Ahmad v the Queen [2015] VSCA 23

1 On 9 May 2014, the appellant pleaded guilty to a number of indictable and related summary offences on two separate indictments. The appellant was sentenced in respect of those offences on 3 June 2014 as follows:

3 months' imprisonment, and 3 year Community Correction Order ('CCO') with 250 hour community work condition

Trafficking [Drugs Poisons and Controlled Substances Act 1981 s 71AC]

Robbery [Crimes Act 1958 s 75A (1)]

Intentionally cause injury [Crimes Act 1958 s 18]

Possession of a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 73]

Possession of counterfeit money [Crimes (Currency) Act 1981 (Cth) s 9(1)(a)]

Make threat to cause serious injury [Crimes Act 1958 s 21]

Store ammunition in an insecure manner [Firearms Act 1996 s 129A]

Possession of a prohibited weapon [Control of Weapons Act 1990 s 5AB(1)]

Possession of a controlled weapon [Control of Weapons Act 1990 s 6(1)]

Other orders: Forensic sample ordered pursuant to Crimes Act 1958 s 464ZF(2), Forfeiture Order (Cth); Disposal Order.

2 On 30 June 2014, the appellant sought leave to appeal against sentence on the following grounds:

1. The individual terms of imprisonment on charges contained in both indictments and the orders for cumulation are:

(a) manifestly excessive; and

(b) such as to offend the principle of totality.

3 On 11 August 2014, Neave JA granted leave to appeal against the sentence imposed for the affray charge on Indictment C1208541.3 ('the affray indictment'), and the cumulation of that sentence on the sentences imposed on Indictment C12955862.1 ('the trafficking indictment'). Her Honour refused leave to appeal against the individual sentences imposed on the trafficking indictment.

4 Her Honour indicated that her primary reason for granting leave in respect of the affray indictment was that, at the time her Honour did so, this Court had not yet handed down its decision in Boulton v The Queen.[2] In that case, the Court was to deliver a guideline judgment, pursuant to s 6AB of the Sentencing Act 1991, regarding the use of CCOs as a sentencing option. The guideline judgment was to be delivered at the same time that the Court determined the matters before it in that case, each of which concerned appeals against sentence brought by persons who had been sentenced to a CCO. In those circumstances, her Honour took the view that leave should be granted, so that the matter could be determined in light of any principles subsequently laid down by this Court in Boulton. Of course, this Court has now delivered its reasons in that case.

Circumstances of the affray indictment offending

5 At around 11.30pm on 20 April 2012, the appellant and his co-accused, Mr Paul Azzopardi, drove to the home of Ms Stephanie Primavera. Ms Primavera was, at the time, in a relationship with Mr Azzopardi. The appellant was a friend of Mr Azzopardi, and was known to Ms Primavera.

6 When the appellant and Mr Azzopardi arrived at the house, they found Ms Primavera sitting in the passenger seat of a Mitsubishi Lancer, which was parked at the front of the house. The car belonged to Mr Stephen Doumtsis, a friend of Ms Primavera, and a person with whom she had previously been in a relationship. Mr Doumtsis was sitting alongside her, in the driver's seat.

7 The appellant and Mr Azzopardi parked the car that they were travelling in alongside the Mitsubishi, such that there was only a small distance between the two vehicles. The appellant exited the car, and was approached by Ms Primavera. She struck him in the face, at which point a scuffle broke out, and Ms Primavera was knocked to the ground.

8 In the meantime, Mr Azzopardi approached the Mitsubishi in which Mr Doumtsis was still seated. He was carrying a knife at the time, however it was conceded that the appellant was not aware of this fact. Mr Azzopardi lunged at Mr Doumtsis, and stabbed him in the shoulder. The two men then engaged in a scuffle outside the car. They were subsequently separated by members of Ms Primavera's family, who had come out from inside the house.

9 Ms Primavera continued fighting with the appellant before the appellant was told to leave by Ms Primavera's family.

10 The appellant was arrested on 22 April 2012. In his interview with police, he said that he had jumped out of the car to help Mr Azzopardi. A brawl had broken out involving 6-8 people, during which he had punched one person who was standing over Mr Azzopardi.

11 The appellant said he had put his arms around Ms Primavera to restrain her from the fight, and that Ms Primavera had hit, scratched and punched him. He claimed not to have seen Ms Primavera fall to the ground, and that he had done nothing which would have caused her to fall.

12 He stated that he left the property on foot, after he was threatened by a male who had come out of the residence.

Circumstances of the trafficking indictment offending

13 On 4 October 2012, the appellant met Mr George Paraskevas and another man at the intersection of Pinetree and Wellington Crescent in Lalor. The appellant gave Mr Paraskevas a quantity of methamphetamine, which Mr Paraskevas agreed to pay for at a later time (Charge 1 - trafficking).

14 On 12 October 2012, Mr Paraskevas contacted the appellant. He told him that he believed the substance that he had been given was sugar, and that he would not be paying for it. The appellant replied that he had supplied 'good stuff' and would be getting his money. They agreed to meet at the same location in Lalor.

15 At approximately 6pm that evening, Mr Paraskevas arrived at the agreed location, along with a friend of his, Adrian Falzon. The appellant arrived shortly afterwards, along with three unknown men, in a Holden Commodore. Mr Falzon gave the appellant some money, at which point the appellant said that Mr Paraskevas owed him interest. One of the unknown men then instructed Mr Falzon to get into the Commodore. He also told Mr Paraskevas that he would be getting into Mr Paraskevas' car, and that they were to follow the Commodore. Mr Paraskevas asked the appellant what was going on, to which the appellant replied that everything would be okay, and that he should get into his car and follow the Commodore as instructed.

16 After about five minutes, both vehicles arrived at an uninhabited housing estate in Thomastown. The unknown man ordered Mr Paraskevas to give him his keys and get out of the car. Both the appellant and the unknown man also got out of their respective cars, and approached Mr Paraskevas. They punched Mr Paraskevas to the face, about four or five times each. Mr Parskevas attempted to defend himself by raising his hands, but did not otherwise fight back. A second unknown man also got out of the Commodore, and punched Mr Paraskevas a number of times to the face (Charge 3 - intentionally cause injury). Mr Paraskevas suffered bruising, and a graze to his leg as a result of the attack.

17 Mr Paraskevas and Mr Falzon (who, by this stage, had exited the Commodore) began to run away. The appellant and one of his co-offenders got into Mr Paraskevas' car, whilst the other two unknown men got into the Commodore. The appellant called out to Mr Paraskevas 'You better pay me by next week. You owe me a grand now for these boys that had to come out.' Both cars then drove away.

18 Mr Paraskevas' car was located in Pascoe Vale the following day. His keys, wallet, and mobile phone, which he had left in his car, were missing.

19 On 19 October 2012, police executed a search warrant at the appellant's home. They located Mr Paraskevas' credit card and mobile phone (Charge 2 - robbery). They also found a plastic bag containing methamphetamine (Charge 4 - possession of a drug of dependence), counterfeit money (Charge 5 - possession of counterfeit money), one .22 round of ammunition (Charge 8 - store ammunition in an insecure manner), and one imitation firearm (Charge 9 - possession of a prohibited weapon).

20 At approximately 8.20pm that evening, the appellant posted the following threat on his Facebook account (Charge 6 - threat to cause serious injury):

I honestly don't give a fuck that im putting this on fb because iv got nothing to hide but if im taking the motherfukkerz that took me down with me, anyone that reads this and knows PARAS GEORGE let the SNITCHING DOG know that when trying to rip someone (ME) backfires in your face and you get ripped (Paris Hilton) its karam ... (GOING TO THE JAKS AND MAKING UP SHIT THAT'S WORSE THEN WAT ACTUALLY HAPPENED IS THE WORST THING YOU CAN DO) they have remanded an innocent person who had nothing to do with it, my house got raided by 30 detectives and wen the get me im going in aswel, BUT DER IS NO WAY IM GOING DOWN WITHOUT YOUR BLOOD SPILLING YOU DOG. I ADMIT IT'S A THREAT THAT I WILL FOLLOW UP ON. SO IF U NO (PARAS G) LET HIM KNOW

21 Police arrested the appellant at his home on 22 October 2012. At the time of his arrest, he was found to be in possession of a knife (Charge 13 - possession of a controlled weapon).

22 So far as relevant to this appeal, the personal circumstances of the appellant were summarised by Neave JA, in her leave reasons, as follows:

[The appellant] was 20 years old at the time of the offences in [the affray indictment] and 21 at the time of the offences contained in [the trafficking indictment]. His parents separated during his early childhood and [his mother] married [his stepfather] when [the appellant] was around four years old. [The appellant] and his mother were both victims of domestic violence perpetrated by his stepfather and were forced into emergency accommodation on a number of occasions between 1996 and 2002. In 2001, when [the appellant] was 10 years old, he and his step brother ... were sexually abused by an uncle.

[The appellant] has a good history of employment. After completing year 9 at Lalor North High School he worked at Kentucky Fried Chicken, as a panel beater, as a painter and as an insulation installer. His most recent place of employment was ANS Waterproofing where he worked until early 2011. [The appellant] first began experimenting with drugs when he was 16 and by 2012 was a daily user of methamphetamine. [The appellant] has an extensive criminal history in the Children's Court, including convictions for assault with a weapon, robbery, two charges of affray and recklessly causing serious injury. In the adult jurisdiction, he has convictions for burglary and theft in 2010 and 2011 respectively.

Since his arrest, [the appellant] has remained in custody for over 19 months. Whilst in custody he has completed a number of courses to assist with his rehabilitation including anger management, conflict management, gambler help and a certificate II in cleaning operations. He has also passed a number of random drug tests.

23 In passing sentence, the judge noted that the appellant was 20 years of age at the time he committed the offences the subject of the affray indictment, and 21 years of age at the time he committed the offending the subject of the trafficking indictment. The judge then described the offending the subject of the trafficking indictment in some detail, before coming to the appellant's prior convictions. The judge said that as an adult, the appellant's prior convictions were 'not dramatically bad'.[3] The judge also noted that the appellant had never been sentenced to imprisonment before. The judge then described the appellant's prior convictions that were dealt with in the Children's Court.

24 In the course of his reasons for sentence, the judge noted the appellant's counsel's submission that given the appellant's young age and despite the seriousness of his offending, the judge should take into account the period that the appellant had already been in custody, and then make a determination which would result in the appellant entering into a Community Correction Order without the need to serve any more actual time in custody.

25 The judge then dealt further with the circumstances of the appellant's offending and the appellant's background. The judge then concluded:

[Counsel for the accused] said though these offences on their face are all serious offences, when one looks at the offending, they are of a relatively low order. And I accept that submission, but for the threat. In assessing the culpability in each of the crimes to which you have pleaded guilty, based upon the relativity of the matters that come before this Court, and assessing such culpability as required by the High Court in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452, I do put them at relatively low on the scale of heinousness, based on the actual circumstances.

[Counsel for the accused] also stressed, despite the seriousness of these crimes, that I have before me, a person who is still very young. As I say, you turn 23 tomorrow. A person who should be looking ahead to improving himself and becoming a valued member of the community.

After long and concerned consideration, I have seen the strength in [counsel for the accused's] submission. Clearly Mr Ahmad, as you know, you are at the crossroads. If you finish your time in gaol and you go back on drugs again, then you can be assured, the next sentence you get in front of me, will not be light.

I have decided, because of your age and the matters put to me, and the particular circumstances that I have detailed, that it is appropriate, despite the seriousness of these crimes, to give you an opportunity. What I intend to do, and in so doing, I have in particular, and I thank the prosecution for this, taken into account the series of cases tendered to me, as to sentences relevant to charges of robbery and affray ... . It is, of course, necessary to look at each of those sentences on the basis that they inform the Court, which then has to look at the particular circumstances of each case, insofar as its determination.

What I intend to do is this, Mr Ahmad, if you consent, to the period that you have served already, which will be deemed service of this sentence, I intend to sentence you to an additional three months in gaol and to then impose a Community Correction Order thereafter, for a period of three years.[4]

26 The appellant submits that the imposition of a sentence of 3 months' imprisonment and a 3 year CCO on the affray charge, in addition to the 590 days imprisonment ordered in respect of the offending the subject of the trafficking indictment, is manifestly excessive and offends against the principle of totality. In support of this submission, the appellant contends that the judge failed to have proper regard to the appellant's plea of guilty at an early stage; the appellant's remorse; the appellant's youth; the appellant's disadvantaged family background; the appellant's limited prior criminal history as an adult; the fact that the appellant had not been previously sentenced to a term of immediate imprisonment; and the appellant's good prospects for rehabilitation evidenced by the appellant's good work history and significant steps taken by the appellant towards rehabilitation while in custody in relation to the offending the subject of the trafficking indictment.

27 As we have said, limited leave to appeal was granted in this case, in part, because this Court had not yet handed down its decision in Boulton - a decision which was likely to be of relevance in the present case.

This analysis also highlights the 'quintessentially discretionary' nature of the judgment made by the court in fashioning a CCO - both in length and in conditions attached - to suit an offender. As a corollary, there is likely to be a broader range within which opinions can reasonably differ about what was appropriate for the particular offence and the particular offender. It may, as a result, be more difficult to establish on appeal that a decision to impose a CCO was 'not reasonably open'.

...

The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

The CCO option offers the court something which no term of imprisonment can offer,[5] namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. [6]

29 As to combining a CCO with a term of imprisonment, the Court in Boulton later said:

The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending. [7]

30 Notwithstanding that the judge accepted a submission from the appellant's counsel that the appellant's offending was of a 'relatively low order'[8] it is clear that the judge regarded the appellant's crimes as serious.[9] In this regard, the judge was plainly correct. The fact that the appellant's offending may be at the lower end of the scale of seriousness for the charges with respect to which he pleaded guilty does not detract from the overall seriousness of his criminal conduct. The maximum penalties for the offences for which the appellant pleaded guilty show that for offending at the upper end of seriousness in relation to these offences, significantly harsher sentences can, and might, be imposed.

31 Having regard to all of the appellant's offending, we see no error in the judge's sentencing synthesis. Further, in our view, there is no basis for saying that the judge overlooked any of the matters referred to and relied upon by the appellant. His Honour's reasons disclose that he gave careful attention to each of the matters in mitigation relied upon by the appellant, and also to the issue of totality.

32 A different judge might have determined that, having regard to the 590 days already spent in custody, it was not necessary to sentence the appellant to a further term of imprisonment as well as a three year CCO, and that a CCO of three years duration would have been sufficient. Views might also differ as to the appropriate length of any CCO to be ordered and the structure of his Honour's ultimate sentence. However, as has been said repeatedly, the question of whether or not a different judge might have imposed a different sentence is not relevant in an appeal against sentence. In order to succeed on the ground of manifest excess, what must be shown is that the sentence is wholly outside the permissible range of sentencing options.

33 In our view, the sentence imposed by the judge and the order that it be cumulated upon a sentence imposed in relation to the offences the subject of the trafficking indictment did not offend the principle of totality; nor was it wholly outside the range of sentencing options open to the judge.

[1] The practical effect of this sentence was that the sentences with respect to the trafficking and robbery offences were served concurrently during the entire 590 days of pre-sentence custody (which also included the serving of concurrent sentences imposed for intentionally cause injury, possess a drug of dependence, make threat to cause serious injury and the summary offences). The sentences imposed with respect to the affray (three months imprisonment - 84 days) and possessing counterfeit money (two months imprisonment) were to be served concurrently with each other and cumulatively on all other sentences commencing on the date of sentence (3 June 2014).

[2] [2014] VSCA 342 ('Boulton').

[3] DPP v Ahmad (Unreported, County Court of Victoria, Judge McInerney, 4 June 2014) ('Reasons'), [16].

[5] In this point in the Court's judgment in Boulton, the Court stated in a footnote that, in this discussion, it was not considering the 'combination' option of a CCO and a term of imprisonment.

[6] Boulton [2014] VSCA 342 [102] and [113]-[115].