Best v The Queen [2015] VSCA 151

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 12 April 2012, the applicant pleaded guilty in the County Court to three charges of false imprisonment[1] (charges 4, 6 and 9) and one charge of being a prohibited person in possession of an unregistered firearm[2] (charge 10).

2 Following a plea hearing, on 26 April 2012 the applicant was sentenced to be imprisoned four (4) years and six (6) months on charge 4; for three (3) years and six (6) months on both charge 6 and charge 10; and for two (2) years and six (6) months on charge 9. Two years of the sentences on each of charges 6 and 10, and 18 months of the sentence on charge 9, were ordered to be served cumulatively with each other and with the sentence on charge 4. The total effective sentence was thus 10 years' imprisonment, upon which a non-parole period of seven (7) years and six (6) months' imprisonment was fixed.

3 Leave to appeal is sought on the following grounds:

1. The learned sentencing judge erred in failing to take into account the pending reduction in the maximum penalty applicable to Charge 10 in sentencing.
2. The total effective sentence and the non-parole period were manifestly excessive as a result of:

(a) undue weight being given to matters which were not the subject of any charge against the applicant and

(b) excessive cumulation being ordered in respect of the firearms offence.

1. The sentence imposed on Charge 10 was manifestly excessive.

4 The applicant requires an extension of time in which to bring his application for leave to appeal against sentence. We would grant that extension, principally for three reasons. First of all, when he attempted to initiate his appeal, the applicant was unrepresented, and laboured under the difficulties attending such a state of affairs. Once he secured representation, his representatives were not dilatory in taking appropriate steps to advance the application. Secondly, it is of some significance that that the respondent did not oppose the extension of time. Thirdly, in our opinion the interests of justice demand that the extension be granted. Quite clearly, there is merit in the applicant's case, and he should not be shut out from appellate relief on account of his failure to bring an application for leave to appeal in a timely fashion when unrepresented.

5 For the reasons that follow, we would also grant leave to appeal and allow the appeal. We would make orders so as to re-sentence the applicant to a total effective sentence of eight (8) years and six (6) months' imprisonment, upon which we would fix a non-parole period of six (6) years and six (6) months.

6 It is necessary to say something of how the prosecution put its case.

7 Charge 4 alleged that between 2 and 5 January 2010 the applicant and Melissa Knight ('Knight') falsely imprisoned Yavuz Demirkol ('Demirkol'); charge 6 that between 2 and 4 January 2010 the applicant and Knight falsely imprisoned Michael Salatas ('Salatas'); and charge 9 that between 3 and 5 January 2010 the applicant and Knight falsely imprisoned Jesse Trigg ('Trigg'). The firearms charge, charge 10, alleged that on 5 January 2010 the applicant, being a prohibited person, possessed an unregistered firearm, namely a BRNO Make 581 Model 22 RIMFIRE Calibre Category C Semi Automatic RimFire Rifle ('the firearm').

8 By way of overview, the prosecution case was that the applicant falsely imprisoned Demirkol, Salatas and Trigg as a consequence of a drug transaction that went wrong.

9 The two ringleaders of the offending were the applicant and one Adam Gray. They, with Knight, engaged two brothers, Mohi Tamati and Jahdon Tamati ('the Tamati brothers'), and two other individuals, Mathew Smith ('Smith') and Timothy Falla ('Falla'), to ensure that the three captives were not released. The prosecution case was that the applicant and the several co-offenders were each a party to a common design to keep the victims falsely imprisoned, and each performed acts pursuant to an agreement to keep the complainants falsely imprisoned, including randomly moving the victims throughout their imprisonment from one location to another.

10 When we refer to the relevant course of events in more detail, it will become apparent that the prisoners were, at different times during their captivity, exposed to quite extreme and sadistic episodes of violence, and suffered injury (some of it serious). It was accepted by both parties during the appeal that, given the purpose and duration of the false imprisonment, the sentencing judge could treat as circumstances of aggravation of the false imprisonment the likelihood that violence would be employed and that attempts would be made to extort money from the victims' families and friends. The primary question on the appeal was whether the specific aspects of the violence perpetrated on the victims by the applicant's co-offenders in the applicant's absence, and the consequential injuries they suffered, might be visited upon him for the purposes of sentence.

11 As will emerge, the course that the plea hearing took was unsatisfactory. Although all of the violence inflicted upon the victims and their injuries was included in the agreed facts, at no point did the prosecution make clear which of those circumstances the judge could take into account as features of aggravation, and at no point did the judge insist that it be made clear.

12 Exhibit A, entitled 'Draft Agreed Summary of Facts', was tendered. In the main, the prosecutor's opening consisted of a recitation of that document.

13 The prosecutor opened that at approximately 9:00pm on 1 January 2010, the applicant, Gray and Knight met with a drug dealer, 'Ayna', for the purpose of purchasing drugs from him. Two of Ayna's associates were Demirkol and Salatas. Gray gave Ayna $13,000. In return, Ayna was to supply 1000 ecstasy tablets. Ayna left to collect the ecstasy, while the applicant, Gray and Knight awaited his return with Demirkol and Salatas.

14 The group waited for several hours. Attempts were made to contact Ayna. When they were satisfied that he was not returning, the applicant, Gray, and Knight became angry and decided to hold Demirkol and Salatas hostage, until they either got their money back or received the drugs.

15 Demirkol and Salatas were forced to remain in the rear of a white van. The prosecution alleged that on one occasion when Demirkol stood and tried to look outside, the applicant produced a sawn-off rifle and Gray threatened, 'If youse move I'll shoot you'. (We interpolate to note that Demirkol, Knight and the applicant each gave evidence during the plea hearing about this aspect, which was the subject of dispute. Ultimately the judge found that the applicant and Gray were aware that there was a sawn-off .22 rifle in the van, and that Demirkol was threatened with it.)

16 Later, the van was driven to a property where Knight was dropped. Demirkol and Salatas had pillow cases put over their heads, and the applicant, while carrying a rifle, searched them. The van was driven around for two hours, before being stopped at a telephone box. The applicant showed Demirkol a bottle of acid and he was made to telephone his brother. During the conversation, the applicant took the telephone and told Demirkol's brother that if he did not get $15,000 he would not see Demirkol again.

17 At about 4:30am, the applicant and Gray took their prisoners to a farm house. Demirkol and Salatas remained restrained in the back of the van with pillow cases over their heads for in excess of six hours.

18 The next day, victims were driven around. At one point Demirkol, while he was shown the acid and Gray pointed a gun at him, was made again to call his brother. Smith and the Tamati brothers, who were armed with knives or meat cleavers, joined the applicant and Gray. They threatened the victims, while Gray and one of the Tamatis were carrying firearms.

19 On one occasion on Saturday, 2 January 2010, the applicant deliberately fired a shot from the sawn-off rifle directly over the head of Demirkol. The firing of this shot may be, for the purposes of the present application, an uncharged act of some significance ('the first uncharged act').

20 The third victim, Trigg, was picked up by some of the co-offenders early on the Sunday morning, under the guise of arranging for Salatas' release.

21 Further attempts were made to have Demirkol's brother pay for his release, including driving the van to Demirkol's family's home and calling the brother.

22 Eventually, the three prisoners were driven to an abandoned weatherboard premises in St Albans. The co-offenders nailed doors over windows to prevent the victims from escaping.

23 At some time during Sunday, 3 January 2010, at Gray's instruction, Gray and the Tamati brothers assaulted Trigg by kicking, stomping and jumping on his head and back. Demirkol, who was restrained, was also assaulted. He was punched and kicked in the face; his head, back and ribs, were stomped on; hot candle wax was poured on his legs, face and ears; and a metal claw hammer was heated with a naked flame and used to burn his calf. Smith, who was also present, unloaded the rifle and placed it against Demirkol's chest with a pillow, purportedly to muffle the sound of a gunshot, and the trigger was pulled. (Demirkol was not to know that the weapon was unloaded.) The victims sustained these assaults over several hours ('the second uncharged acts').

24 On Monday, 4 January 2010, Gray and the Tamati brothers took the three victims to a bridge in Keilor in a blue Ford. During the drive there, one of the Tamati brothers leant over and punched Salatas several times to the head. Once at the bridge, the captives had their legs and arms bound with nylon rope. The captives were made to enter a manhole. As this was happening, Demirkol was assaulted, including being punched in the face causing his nose to break. He bled from it. Later, Gray kicked Demirkol, causing him to fall three metres whilst still trussed up. Demirkol's head struck the rocks on the ground below. The Tamati brothers then punched and kicked him unconscious while he lay on the ground. Trigg was also made to assault Demirkol ('the third uncharged acts').

25 Around this time, Salatas was released so as to obtain a valuable coin collection, but he was rescued by police.

26 Demirkol and Trigg were taken to a property in St Albans, next door to the applicant's home. They were held there in a different white van before being moved into a garage on the applicant's property, where they were tied with cable ties and wire, and had pillow cases placed over their heads. The applicant showed Demirkol and Trigg a high-powered rifle.

27 Early the next day, Tuesday, the applicant, Gray, Smith and the Tamati brothers left the property, and Falla was left to ensure Demirkol and Trigg did not escape.

28 Police intercepted and arrested the applicant, Gray, Smith and the Tamati brothers. Demirkol and Trigg were later rescued by police.

29 Before proceeding further, we should note the sentences passed on the co-offenders.

30 Jahdon Tamati, who was almost 20 years of age at the time of offending, originally received a total effective sentence of seven (7) years and six (6) months' imprisonment, with a non-parole period of five (5) years, on three charges of false imprisonment; one charge of intentionally causing injury; one charge of intentionally causing serious injury; and one charge of assault. Mohi Tamati, 22 years of age, on the same charges, received a total effective sentence of eight (8) years and six (6) months' imprisonment, with a non-parole period of six (6) years. On appeal, Jahdon Tamati's sentence was reduced to six (6) years' imprisonment, with a non-parole period of four (4) years and three (3) months; and Mohi Tamati's sentence was reduced to six (6) years and nine (9) months' imprisonment, with a non-parole period of four (4) years and nine (9) months. The Tamati brothers pleaded guilty to more serious charges than did the applicant (although they did not face a firearms charge), but they had youth and a relative lack of prior criminal history on their side.

31 Gray was sentenced in the County Court to four (4) years' imprisonment for the false imprisonment of Demirkol; three (3) years for false imprisonment of Salatas; and two (2) years for the false imprisonment of Trigg. For intentionally causing injury to Trigg, he received a further two (2) years; and for intentionally causing serious injury to Demirkol, another five (5) years. For extortion, he received three (3) years' imprisonment. With orders for partial cumulation between the individual sentences, his total effective sentence 11 years' imprisonment, upon which a non-parole period of seven (7) years and six (6) months was fixed.

Ground 1, ground 2(b) and ground 3 - Altered maximum penalty for firearms charge, manifest excess and excessive cumulation

32 On charge 10, being a prohibited person in possession of an unregistered firearm, the judge imposed a sentence of three (3) years and six (6) months' imprisonment on the applicant. Two (2) years of that sentence was ordered to be served cumulatively on all other sentences.

33 In support of ground 1, the applicant drew attention to the fact that, with effect from 16 May 2012, s 5(1A) of the Firearms Act 1996 - the section under which the applicant was charged - was repealed and s 5(1) was amended. (It will be remembered that the applicant's plea was heard on 12 April 2012, and he was sentenced on 26 April 2012.) These changes effected a reduction of the maximum penalty for the kind of conduct founding charge 10 from 15 years' to 10 years' imprisonment.

34 Had the judge been made aware of the reduction in maximum penalty, so the applicant argued, it is likely that the individual sentence imposed on charge 10, and the extent to which the sentence was cumulated on others, would have been far more moderate.[3]

35 Similar submissions to those advanced by the applicant in this case were advanced in Saner.[4] In that case, the applicant had also been charged with being a prohibited person in possession of an unregistered firearm. It was argued that the sentencing judge had failed to take into account the lower maximum penalty recently enacted. Tate JA (with whom Redlich JA agreed) observed that at the time the offence in that case was committed, s 5(1A) of the Firearms Act 1996 provided that, a 'prohibited person must not possess, carry or use a firearm that is not registered'. The offence created by s 5(1A) carried a maximum penalty of 15 years' imprisonment, whereas, by virtue of s 5(1) of the Act, the offence of being a prohibited person in possession of a 'registered firearm' attracted a maximum penalty of 10 years' imprisonment. Tate JA noted the repeal of s 5(1A) in May 2012 by s 8(2) of the Control of Weapons and Firearms Amendment Act 2012, which also substituted a new s 5(1). Section 5(1) - as substituted - provides that a 'prohibited person must not possess, carry or use a firearm', and prescribes a maximum penalty

of 10 years' imprisonment. Having cited authority, including Driver, Tate JA said:[5]

The amendment to the Firearms Act has thus created a new offence, one that does not distinguish between the registered or unregistered nature of the firearm.[6] The new offence created is a hybrid of the two previously distinct offences and the applicable penalty is that which applied to the lesser offence; this would appear to be a natural consequence of it no longer being necessary to the commission of the offence that the firearm of which the offender is in possession is unregistered. The legislative history together with the nature of the legislative amendment are quite different from those which applied in Driver. Nevertheless, one of the purposes of the amending legislation was declared to be to 'combine two offences relating to prohibited persons possessing, carrying or using registered or unregistered firearms.[7] In so declaring, Parliament has indicated that the distinction between registered and unregistered firearms is not to be given the significance previously associated with it in the context of this specific offence.

In my view, it should be concluded that the amendment made here, the repeal of s 5(1A) of the Firearms Act, and its replacement by s 5(1) of the Firearms Act, reflects a change in attitude by the Parliament which enables Kamal's submission to succeed.

36 In written submissions, the respondent had sought to distinguish Saner because of 'a lack of sufficient temporal proximity between the applicant's offending and the legislative amendment'. During the hearing in this Court, however, counsel for the respondent did not seek to maintain that submission, and fairly conceded that Saner could not meaningfully be distinguished. That was a proper concession to make.

38 Further, under cover of grounds 2(a) and 3 it was submitted that the individual sentence on charge 10, and the extent to which the sentence on that charge was cumulated with the sentences on other charges, was excessive. It was submitted - in our view, correctly - that the judge proffered little by way of explanation for the sentencing on the firearms charge. Further again, in reliance on Berichon,[8] it was submitted that a sentence of three and a half years' imprisonment could only have been justified if the applicant's possession of the firearm fell into the 'serious category' described in that case. There is substance in these submissions.

The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham[10] and Armistead v R.[11] The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate[12] unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence.[13] The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order.[14] Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.

Where an offender faces two charges, the first being for a criminal offence committed in circumstances where in aggravation of that offence the offender uses or possesses a firearm and the second being a charge for possession of that unregistered firearm as a prohibited person, to avoid double punishment the criminal conduct the subject of the first charge cannot be relied upon in relation to the second charge of possession to elevate that possession into the more serious category discussed above.[15] For the second charge of possession to be placed in the more serious category, the state of the evidence must permit the conclusion that the possession was for some criminal purpose distinct from the unlawful activity the subject of the first charge.

40 As the applicant's counsel pointed out, while the applicant has an extensive criminal history, it does not involve the use of firearms (save, perhaps, for a prior conviction for possessing ammunition). Moreover, although the applicant had used the firearm during the course of the false imprisonment of the three victims, there was no evidence, so it was argued, that he possessed the firearm for a purpose that went beyond the instant offending. Despite these matters, however, when one looks at the individual sentence imposed, and the degree of cumulation ordered, it is hard to escape the conclusion that the judge ignored - or, at least, paid insufficient attention to - the need to avoid double punishment.

41 There is, in our opinion, merit in the applicant's submissions. In Berichon, the applicant had an appalling criminal history, which included two convictions for attempted murder, constituted by the shooting of two police officers. In the present case, although his prior convictions are unenviable, the applicant does not have serious convictions involving the unlawful use of firearms, yet he received the same sentence as did Berichon for the firearms charge. Further, Berichon had 18 months of the sentence of imprisonment on the firearms charge made cumulative on the principal charge, whereas two years of the sentence on charge 10 in the present case was ordered to be served cumulatively on other charges. Although, of course, every case must depend on its own facts, the comparison of the individual sentence and order for cumulation in this case with those in Berichon leaves one with a sense of disquiet. Indeed, in our view, it leads inevitably to the conclusion that the judge treated the offence in charge 10 in a manner that was not warranted in all of the circumstances.

43 In light of the above, we would re-sentence the applicant on charge 10 to be imprisoned for two (2) years and (6) months, and we would order that one (1) year of that sentence be served cumulatively with the sentences on charges 4, 6 and 9.

Ground 2(a) - Undue weight given to uncharged acts

44 In this Court, it was initially submitted for the applicant that the judge's reasons revealed that he sentenced on the false imprisonment charges so as to impermissibly take into account as features of aggravation the infliction of injuries on the victims; the possession by the applicant of a firearm and its use to threaten the victims while they were held prisoner; the extortion demands; and the applicant's role as a ringleader with the co-offender Gray.[16] As we have said, it was conceded during oral argument that the likelihood of violence and the extortion of the victims' family and friends were aggravating features of the false imprisonment. Neither was it contended that the applicant's use of the firearm was not an aggravating feature. But distinct complaint was made that the judge must have impermissibly sentenced the applicant for the three charges of false imprisonment on the basis that the extreme violence and injuries caused to the victims during the course of the second uncharged acts (the assaults at the St Albans house) and third uncharged acts (the assaults at the bridge) were aggravating features of those offences.

45 As we have mentioned, the prosecutor opened the case according to a document, Exhibit A, entitled 'Draft Agreed Summary of Facts'. The undated document detailed all of the offending involving the applicant and his co-offenders. It was a curious document in a number of respects. Thus, for example, under the heading of 'Monday 4th January 2010 - EJ Whitten Bridge, Keilor', at paragraphs 40 to 46, it described the third uncharged acts at the bridge, but a line had been struck through the applicant's name. It seems that the clear intent behind striking-out the applicant's name was to indicate that he was not present during the events at the bridge (it not being disputed on the plea that he was not present during that incident); but, it must be said that, if the striking-out was done by agreement - an aspect of which was that the applicant was not to be fixed with any culpability for the events at the bridge or the other uncharged acts - the substance of any agreement was not made plain.

46 In our view, the flavour one gets from reading the remarks of counsel on the plea is that some agreement between the two ends of the Bar table had been struck which underpinned the applicant's pleas of guilty to the four charges; but, as we have observed, the terms of the agreement were not distinctly identified or articulated. In particular, whether there was any (and, if so, what) agreed position as to the relevance of the acts of violence perpetrated, and injuries to the victims caused, by the applicant's co-offenders was, lamentably, left opaque.

47 On the first day of the plea hearing, the prosecutor said at the outset that a few days earlier she had been contacted by defence counsel who 'indicated that some of the factual parts of the summary were disputed'. She told the judge that, 'Some of it we can agree upon but there are other aspects on which Your Honour is going to have to hear some evidence about'. In context, however, this passage appears to be relevant to the factual dispute about whether the applicant brandished a .22 rifle at Demirkol in the van in the early part of his imprisonment (a factual dispute which was, as we have mentioned, resolved adversely to the applicant).

48 When the plea hearing resumed on a later occasion, the prosecutor opened by, in effect, reading Exhibit A. After that had occurred, the judge and prosecutor had the following exchange:[17]

HIS HONOUR: ... What I'm going to have to address with you that's been concerning me is a lot of factual circumstances set out in relation to the infliction of or threatening ... infliction of violence. Mr Best has not been - has not pleaded to any charge of injury, for example, which Gray did I think from memory ---

PROSECUTOR: Yes, Your Honour, that's correct.

HIS HONOUR: --- and as did, I think ---

PROSECUTOR: The Tamati brothers.

HIS HONOUR: --- the Tamati brothers.

PROSECUTOR: Yes that's right.

HIS HONOUR: Is it your position that the circumstances of the infliction of violence or threat of violence is set out in the opening are aggravating features of the false imprisonment charges?

PROSECUTOR: Yes it is, Your Honour.

HIS HONOUR: And I can have regard ... to that in determining what an appropriate sentence for Mr Best is in relation to the three counts of false imprisonment.

PROSECUTOR: The false imprisonment. There's no suggestion, Your Honour, and I think that's pretty evident that Mr Best, in fact, inflicted any of those injuries.

HIS HONOUR: Except that your case is that those who did were acting in concert and in pursuant to common design and (indistinct).

PROSECUTOR: In terms of keeping them there, Your Honour, the false imprisonment charges.

HIS HONOUR: He threatened violence.

PROSECUTOR: He did threaten violence.

49 A fair reading of this passage suggests that the prosecution's position was that, although the applicant had not caused injuries to the victims, a relevant factor for the purposes of sentencing was that he had 'threatened violence' to the victims.

50 The issue of violence arose again in the course of defence counsel's plea:

DEFENCE COUNSEL: ... As to the violence, Your Honour, it does aggravate the offending to an extent. However, in relation to the [bridge], he wasn't there. And there's no evidence that he was made aware that they were being taken there for the purpose of assaulting him. And that seems to have been the most serious assault on Mr Dermikol, because he's kicked unconscious on my understanding.

51 It seems from this passage that counsel for the applicant conceded that the use of 'violence' aggravated the applicant's offending 'to an extent'. He did, however, submit that the applicant should not be fixed with responsibility for what occurred at the bridge, including the serious assault on Demirkol. The prosecutor did not take issue with this submission.

52 In another passage, during discussion which seems to have been directed to the issue of parity, the judge reflected on the sentences imposed on co-offenders, and said:

HIS HONOUR: ... It's artificial and I've been conscious all the way through this to have regard to the hierarchy and the sentencing and where everyone fits and the principles of parity. And that's why I've got difficulties with - and why I raised it with the prosecutor and you. What I do with the - you know, your bloke running around with guns and threatening people and the fact that this fellow gets - they get seriously hurt and injured. That's all relevant to when I come to sentence you on the charges of false imprisonment, it aggravates it.

DEFENCE COUNSEL: Yes. Certainly he can't be sentenced on the basis.

HIS HONOUR: I'm not sentencing for intentionally causing injury.

53 Ignoring the vernacular, it appears from this exchange that his Honour expressed the view that an aggravating circumstance of the false imprisonment was the fact that the victims were 'seriously hurt and injured', but that the applicant's counsel disputed that those matters could be taken into account.

54 Towards the end of the plea, there was some reference to an agreement between counsel concerning factual issues. Gray had been charged with, and sentenced for, extortion; but, although the applicant had been charged with extortion, the prosecution did not require him to enter a plea to that charge. It was said:

PROSECUTOR: Your Honour, can I just say in respect of Mr Gray in the extortion - how he had that additional as well. It was clear in the way that this matter resolved, that the extortion would clearly be part of the aggravating features of the false imprisonment.

DEFENCE COUNSEL: No issue with that. The phone calls are there, Your Honour.

55 From this exchange it is plain that the issue of the applicant's plea 'resolved', and that part of that resolution - apparently worked out in telephone calls between counsel - was that the extortion 'would clearly be part of the aggravating features of false imprisonment'. The applicant's argument on appeal did not depart from his counsel's approach on the plea that all of the applicant's conduct - that is of the applicant himself - aggravated the offences of false imprisonment.

56 The judge was at no stage apprised of the agreement between counsel, although it seems clear enough that there was an agreement as to how some aspects of the applicant's uncharged acts might be used as features of aggravation. Importantly, save, perhaps, for the extortion, the manner in which the particular uncharged acts that did not involve the applicant could be used was not articulated with any clarity (if at all). This was partly the fault of counsel. But the judge, who had responsibility for properly exercising the sentencing discretion, should have insisted that the basis upon which the uncharged acts were said to be relevant to sentence be explained to him with precision. It was no insignificant matter that the agreed facts included most serious assaults and consequential injuries - the subject of victim impact statements - with which the applicant had neither been charged nor convicted. They had the potential to substantially elevate the seriousness of the offences of false imprisonment if there was a permissible basis upon which to take them into account. It was incumbent upon the sentencing judge to ascertain whether there was a legitimate basis upon which he could treat them as aggravating the offences upon which the applicant fell to be sentenced. In the circumstances, it is difficult to escape the conclusion that the judge permitted irrelevant matters to infect the imposition of sentence.

57 In the course of his sentencing remarks, the judge observed:

Mr Demirkol in particular was severely injured whilst at the Whitten Bridge when he was kicked, stomped, burnt, punched and terrorised by your co accused. You were not present at the time of that infliction of injury. Your counsel, however, conceded that the evidence of the violence, attempted extortion and threats to your victim aggravate the offences to which you have pleaded guilty.

The injuries sustained by your victims are set out in paragraph 57 of Exhibit A, the prosecution opening. As I said, it is not suggested that you personally inflicted any of those injuries. However, they are the direct consequences of your false imprisonment of each of your victims.

59 And later again in his sentencing remarks, the judge said, in a passage the meaning of which is difficult to penetrate:

I have had regard to the sentences I imposed on Gray and indeed the sentences I imposed on Mohi and Jahdon Tamati and Matthew Smith. It is significant that in your case there are no charges relating to the infliction of violence upon your victims. You, however, have the additional charge of possessing an unregistered firearm as a prohibited person. The issue of parity of sentences between offenders is made very difficult in your case because of the lack of infliction of injury charges. Your offending is aggravated by the surrounding incidents of extreme violence, but you cannot and are not being sentenced for offences of violence.

60 As we have said more than once, it seems clear enough that there was some agreement between counsel as to which features of the surrounding circumstances might aggravate the false imprisonment charges, but the terms of the agreement were not communicated with any clarity to the judge (who did not, in any event, insist on being made aware of what the parties had agreed was permissible - and impermissible - for him to take into account).

61 It will not be unusual for a comprehensive statement of facts by the Crown to include matters relating to a course of criminal conduct which may include matters for which the offender is not to be punished. So as to avoid error, if counsel reach an agreement as to the factual basis upon which a plea of guilty is to be entered - including those things that may, and may not, be considered to be circumstances of aggravation - that agreement ought to be recorded in some fashion (preferably in writing)[18] and the judge advised of its tenor. As Bongiorno JA (with whom Ashley JA agreed) said in Djukic[19] (a case where the factual basis for a drug trafficking charge was disputed):[20]

It would have been preferable if the factual basis on which the appellant was to be sentenced and to which he pleaded guilty had been the subject of clear agreement, recorded in writing, between his lawyers and those for the prosecution. The High Court recommended such a course in GAS v R in unmistakable terms. It reduces the scope for misunderstanding the basis upon which an accused person pleaded guilty and places the trial judge in a position of certainty as to the basis upon which sentences should be passed. ...

62 Sometimes the statute providing for an offence will create an aggravated form of the offence which attracts a higher penalty. In those circumstances, any statutory feature of aggravation must be pleaded in the indictment, and, unless admitted on a plea of guilty, must be found by a jury to the criminal standard.[21]

63 In many cases, the commission of a particular offence might be aggravated by acts which themselves constitute discrete offences. A familiar example is culpable driving causing death constituted by gross negligence. It is accepted that exceeding the prescribed concentration of alcohol, and exceeding the speed limit, both of which are discrete summary offences, may aggravate that offence. Another familiar example is the burial or burning of a corpse[22] after an unlawful killing, which will aggravate the offences of murder and manslaughter. Other features of aggravation arise from particular circumstances of the offence's commission. Thus for example, group sexual activities, or use of sex toys, are features aggravating offences involving consensual sexual activities with children.

64 Features of aggravation may, of course, lead to a more severe sentence. Axiomatically, therefore, features of aggravation must be established by the prosecution beyond reasonable doubt.[23] Further, procedural fairness dictates that a judge generally should not act upon a putative aggravating circumstance of any significance unless it has first been raised with counsel.[24]

65 Similarly, where the parties have, for the purposes of sentencing, agreed upon an agreed factual basis of an offence, although a judge is not necessarily bound by the agreed facts,[25] such agreed facts should not be departed from without the matter being raised with counsel, and counsel given the opportunity to address argument.[26] And, of the utmost importance, a person cannot (generally speaking) be sentenced for conduct which might constitute a separate offence of which he has neither been charged nor convicted.[27]

66 The last principle, of course, is not applicable in cases of representative charges or 'rolled-up counts'. In the case of a representative count, a single instance of conduct which occurred in a wider context is charged. A judge is entitled to take notice of the fact that the charged act was not an isolated incident. Rolled-up counts, on the other hand, involve several discrete offences being bundled together into a single charge.[28] This 'rolling-up' of charges, which would otherwise fall foul of the rule against duplicity, can occur with the consent of the accused. It is unnecessary to consider whether, by agreement of the parties, acts which would otherwise justify separate charges could be considered to be aggravating circumstances for the purposes of charged events, so that they might be taken into account as showing the context in which the charged acts occurred.

67 What the judge thought he could take into account as aggravating the offences of false imprisonment is far from perspicuous. Was it simply the general circumstances of violence? Did it include the injuries to the victims, including the serious injuries to Demirkol? It seems clear enough, as we have said, that defence counsel had agreed that some of the general circumstances of violence could be taken into account as circumstances of aggravation of the false imprisonment of the three victims. It also seems clear enough - although his remarks were in large part Delphic, and in part contradictory - that the sentencing judge thought that he could take into account the injuries caused to the victims. Hence, as previously observed, the judge said that although it was not suggested that the applicant 'personally inflicted any of those injuries', nonetheless 'they are the direct consequences of [his] false imprisonment of each of [his] victims'.

68 It is clear that the judge, in sentencing the applicant, took into account as aggravating features the nature of the assaults when the applicant was not present and their consequential injuries, in circumstances where defence counsel disputed that the injuries could properly be sheeted home to his client, and in circumstances where the prosecution did not distinctly suggest that they could. As we have said, it would have been legitimate for the judge to take into account as a factor relevant to sentence the general milieu of violence which attended the false imprisonments, but the assaults which did not involve the applicant and the infliction of actual injuries to the victims resulting therefrom, stands in a different position. That would be so even if counsel for the applicant had not explicitly contended that his client could not be fixed with responsibility for their infliction. The prosecution, whose responsibility it remained for establishing features going in aggravation, did not distinctly submit that the infliction of injuries by co-offenders was an aggravating circumstance of the applicant's offending.

69 In this case, as we said, the prosecution did not seek to establish that the applicant was criminally liable for the victims' injuries. Indeed, it might be thought remarkable that a judge might feel free to take into account the intentional infliction of serious injury (punishable by 20 years' imprisonment) as a 'direct result' of a charge of false imprisonment (which carries a maximum penalty of 10 years' imprisonment). Yet the sentencing judge found that the injuries inflicted by the applicant's co-offenders were the 'direct consequences' of the applicant's false imprisonment of the victims.

70 The respondent submitted on appeal that his Honour was right to have so viewed the injuries. It submitted that they were the 'direct and foreseeable consequence' of the offences to which the applicant had pleaded guilty. To make good that contention, the respondent submitted that ss 5(2)(daa) and (db) of the Sentencing Act 1991, entitled the judge to take into account the injuries inflicted on the victims. We observe in passing that the prosecution did not rely upon these subsections before the sentencing judge to justify his resort to the injuries caused as a factor relevant to sentence.

In sentencing an offender a court must have regard to -

...

(daa) the impact of the offence on any victim of the offence; and

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence; ...

72 Subsections 5(2)(daa) and (db) do not support the proposition that a sentencing judge may take into account the injuries sustained by a victim arising out of offences for which the offender has not been charged or convicted. In the area of sentencing, the common law limited the consequences of an offender's acts for offences upon which he had been convicted to those as would reasonably have been foreseen by him or ought to have been foreseen by him. The statutory regime is more expansive than the common law in that 'the impact of the offence on any victim' must be taken into account,[29] as must 'any injury loss or damage resulting directly from the offence'.[30] The provisions do not contain a requirement of reasonable foreseeability for the purpose of sentencing.[31] That construction is fortified by the definition of victim in s 3 which explicitly removes the need for t the harm caused to a victim to be foreseeable by the offender.[32]

73 Section 3 of the Act defines 'victim' as follows:

A person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was foreseeable by the offender.

74 We turn to the meaning to be given to the words 'direct result' and 'resulting directly' in ss 3 and 5(2)(db) respectively. Although the term 'direct' has sometimes attracted criticism in the context of the legal notion of causation at common law, its inclusion obliges the court to give them due meaning.[33] In the Shorter Oxford Dictionary, the word 'direct' is said to mean 'straightforward, uninterrupted or immediate' or 'without intervening agency'.

75 The current state of authority discussed below is such that the word 'direct' or 'directly' in the Sentencing Act cannot be construed to mean coming in time immediately after the wrongful act.[34] While the word 'direct' undoubtedly qualifies the word 'result', it does not imply that there can be no step between the cause and the consequence.[35] In Fagan v The Crimes Compensation Tribunal,[36] Mason and Wilson JJ interpreted the expression 'by or as a result of an offence' in s 3(1) of the Crimes Compensation Act 1972 as referring to whether an injury was caused by an offence, thereby treating the direct results of the offence as things which 'although not immediate or proximate to the offence, were judged as a common sense question of fact to have been caused by the offence'. Nettle JA in Kaplan v Lee-Archer[37] considered that such reasoning informed the expression 'as a direct result' in s 85B of the Sentencing Act, the draftsperson having in mind the sense in which that expression was used in relation to injury in Fagan. In Kaplan, Buchanan JA (with whom Vincent JA agreed) said that the requirement that the result be 'direct' in s 85B of the Act does not mean that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause. Buchanan JA did not think 'direct' was synonymous with 'immediate', 'proximate' or 'obvious',[38] it excluding only those results which are but tenuously related to the crime in that their contribution is minor.

76 Thus although the injury need not arise at the time of or immediately after the actus reus of the offence or at a proximate time, to be a direct result, the prosecution must demonstrate such a temporal or other connection between the offence and the injuries as is sufficient to prove that the injuries resulted directly from the offence.

77 The Court, as presently constituted, considered the effect of sub-s 5(2)(daa), (da) and (db) of the Sentencing Act 1991, and discussed what were the 'direct' result of an offence in SD.[39] The Court stated that, as a matter of principle, 'where a judge is minded to impose a more severe sentence as a result of alleged injury, loss or damage described in a victim impact statement, and there is a dispute about its origin, the causal connection between the offending and the injury, loss or damage will need to be established beyond reasonable doubt'.[40]

78 The terms 'resulting directly' or 'direct result' postulate something more than a mere causal relationship between the offence on which the offender has been charged and convicted and the injury. What is required is more than a sine qua non. The full range of possible causes of injury to the victim are cut down to those which can be characterised as being a direct result of the offence and not something wider. The words 'result' or 'resulting' emphasises effect - the sequential as distinct from the causal nature of the required link.

79 Prosser offers a second meaning of 'direct' to that discussed in [74] above as that which follows 'in sequence from the effect of the defendant's act upon conditions existing and forces already in operation at the time, without the intervention of any external forces which come into active operation later'.[41] The injuries will not be a direct result of the defendant's acts if where another person's acts intervene, those latter acts may be regarded as the immediate cause of the injuries.

80 The resulting injuries in this case of the criminal acts of the applicant's co-offenders, being acts to which the applicant was not said to be complicit, are not injuries which are a direct result of the actus reus of the false imprisonment. Thus, insofar as the judge took the infliction of injuries arising from the co-offenders' assaults into account as aggravating circumstances of the offences of false imprisonment, he was wrong to do so. The judge's error vitiates the exercise of his sentencing discretion.

82 In light of the foregoing, we would re-sentence the applicant to be imprisoned for four years on charge 4 (false imprisonment of Demirkol); for three (3) years on charge 6 (false imprisonment of Salatas); and for two (2) years on charge 9 (false imprisonment of Trigg); and for two (2) years and six (6) months on charge 10 (prohibited person in possession of an unregistered firearm). The sentence on charge 4 is the base sentence. We would order that two (2) years and six (6) months of the sentence on charge 6, one year of the sentences on charge 9, and one year of the sentence on charge 10, be served cumulatively with each other and the sentence on charge 4 The total effective sentence is thus eight (8) years and six (6) months' imprisonment. We would fix the period of six (6) years and six (6) months before which the applicant is not to be considered eligible for release on parole.

83 For these reasons, the application for extension of time should be granted. The application for leave to appeal against sentence should be granted; the appeal should be allowed; and the appellant should be re-sentenced in the manner proposed above.

[1] False imprisonment is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years' imprisonment.

[2] Firearms Act 1996, s 5(1A). The maximum penalty was 15 years' imprisonment.

[3] Citing Pak v The Queen [2012] VSCA 4; Driver v The Queen [2012] VSCA 242.

[4] Saner v The Queen; Kamal v The Queen [2014] VSCA 134 (Redlich and Tate JJA) ('Saner').

[5] Saner, [137]-[138] (emphasis added). See also Murrell v The Queen; DPP v Murrell [2014] VSCA 337, [27]-[28] (Priest JA).

[6] The Firearms Act continues to treat the registration of firearms as a matter of legal significance. The Chief Commissioner is obliged to maintain a register: s 113. Section 8A provides for proof of registration in proceedings where a firearm does not have a serial number or the serial number has been defaced.

[7] Control of Weapons and Firearms Amendment Act 2012, s 1(b)(iii).

[8] Berichon v The Queen (2013) 40 VR 490 ('Berichon').

[9] Ibid 496-7 [27]-[28] (emphasis added).

[10] [2007] VSCA 252; (2007) 178 A Crim R 467 ('Graham').

[11] [2011] VSCA 84 ('Armistead').

[12] Sentences in the range of six to 18 months are ordinarily imposed.

[13] R v DJ [2007] VSCA 148, [7] (Buchanan JA).

[14] Hudson v R (2010) 30 VR 610, 624, [54] ('Hudson'); R v Rudd [2009] VSCA 213; (2009) 23 VR 444, 464, [88]; R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467, 470, [12] ('Graham') (Vincent JA).

[15] Armistead [2011] VSCA 84, [11]-[12].

[16] Citing DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191; DPP v Mirik [2007] VSCA 150.

[17] Emphasis added to this and the passages following.

[18] GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198, 214-5 [42]-[44].

[19] R v Djukic [2010] VSCA 65.

[21] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Satalich [2001] VSCA 106; (2001) 3 VR 231.

[22] See Cemeteries and Crematoria Act 2003, ss 114, 115 and 129.

[23] R v Storey [1998] 1 VR 359, 369; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[24] R v Li [1998] 1 VR 637; R v Lowe [2009] VSCA 268.

[25] R v Altham (1992) 62 A Crim R 126.

[26] Chow v DPP (1992) 28 NSWLR 593; R v Duong [1998] 4 VR 68; R v Campisi [2010] VSCA 183; Ristevski v The Queen [2011] VSCA 53; (2011) 31 VR 193.

[27] R v Newman and Turnbull [1997] 1 VR 146. See also R v Webb [1971] VicRp 16; [1971] VR 147; R v Hill [1979] VicRp 33; [1979] VR 311; R v Pecora [1980] VicRp 47; [1980] VR 499; R v Medcraft (1992) 60 A Crim R 181.

[28] DPP v Jones (a Pseudonym) (2013) 40 VR 267, 286 [80] (Redlich and Priest JJA).

[29] Subsection 5(2)(daa).

[30] Subsection 5(2)(db).

[31] Eade v The Queen [2012] VSCA 142; (2012) 222 A Crim R 93, 100 [31].

[32] Metrolink Victory Pty Ltd v Inglis (2009) 25 VR 633, 651 [84].

[33] Berichon v The Queen (2013) 40 VR 490; Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89, 105 [105] (Kirby J).

[34] Under insurance law the proximate cause rule applies where the word 'directly' is used: See Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited & 2 Ors (2005) ANZ Ins Cases 61-643; [2005] NSWCA 66.

[35] Boiler Inspection & Insurance Co of Canada v Sherwin-Williams Co of Canada Limited [1951] AC 319, 333 (Lord Porter).

[36] [1982] HCA 49; (1982) 150 CLR 666 ('Fagan').

[37] [2007] VSCA 42; (2007) 15 VR 405, 417 [58].

[39] SD v R (2014) 39 VR 487.

[40] Ibid 493 [22] (citations omitted).

[41] Hart and Honore, Causation in the Law, 165 (emphasis added).