to the complexity of contextual evidence on the plea before an adverse inference can be drawn against the offender.
[22]Ibid 614-15 [70]–[72] (citations omitted).
Having referred to those passages, counsel for the appellant contended that the reference by the judge, to the strength of the Crown case, imported an irrelevant consideration into the exercise of the sentencing discretion. Counsel noted that the judge found that the appellant’s plea was accompanied by remorse. That finding was based on contextual evidence, including the early entry of the plea of guilty, the letter written by the appellant expressing his remorse, and the consent given by the appellant to pay compensation sought by the victims. Counsel contended that remorse having been found to exist, on the basis of those contextual circumstances, there was no basis for the judge to reduce or temper the weight to be given to the plea of guilty by reason of the strength of the prosecution case.
In response, counsel for the respondent submitted that, on its proper construction, the passages of the judge’s reasons, relied on by the appellant, meant no more than that the judge, while according full weight to the subjective aspects of the plea of guilty made by the appellant, nevertheless observed that this is not a case in which the appellant’s plea, and his remorse, should be attributed additional weight, to which it might have been entitled if the plea was made in the face of a weak prosecution case. In support of that proposition, counsel referred, particularly, to the passage in the joint judgment in Phillips, in which Redlich JA and Curtain AJA noted that a Crown case that is obviously weak may provide additional weight to the existence and extent of the subjective criteria evidenced by the plea of guilty.
The submissions raised by counsel, in respect of ground 1, raise two questions, namely:
(1)Whether the judge did reduce or temper the weight that he attributed to the subjective factors contained in the plea, and in particular the appellant’s remorse, by reason of the strength of the prosecution case.
(2)If so, whether the judge impermissibly took into account an irrelevant factor in determining the weight to be accorded to the subjective elements of the plea of guilty.
In considering the first question, it is important to bear in mind that, in this State, sentences are delivered orally in the second person, and are directed specifically to the offender who stands for sentence. Ordinarily, sentencing judges strive to express their reasons for sentence in terms that will be understood by the offender, and by other lay persons in court. In such a process, a degree of brevity, and, on occasions, of imprecision of expression, does intrude, because of the nature of the sentencing process. For that reason, it is important to construe sentencing remarks by a judge in their proper context, and not with an eye that is assiduous to detect error in the sentencing process. In that respect, the observations of Tadgell JA in his dissenting judgment in R v Groom,[23] are apposite, namely, that a ‘… judge’s sentencing remarks are not to be construed as if contained in a statute, a will or a deed’.[24]
[23][1999] 2 VR 159.
[24]Ibid 160 [3].
In my view, taken in their proper context, the part of the judge’s sentencing remarks, relied on in respect of ground 1, are to the effect contended for on behalf of the respondent.
In the course of a detailed and forceful plea, counsel for the appellant emphasised the fact and degree of remorse felt by the appellant in respect of the distress that his actions had occasioned to J and E. In an earlier passage in his reasons, the judge, having noted that the appellant’s counsel had tendered a letter in which the appellant had expressed his remorse, stated:
I accept that you are remorseful and your plea of guilty is also evidence of that.[25]
[25]Reasons [23].
The judge then proceeded to consider other matters that were relevant to sentence. He then returned to the question of the appellant’s plea of guilty. The passage of the sentencing remarks, that is relied on in support of ground 1, commenced with the recognition by the judge that the appellant’s plea of guilty would attract a ‘significant discount’, because it was evidence of remorse on his part. The judge then noted that the plea would also attract a discount, because it spared the victims a separate trial and the community had been saved the time and expense of a trial.
Construed in that context, in my view the short passage that followed, and that is now relied on — ‘but I do not overlook the fact that the prosecution had a very strong case against you on these charges’ — was no more than an observation by the judge that, while the plea would attract a significant ‘discount’ because it was evidence of, and accompanied by, remorse on the part of the appellant, it would not be given greater weight than that which would have been afforded to it if the plea was made in the face of a weak prosecution case.
In support of her submissions, counsel for the appellant relied on the declaration by the judge under s 6AAA of the Sentencing Act as to the sentence that he would have imposed on the appellant but for the pleas of guilty. It was submitted that the amount of ‘discount’, revealed by that declaration, supported the conclusion that the judge must have impermissibly taken into account the strength of the prosecution case against the appellant in diminishing the weight to be accorded the subjective aspects of the pleas of guilty.
Counsel did not, of course, rely on the s 6AAA declaration as a ground of specific error, in view of the consistent line of authorities which has established that the declaration under s 6AAA may not, of itself, constitute the basis of a specific sentencing error, although, in an appropriate case, it might be a relevant consideration in respect of a ground of appeal based on the manifest excess of the sentence.[26]
[26]See for example Scerri v The Queen (2010) 206 A Crim R 1, 6 (Maxwell P, Buchanan JA); R v Burke [2009] VSCA 60 [30]–[31] (Maxwell P, Redlich JA, Vickery AJA); Saab v The Queen [2012] VSCA 165, [58] (Buchanan, Weinberg and Mandie JJA).
That principle is based on two considerations. First, any argument, based on the s 6AAA declaration, would only be relevant to the weight accorded by the judge to the plea of guilty, which, of itself, is not recognised as a ground of specific sentencing error.[27] Secondly, and for present purposes significantly, the formulation of a declaration by a sentencing judge under s 6AAA involves a substantial degree of artificiality. While such a declaration is designed to make clear to the person, standing for sentence, that the plea of guilty has been accorded appropriate weight, and has resulted in a lower sentence, the assessment of the sentence, that would have been imposed but for the plea of guilty, is entirely hypothetical. In addition, it is based on a process of reasoning that is otherwise antithetical to the proper application of sentencing principles in this State, by which a number of factors, some interrelated, are synthesised by the judge in the exercise of the sentencing discretion.
[27]See for example Scerri v The Queen (2010) 206 A Crim R 1, 6; Pesa v The Queen [2007] VSCA 109 [11] (Maxwell ACJ, Hansen JA); DPP v Terrick (2009) 24 VR 457, 459-60 (Maxwell P, Redlich JA, Robson AJA).
The artificiality, and difficulty, involved in the formulation of the declaration under s 6AAA has been recognised in a significant number of decisions of this Court.[28] In Saab v The Queen,[29] the court rejected the proposition that a s 6AAA statement might demonstrate sentencing error in the following terms: [30]
We think that the line of authority holding that a section 6AAA statement is generally not to be taken to exhibit error should be followed.
The principal obstacle to a determination that the notional sentence stated pursuant to section 6AAA can reveal specific error lies in the fact that sentences are the product of a process of instinctive synthesis. Judges do not fix sentences by adding to and subtracting from a starting point periods of time they attribute to particular sentencing factors. In order to comply with section 6AAA, a sentencing judge is required to guess the part played by one of a number of conflicting and contradictory elements in a synthesis of all the elements and ascribe a number to that element.
[28]See, for example, Giordano v The Queen [2010] VSCA 101 [45] (Mandie JA); Samac v The Queen [2011] VSCA 171 [88]–[89] (Ashley JA); SD v The Queen (2013) 39 VR 487, 502 [63] (Ashley, Redlich and Priest JJA); DPP v Jones (2013) 40 VR 267, 293 [110] (Redlich and Priest JJA).
[29][2012] VSCA 165.
[30]Ibid [58]–[59] (Buchanan, Weinberg and Mandie JJA).
It is for those reasons that reliance on the s 6AAA declaration, in support of ground 1, is of limited, if any, assistance. In the present case, the declaration would have been affected by the type of artificiality referred to in the authorities. For example, the pleas of guilty by the appellant were necessarily intertwined with other sentencing considerations, such as remorse and the appellant’s prospects for rehabilitation. Even if those factors could somehow be disentangled from the guilty pleas, nevertheless the declaration, given its limitations, provides no adequate basis upon which to determine that the judge reduced the weight to be accorded to the subjective elements of the guilty plea by reason of the strength of the prosecution case. Accordingly, I do not consider that the s 6AAA declaration is capable of assisting or supporting the appellant’s submissions in support of ground 1.
For those reasons, I am not persuaded that the judge reduced or tempered the weight accorded to the subjective benefits of the plea of guilty, by reason of the strength of the prosecution case.
In this context, I note that the report provided by the judge to this Court pursuant to s 316 of the Criminal Procedure Act 2008 and rule 2.42 of Chapter 6 of the Supreme Court Rules, supports the above conclusion as to the meaning of the passage in his Honour’s reasons that the appellant relies on. In the report, the judge stated that he only wished to comment on the meaning of the last sentence in the paragraph in his sentencing remarks, that I have set out in paragraph 46 above. His Honour stated:
I was satisfied that Mr Zogheib was remorseful but, as to the degree of remorse, the strength of the Crown case was, in my opinion, a relevant consideration. If he had pleaded guilty in the context of a weak Crown case, I would have been satisfied of a greater degree of remorse on his part and would have increased the discount for his plea of guilty.
The purpose, and limitations, of a judge’s report have been considered in a number of authorities, most of which related to the use of such a report on an appeal against conviction.[31] The authorities, relating to the use of the judge’s report in an appeal against sentence, establish the principle that, while the judge’s report may be taken into account in informing the Court of Appeal of matters the judge did, or did not, take into account in passing sentence, nevertheless it is not the role of the report to construe the words used by the judge in passing sentence, or to inform the Court of Appeal what the words were intended to mean.
[31]See for example R v Marziale (Unreported, Court of Appeal, 18 April 1996); BC9601366, at 34 (Winneke P, Brooking JA and Southwell AJA); Raimondi v The Queen [2013] VSCA 194 [59] (Redlich JA); GAP v The Queen [2011] VSCA 176 [46] (Redlich JA); R v JMV [2001] VSCA 219, [6] (Winneke P); R v Franks (No 2) (1999) 105 A Crim R 377, 378 [5] (Winneke P), 387–8 [39]–[41] (Charles JA).
In R v Ahmet,[32] an issue arose on the appeal as to whether the sentencing judge had properly taken into account s 10 of the Sentencing Act. The judge’s reasons for sentence were not explicit as to that matter. However, the judge’s report, to the Court of Appeal, made it clear that he did take s 10 into account, although he did not consider it was necessary to make specific reference to it in his sentencing reasons. Winneke P (with whom Hayne JA and Smith AJA agreed), observed that the contents of that report disposed of the particular ground argued on the application for leave to appeal. His Honour then stated: [33]
The report of the primary judge which is contemplated by the Rules and section 573 of the Crimes Act[34] is intended to assist the Court of Appeal by giving to it the judge’s “opinion upon the case or upon any point arising in the case”. … On some occasions the reports are of value in the disposition of appeals, if only because they provide the opportunity … to express views upon matters that may not be readily apparent from a perusal of the written record … However such reports are not, are not intended to be, and should not be treated as documents in and through which the trial judge is being called upon to defend the course which he or she may have taken.
[32](1996) 86 A Crim R 316 (‘Ahmet’).
[33]Ibid 323.
[34]The relevant part of which is, for present purposes, identical to s 316 of the Criminal Procedure Act 2008.
In R v Groom,[35] a question arose, on an application for leave to appeal against sentence, whether the judge had impermissibly taken into account the principle of proportionality in determining that he should not suspend the term of imprisonment imposed on the applicant. The three members of the Court of Appeal were each agreed that the judge’s sentencing remarks did not indicate that the judge impermissibly took that factor into account. However, the judge’s report to the court indicated that, in fact, the judge had incorrectly taken into account the principle of proportionality in respect of that matter. Based on that report, Batt JA held that the particular ground of appeal was made out.[36] Tadgell JA disagreed. Having referred to the decision of the court in Ahmet, Tadgell JA considered that the report ought not to be taken into account, since it did no more than construe the words used by the judge in passing sentence.[37] On the other hand, Buchanan JA considered that the report fell within the ambit of the principle stated in Ahmet, in that it informed the Court of Appeal of the approach taken by the judge to the question of the suspension of the applicant’s sentence. His Honour stated:
While I agree that, in general, sentencing remarks are not to be construed according to a later statement as to his meaning by the sentencing judge, in the present case I regard the relevance of the report as revealing the approach in fact taken by the sentencing judge to the question of suspension of sentence rather than as a submission as to the meaning of words.[38]
[35][1999] 2 VR 159.
[36]Ibid 170 [40]–[41].
[37]Ibid 160 [3].
[38]Ibid 172 [50].
Self-evidently, the line between a report that construes the sentencing judge’s sentencing remarks, and a report which, on the other hand, reveals the approach of the judge, is not clear cut, and is easily blurred. In the present case, I consider that the judge’s report falls into the latter category, in that it reveals the manner in which the judge took into account the strength of the prosecution case as I have stated. His report supports my analysis of his reasons.
For the foregoing reasons, I do not consider that the judge, in the passage in his sentencing reasons relied on, or took into account, the strength of the prosecution case as a factor that otherwise diminished or reduced the weight to be attached to the subjective factors associated with the appellant’s plea of guilty. Rather, in that passage, the judge noted that the plea did not attract the additional weight it would have been afforded if the appellant had pleaded guilty in the face of a weak prosecution case.
The appellant did not contend that the judge was not entitled to take into account the strength of the prosecution case, in the manner in which I have found that his Honour did so. The approach by the judge, in that respect, is well supported by the passage from the joint judgment in Phillips, to which I have referred, and by other cases.
It is clear on the authorities, and as a matter of common sense, that the strength or otherwise of a prosecution case is a factor which may be relevant, and may be taken into account, in determining the degree and depth of remorse of an offender. As stated in the passage in Phillips to which I have referred,[39] a plea made in the face of an obviously weak prosecution case is strong evidence of the subjective elements of remorse, willingness to facilitate the course of justice and acceptance of responsibility on the part of the offender. Equally, it is relevant as demonstrating the extent and sincerity of the remorse of the offender. In such a case, a plea of guilty would be entitled to be accorded additional weight in the manner described by the judge in this case.
[39]Phillips v The Queen (2012) 37 VR 594, 614 [70].
In the same way, the strength of a prosecution case may be a salient factor, to be considered in the context of all other relevant facts, in assessing the degree and sincerity of remorse demonstrated by an offender. Obviously, as the cases make plain, a strong prosecution case, of its own, is insufficient to negative, or materially reduce, the extent of remorse otherwise established on behalf of an offender, particularly where there are contextual facts (such as admissions made to investigating officers and the entry of an early plea) which substantiate the existence and extent of the subjective factors of remorse, willingness to facilitate the course of justice and acceptance of responsibility.
In Phillips, the sentencing judge, stated that the weight to be accorded to the applicant’s plea ‘must be tempered by the fact that … the case against (the applicant) was overwhelming’.[40] The question which arose was whether the judge impermissibly took into account the strength of the prosecution case in determining the weight to be given to the plea. Redlich JA and Curtain AJA (with whom Maxwell P agreed) noted that there were two questions for consideration. The first issue was whether the ‘discount’ to be allowed for the objective pragmatic benefits of a plea (the utilitarian aspects of the plea) should be reduced because of the strength of the prosecution case. Their Honours answered that question in the negative. The second issue, identified by the joint judgment, was whether the strength of the prosecution case ‘alone’ could warrant a reduction in the weight to be accorded to the subjective elements associated with a plea of guilty (remorse, willingness to facilitate the course of justice and acceptance of responsibility), or whether there must be other contextual evidence that reveals the extent to which those subjective factors are present.[41]
[40]Ibid 599 [15].
[41]Ibid 604 [34].
Having posed that question, Redlich JA and Curtain AJA then stated ten conclusions in respect of the relevant matters ‘… which should inform a determination of the extent of the discount to be given for a plea of guilty’.[42] The fifth, eighth and tenth conclusions, there stated, are relevant, and are as follows: [43]
[42]Ibid 604 [36].
[43]Ibid.
5It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.
…
8The weakness of the Crown case, if apparent, may … inform the extent of the offender’s willingness to facilitate the course of justice.
…
10The strength of the Crown case can only support an inference that these subjective criteria played little or no role in the decision to plead guilty where the state of the contextual evidence on the plea permits no such conclusion.
It is those propositions which were elaborated in the passage in the joint judgment, to which I have earlier referred. Relevantly, it is significant that that passage commences with the observation that the strength of the prosecution case ‘may cast doubt on the extent of the offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice and so result in a lesser discount than one would otherwise allow’.[44]
[44]Ibid 614 [70] (emphasis added); see also 600 [13]–[18] (Nettle JA); 620 [92] (Harper JA).
In the same passage, the joint judgment referred to the observations of Redlich JA in R v Pajic.[45] There his Honour stated the following:[46]
Section 5(2E) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case. Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It would be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent. Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.
It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of a utilitarian consideration. And a reduction in the discount because of the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice. The discount for his plea of guilty was not to be reduced because of the strength of the Crown case.
[45](2009) 23 VR 527.
[46]Ibid 532 [19]–[20] (citations omitted).
Similarly, the passage quoted by the joint judgment in Phillips, from the judgment of the court in Chalmers v The Queen[47], is to like effect. In that case, the court held that the sentencing judge was entitled to conclude that the remorse felt by the applicant was ‘somewhat limited’[48], in circumstances in which the applicant had concealed the victim’s body for a lengthy period, and in which he only offered to help police locate it because he hoped thereby that he would be charged with manslaughter rather than murder. The court held that, in that context, the strength of the prosecution case was an additional relevant factor supporting the judge’s finding that the applicant’s remorse was relatively limited.
[47](2011) 37 VR 464.
[48]Ibid 475 [52] (Maxwell P, Redlich JA and Kyrou AJA).
Based on the foregoing, the following conclusions may be stated in relation to the relevance of an assessment of the strength or otherwise of the prosecution case in determining the degree of remorse evidenced by a plea of guilty. First, in an appropriate case, a plea of guilty entered in the face of an obviously weak prosecution case may demonstrate the degree and sincerity of the remorse of the offender, and thus entitle a judge to accord the plea of guilty additional weight in that respect. Secondly, where a guilty plea is entered in the face of a strong prosecution case, the strength of that case may, in appropriate circumstances, be relevant to determining the extent and sincerity of the remorse of the offender. However, the strength of the prosecution case would not, of itself, ordinarily be sufficient to reduce or negative the existence or extent of remorse demonstrated by a guilty plea, unless other contextual circumstances support such a conclusion.
Based on those propositions, the judge was correct to observe that the guilty pleas of the appellant did not attract the additional weight they would have been accorded if the appellant had pleaded guilty in the face of a weak prosecution case. It follows that the first ground of appeal is not made out.
Ground 3
Ground 3 is that the judge erred in failing to have regard to the principle of totality in ordering that the whole of the sentence imposed on the first firearms charge (in respect of the offence committed on 10 August 2013) be served cumulatively upon the base sentence, namely, the sentence of five years’ imprisonment for the offence of reckless conduct endangering life committed on 19 August.
In support of that proposition, counsel submitted the principle of totality extends to a case where an offender is sentenced on the one occasion in respect of multiple offences, irrespective of whether the offences are connected in time or by circumstance. It was submitted that the judge was required to have regard to the principle of totality in considering whether the first firearms charge should be served wholly cumulatively upon the sentence for the offence of reckless conduct endangering life. Counsel contended that the order by the judge, that the full 12 months sentence imposed on the first firearm charge, be served cumulatively on the base sentence, demonstrated that the judge failed to have regard to the principle of totality appropriately.
As a starting point, I note that the appellant makes no criticism of the sentence imposed for the first firearm charge in respect of the offence committed by him on 10 August 2013. Clearly, the sentence of 12 months’ imprisonment, for that offence, was well within range. The provisions of the Firearms Act, including s 5(1), are directed to the express purpose of ensuring public safety and peace.[49] The appellant acted in blatant disregard of the prohibition, to which he was subject pursuant to s 5(1) of the Act. His conduct, in exiting his home in the early hours of the morning with a loaded .32 calibre semi-automatic handgun, in breach of that section, fully warranted the imposition of a sentence of 12 months’ imprisonment.
[49]Firearms Act 1996 s 1.
The question is whether the principle of totality required that the judge order that part of the sentence, imposed for that offence, be served concurrently with, rather than cumulatively upon, the base sentence that was imposed for the charge of reckless conduct endangering life.
The principle of totality is designed to ensure that the total sentence imposed upon an offender reflects no more than the overall criminality involved in the offending, taking into account, and giving due weight to, the mitigating circumstances relevant to the case, and also taking into account the requirement that a sentence, imposed on an offender, should not in total be ‘crushing’.[50] The principle applies notwithstanding that the offences may not be connected in time, place or context.[51] In order to accommodate the principle, ordinarily the sentencing judge should make the sentences imposed for the individual offences wholly, or partially, concurrent, rather than by moderating the individual sentences imposed for each particular offence.[52]
[50]Mill v The Queen (1988) 166 CLR 59, 62-63; R v Piacentino (2007) 15 VR 501, 507 [32] (Eames JA); Azzopardi v The Queen [2011] VSCA 372 [61] (Redlich JA).
[51]Morgan v The Queen [2013] VSCA 33 [62]–[70] (Maxwell P, Weinberg and Priest JJA).
[52]DPP v Grabovac [1998] 1 VR 664, 680 (Ormiston JA); Azzopardi v The Queen [2011] VSCA 372, [65] (Redlich JA); DPP (Cth) v KMD [2015] VSCA 255 [89]–[97] (Maxwell P, Weinberg and Beach JJA).
Those principles, however, do not necessitate or require, in each case, orders for concurrency, in order to ensure that the total effective sentence, and the non-parole period, do not each exceed what would otherwise be a proper reflection of the overall criminality of the offender, taking into account the relevant mitigating factors in the case. Further, it is not necessary, that in each case, the sentencing judge should expressly refer to the principle of totality, where the judge orders cumulation between two separate charges.
In the present case, the judge was clearly alert to the question whether he should order cumulation, or concurrency, in respect of the sentences that he imposed on the appellant for the two offences of being a prohibited person in possession of a firearm. The judge, no doubt taking into account the principles of totality, directed that the sentence imposed in respect of the firearm offence committed on 19 August, be served concurrently with the sentence imposed in respect of the offence of reckless conduct endangering life committed by the appellant on the same day. Thus, in providing that the sentence imposed in respect of being a prohibited person in possession of a firearm on 10 August be totally cumulated on the sentences imposed in respect of the offences committed on 19 August, the judge was clearly mindful of the issue of totality.
In my view, in the circumstances of the case, that principle did not require the judge to direct any concurrency between the sentence imposed in respect of the offence committed on 10 August, and the offences committed on 19 and 20 August. As I have stated, the offence committed by the appellant on 10 August was, of itself, a serious breach of s 5(1) of the Firearms Act. The offending by the appellant on 19 August was most serious. Rather than contacting the police, the appellant took the law into his own hands. In doing so, he put at serious risk the lives and safety of two innocent members of the public. He did so in a manner which was entirely and utterly unacceptable in our community. The conduct of the appellant, in participating in the pursuit of J and E, and, while doing so, firing three shots from his handgun at them, required the imposition of a severe sentence. Taking those matters into account, I do not consider that the principles of totality required the judge to moderate either the total effective sentence, or the non-parole period, by ordering a degree of concurrency between the separate firearms charge and the base sentence imposed for the offence of reckless conduct endangering life.
For those reasons, the appellant has not made out ground 3.
Ground 4
Ground 4 is that two of the sentences imposed on the applicant are manifestly excessive, namely: the five year sentence imposed on the charge of reckless conduct endangering life; and the order that the entirety of the one year sentence imposed on the first firearms charge be served cumulatively upon the base sentence.
In support of that ground, counsel for the appellant pointed to the evidence of the appellant, on his trial, that he acquired the gun, because of the threats made to him three days previously by ZB that he would kill the appellant, rape his mother and rape his girlfriend. Further, while the offending on 19 August 2013 was not provoked by the victims, nevertheless it was actuated by the appellant’s fear of the B family who, nine days earlier, had invaded his home. The appellant wrongly believed that J and E were members or associates of the B family.
In addition, counsel relied on a number of the mitigating circumstances found by the judge in the appellant’s favour. The appellant’s guilty pleas had been entered at the first reasonable opportunity. The appellant was found to be genuinely remorseful for his actions. While he had a long history of drug abuse, urine screens supported the proposition that he had not used drugs since being incarcerated in August 2013. Accordingly his rehabilitation prospects were good. The appellant had no previous or subsequent convictions for offences of violence. He had demonstrated that he was able to be a productive member of society, by working in the construction industry for almost 10 years until 2012. The judge found that the appellant had reasonable prospects of rehabilitation, given the support of his family members, and the efforts that he was making in jail to put his life in order. The term of imprisonment was likely to be particularly burdensome for the appellant, since he suffers from severe long-term depression and anxiety, he is anxious about encountering members of the B family or their supporters in jail, and he is concerned about not being able to assist in the raising of his children.
It was submitted that, taking those mitigating circumstances into account, the sentence in the charge of reckless conduct endangering life, comprising one half of the maximum sentence applicable in respect of that offence, was manifestly excessive.
Counsel for the appellant also relied on a number of sentences in other cases, which, it was contended, were comparable with the present case. In particular, counsel referred to R v Chaouk,[53] R v Shafik-Eid,[54] and R v Rudd.[55]
[53][2013] VSC 362.
[54][2009] VSCA 217.
[55](2009) 23 VR 444.
In order to establish the ground of appeal relied on, the appellant must demonstrate that the sentences, alleged to be manifestly excessive, were ‘wholly outside the range of sentencing options available’ to the sentencing judge.[56] In determining that question, the Court must take into account that the determination of an appropriate sentence, in a particular case, is the task of the sentencing judge in the proper exercise of the sentencing discretion. It is well recognised that, in any case, views might reasonably differ as to the appropriate sentence that should be imposed in the case. Thus, it is not sufficient for the appellant to persuade the appellate court that, in the circumstances, it would have imposed a different and lesser penalty. Rather, as I stated, the sentence must be demonstrated to be wholly outside the range of sentences available to the trial judge in the circumstances of the case.
[56]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
For the reasons that have already, largely, been stated, I do not consider that the five year sentence, imposed on the charge of reckless conduct endangering life, was manifestly excessive. The fact that the appellant acted in the manner in which he did, because he was frightened of the B family, was sufficient to exclude an alternative hypothesis that the appellant acted in an unexplained outburst of gratuitous violence. Further, to some extent, it mitigated the offending, since the appellant was reacting to genuine fear that he felt, notwithstanding that he was badly in error in doing so.
However, as already stated, the appellant, in acting in that way, decided to take the law into his own hands in a manner that was patently dangerous, frightening, and unacceptable. The judge was well justified in concluding that the appellant’s offending came within the ‘upper end of the spectrum of seriousness’ for the offence of reckless conduct endangering life. The appellant’s conduct, and such conduct by any like-minded individuals, simply cannot be countenanced in a civilised society. In such a case, considerations of denunciation and general deterrence must be given substantial weight. The community, and the courts, cannot tolerate the type of violent conduct in which the appellant indulged on the evening of 19 August.
Further, notwithstanding the appellant’s remorse, considerations of specific deterrence were nevertheless significant. It was important that the judge impose a sentence of sufficient severity to impress on the appellant, in no uncertain terms, that he must not resort to the same type of violence if confronted with a similar set of circumstances in the future. The relevance of specific deterrence was, in this case, accentuated by the fact that, at the time that the appellant committed the offences, he was then subject to two community corrections orders, both of which were designed to assist him to rehabilitate by addressing his problems with drug abuse. He was also subject to three separate bail orders. The fact that, notwithstanding those court dispositions that were then applicable to him, the appellant engaged in such serious offending, gave added weight to the requirement of specific deterrence in determination of the sentence.
In those circumstances, and giving the mitigating circumstances found by the judge full weight, I am not persuaded that the sentence of 5 years’ imprisonment, on the charge of reckless conduct endangering life, was wholly outside the range of sentences available to the judge. In my view, the sentence imposed was appropriate, and well within range.
In addition, again largely for the reasons I have already stated, I do not consider that the cumulation of the entirety of the one year sentence, imposed on the first firearms charge, on the base sentence, was manifestly excessive. The firearms charge was, of itself, a serious charge. The offence took place on an earlier date than the offence involving reckless conduct endangering life. As I stated, considerations of totality did not require the judge to provide for any period of concurrency between the two sentences. The firearms offence was sufficient to warrant, of itself, an additional 12 months’ imprisonment, over and above the sentence imposed in respect of the later offence of reckless conduct endangering life. Accordingly, the cumulation of that sentence was not manifestly excessive.
For the purpose of completeness, for the reasons stated above, I do not consider that the non-parole period of 4 years’ imprisonment, fixed for the State offences, was manifestly excessive. That period was appropriately proportionate to the head sentence. It reflected sufficiently the criminality of the offending, while giving appropriate weight to the mitigating factors found by the judge.
As I stated, counsel for the appellant relied on sentences imposed in three other cases in support of the proposition that the sentences imposed in the present case were manifestly excessive. In response, counsel for the respondent provided a table of other cases involving sentences for the offence of reckless conduct endangering life.[57] This Court has emphasised, on a number of occasions, that while a set of comparable cases may, in a broad manner, assist the court to determine the range open in the exercise of the sentencing discretion in a particular case, nevertheless, they only provide a general guide as to the appropriate range of sentences. They do not constitute precedents for the sentence to be imposed in the present case. Nor does reference to those cases require the sentencing judge, or this Court, to engage in an analysis of the particular facts of the ‘comparable’ cases relied on.[58]
[57]R v Bradley [2010] VSCA 70; R v Le [2009] VSCA 247; DPP v Arvanitidis [2008] VSCA 189; R v Sahari [2007] VSCA 235; R v Van Boxtel (2011) 11 VR 258.
[58]Hudson v The Queen (2010) 30 VR 610, 616–617 [27]–[31] (Ashley, Redlich and Harper JJA); Hasan v The Queen (2010) 31 VR 28, 40–42 [52]–[55] (Maxwell P, Redlich and Harper JJA); Soo v The Queen [2014] VSCA 304, [26]–[28], [31] (Santamaria JA); Kapkidis v The Queen [2013] VSCA 35 [33] (Maxwell P and Redlich JA).
In each of the cases referred to, the facts and circumstances, both of the offending, and of the offender, were relevantly different. The sentences imposed in each case resulted from the exercise of the sentencing discretion, by the accepted method involving an instinctive synthesis of the relevant facts and considerations. The sentences, in the cases referred to, do provide a general guide as to the appropriate range of sentence in the present case. They do not demonstrate that any of the sentences, that are the subject of the fourth ground of appeal, were manifestly excessive.
For those reasons, the fourth ground of appeal must fail.
Conclusion
For the reasons stated above, the appellant has not made out any of the three grounds of appeal relied on. Accordingly, the appeal against sentence must be dismissed.
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