Berry v The Queen [2019] VSCA 291

1 The applicant pleaded guilty in the County Court to two charges of attempted armed robbery and to two uplifted summary charges. He was sentenced to a term of 4 years' imprisonment. At the time he was sentenced on these charges the applicant was serving a 12 month sentence imposed by the Magistrates' Court in relation to a large number of summary offences. A six month non-parole period imposed by the Magistrate had expired.

2 The judge proceeded on the basis that the principle of totality, which requires a court to evaluate the overall criminality involved in all of the offences for which the prisoner is charged or serving a sentence, did not apply. The applicant submits, and the respondent concedes, that this involves error. Nevertheless, the respondent submits that no lesser sentence should be imposed and that leave to appeal should therefore be refused.[1]

3 For the reasons that follow we would grant leave to appeal and allow the appeal and resentence the applicant to a term of imprisonment of 3 years, with a non-parole period of 18 months.

4 The sentence imposed by the judge is reflected in the following table.

Commit indictable offence whilst on bail[4]

Contravene family violence intervention order[5]

Pre-sentence detention declared under s 18(1) of the Sentencing Act 1991

Section 6AAA declaration: 5 years and 6 months' imprisonment with a non-parole period of 3 years and 6 months

Background and circumstances of the offending

5 On the afternoon of 1 August 2017, the applicant and a female companion (J) caught a train to Sunshine. By being in the company of J, the applicant breached a Family Intervention Order and committed a criminal offence (Summary charge 5 - Breach of Family Violence Intervention Order). That was not his only criminal conduct that day.

6 Also leaving the train at Sunshine were two young men (B, aged 16 and S, aged 18) who were not known to the applicant. The applicant and J shared an elevator from the platform with the two young men and then got ahead of them heading down some stairs leading towards the station exit.

7 When the first victim, B, reached the bottom of the stairs the applicant approached him. The applicant produced a meat cleaver, holding it up, and said 'Give me your phone' (Charge 1 - Attempted armed robbery). B turned around and managed to head back up the stairs.

8 The applicant then immediately approached S, who was descending the stairs. He produced the meat cleaver, and pointed it at S's chest, saying: 'Empty your pockets and give me your phone'. After S replied that he did not have a phone, the applicant grabbed at S's jumper pocket. S hit the applicant to the stomach and ran away (Charge 2 - Attempted armed robbery). Both B and S were able to flee towards a bus interchange where they boarded a bus. There were a number of other members of the public in the area, including on the stairs, at the time of the attempted robberies.

9 On 24 July 2017, the applicant had been arrested in relation to a theft offence and granted bail to appear at Broadmeadows Magistrates' Court to answer that charge. The attempted armed robberies were committed whilst the applicant was on bail (Summary charge 3 - Committing an indictable offence whilst on bail).

10 The applicant was identified from CCTV footage. He was charged on summons on 3 April 2018. At the first committal case conference on 6 June 2018, the applicant pleaded guilty.

11 At the time he was charged, the applicant was in custody for other offending. The extent to which that period of incarceration should be brought to account for the purpose of applying the principle of totality is a central aspect of the application for leave to appeal.

12 In early January 2018 the applicant had been remanded in custody in respect of a number of summary charges. On 14 February 2018 he pleaded guilty to three groups of summary charges, being:

(a) Thirteen charges for which he was sentenced to 4 months' imprisonment on each charge fully concurrent. Forty-two days of pre-sentence detention was reckoned. The charges included theft from a shop, theft of a motor vehicle, breach of bail and contravention of a family violence intervention order.

(b) Eight charges, including intentionally damaging property, assault with a weapon and unlawful assault and possession of a controlled weapon without excuse, for which he was sentenced to an aggregate 4 months' imprisonment cumulative on other sentences imposed that day.

(c) Twenty-six charges, including theft from a shop, going equipped to steal, possession of cannabis, possession of controlled weapon committing indictable offences whilst on bail and contravention of a community correction order. He was sentenced to an aggregate 4 months' imprisonment cumulative upon other sentences imposed that day

13 In the result, the applicant was sentenced to 12 months' imprisonment with a non-parole period fixed at 6 months. Under that sentence the non-parole period ended on 4 July 2018 and the term expired in early January 2019.

14 On 9 April 2018 he was sentenced to 2 months' imprisonment for unlawful assault.

15 On 8 May 2018 he pleaded guilty to a charge of contravening a family violence intervention order and was sentenced by a Magistrate to 12 months' imprisonment, 3 months of which was cumulative on his existing term of imprisonment. That order was set aside on appeal to the County Court and the sentence was replaced with a sentence of 3 months' imprisonment fully concurrent with the sentences being served.

16 In the result, at the time he came to be sentenced he was serving a sentence of 12 months' imprisonment with a non-parole period of 6 months, which represented the combined sentences imposed on the various occasions. This was his first experience of imprisonment.

17 The judge said that the attempted armed robbery offences were 'absolutely outrageous',[6] as they were committed in public, on young victims and involved the use of a bladed weapon.[7] His Honour noted that the offences were committed when the applicant was on bail, and that the applicant had a number of relevant prior convictions including offences involving the possession of prohibited weapons.[8]

18 In favour of the applicant the judge took into account the plea of guilty and the applicant's difficult upbringing. The judge concluded that the prospects of rehabilitation were 'guarded', noting that much depended on the applicant's desistance from drugs.[9] In that respect he noted that during a five year period the applicant had been gainfully employed and, although not entirely free from drug taking, he had not offended.[10] The judge noted the support he had from his father, with whom he had recently re-established a relationship.[11]

19 In the course of argument on the plea, his Honour said that the fact that the applicant was then serving a period of imprisonment was irrelevant to totality. The judge did not refer to totality in his reasons for sentence. However, the judge said that the sequence of events meant that the applicant had been deprived of the opportunity of parole under the sentences imposed by the Magistrates' Court and he took this into account.[12] In that respect he said:

One impact of that sentence, has been that he has not been able to enter bail during that period. The sentence imposed in February envisaged a situation where he would have been eligible for [parole] on 14 August of this year. The extent that that has deprived him from approximately two months eligibility for parole, I will take that into account in the sentence I impose.

20 The judge returned to that matter a little later in his reasons. He said that he had imposed a shorter non-parole period because, while waiting for the plea, the applicant had:

lost the ability in regard to your current sentence to seek parole. Indeed, the specifics of that are that there is almost two months elapsed for the time that you would have otherwise been eligible for parole until the time of this sentence.[13]

21 In the result the judge imposed a term of imprisonment of 4 years for each of the two charges of attempted armed robbery fully concurrent and imposed concurrent sentences on the summary offences. The sentence was also made concurrent with the sentence then being served by the applicant.

22 As we have said, the respondent conceded that the judge erred in holding that the principle of totality did not apply. That principle requires the sentencing judge to stand back and assess not just the individual sentences but the aggregate sentence and consider whether the aggregate is proportionate to the degree of criminality involved and is 'just and appropriate' and 'not excessive'.[14]

23 Relevantly for present purposes, the totality principle applies when the offender being sentenced is already serving a sentence. In R v Mangelen, Redlich JA said:

Historically the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender's criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an 'unjust or inappropriate measure of the total criminality involved' the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.[15]

24 The concern of the principle is to ensure that a person sentenced for multiple offences receives a sentence that is commensurate with the total criminality involved. It guards against arriving at an unjust sentence derived from the bare accumulation of individual sentences passed on one or more occasion.

25 Notwithstanding the error, the respondent submits that no lesser sentence should be imposed. The respondent points to the fact that the other unrelated charges involve significant offending over an extended period of time. They included significant offences including unlawful assault, contravention of a family violence order, theft, possession of a controlled weapon, and assault with a weapon.

26 Before the judge the applicant had invited the judge to impose a combined Community Corrections Order ('CCO') and custodial sentence. The prosecution accepted that such a course was open to the judge. The judge held that the attempted armed robberies were too serious, when taken with the applicant's history, to permit a combined disposition.[16] In our view, the judge was correct in that regard. We are, nevertheless, persuaded that a lesser term should be imposed.

27 It is important to note the Crown's concession that the sentences of 4 years imposed on the attempted armed robbery charges were 'statistical outliers'. By way of explanation of the concession, the Crown's written case pointed out that a sentence of 4 years was 'in the top 10 per cent of prison sentences recorded for this offence in the five years to 30 June 2016'. The written case listed 12 County Court decisions in the period 2016-17, in each of which the sentence for attempted armed robbery - including in cases where a bladed weapon was used - was a term of imprisonment of 3 years or less.

28 Given the abiding importance of the principle of equal justice,[17] we do not consider that the circumstances of this case warranted the imposition of 'outlier' sentences. Every attempted armed robbery is serious but these attempts were brief and ineffectual, and easily thwarted by evasive action from the victims.

29 Turning to matters personal, the judge's assessment of the applicant's prospects of rehabilitation as 'guarded' was entirely reasonable. Now aged 31, the applicant is not a young man and has had a long history of drug abuse associated with criminal activity. In recent times, the sheer number of offences, including offences committed on bail and when under a CCO suggests that any assessment of rehabilitation must be cautious.

30 His difficult upbringing was noted by the judge, who applied the principles explained in Bugmy v The Queen.[18] The applicant's mother suffered from drug abuse and has a criminal record leading to an absence of a steady environment for the applicant. The evidence did not permit any detailed findings in this regard and the level of deprivation does not rise to the type considered by the High Court in Bugmy. Nevertheless it moderates, at least to some modest degree, the moral culpability of the applicant. He was diagnosed with ADHD as a teenager, began using cannabis at 14 and turned to methamphetamine and heroin in his late teens.

31 The current period of incarceration, which was his first time in prison, commenced in January 2018 and is ongoing under the current sentence, provides an opportunity for the applicant to realise that any further offending will inevitably involve a high risk of imprisonment. It is well past the time for a last opportunity to avoid incarceration, however, it is not too late for the applicant to reflect on the damage to the community and to himself that his criminal activity has caused.

32 The principle of totality requires the sentencing court, and this Court on resentence, to consider the overall level of criminality in the offending that forms the basis of the existing and proposed sentence. That is not a straightforward task where, as here, all of the details concerning the earlier offending is not before the Court.

33 There is no doubt that the applicant has committed a large number of offences. The type of offences for which he was sentenced in the Magistrates' Court varied but included property offences, offences of violence and breaches of bail and a CCO. They demonstrate a persistent pattern of offending. As the respondent conceded, however, these are properly to be regarded as relatively low level examples of those offences.

34 Balancing all of the factors, including the principle of totality, we would sentence the applicant to a term of imprisonment of 3 years' imprisonment on each of the charges of attempted armed robbery. Those sentences should be concurrent.

35 In relation to the summary offences the applicant has a significant and relevant history of contravening family violence orders. Although the agreed summary and the CCTV footage reveal no apparent concern on J's part at being in the company of the applicant, the obligation to comply with an order of this kind does not depend upon the waxing and waning of the relationship between the protected person and the person subject to the family violence order. In the circumstances a term of imprisonment was warranted. There is no occasion to revisit the sentence imposed by the judge.

36 In relation to the sentence imposed on a charge of committing an indictable offence whilst on bail, again it is noted that the applicant has committed many offences while on bail. The sentence imposed of 1 month was appropriate and we would not alter it.

37 We would grant leave to appeal on ground one and allow the appeal. We would resentence the applicant to a term of imprisonment of 3 years' imprisonment on each charge of attempted armed robbery, 1 month on Charge 3 (committing indictable offence whilst on bail) and 3 months on Charge 5 (contravening a family violence intervention order). We would order that each of the sentences be concurrent, which results in a total effective sentence of 3 years' imprisonment. We would order a non-parole period of 18 months. This sentence is to be concurrent with the sentences imposed in the Magistrates' Court.

[1] Criminal Procedure Act 2009 s 280(1)(a).

[2] Crimes Act 1958 ss 75A, 321M, 321P.

[4] Bail Act 1977 s 30B.

[5] Family Violence Protection Act 2008 s 123.

[6] DPP v Berry [2018] VCC 1607, [4] ('Reasons').

[14] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ) ('Mill'), quoting D A Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56-7; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8 (McHugh J); R v Piacentino [2007] VSCA 49; (2007) 15 VR 501, 508 [32] (Eames JA with whom Buchanan JA and Vincent JA agreed).

[15] [2009] VSCA 63; (2009) 23 VR 692, 697 [28] (citations omitted).

[17] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28] (French CJ, Crennan and Kiefel JJ).