Bidong v The Queen [2022] VSCA 33

1 On 30 January 2018, at approximately 7:30 pm, the applicant (then aged 24), together with a number of other unknown persons, committed a robbery against a member of the public who was walking towards a train station, on his way home from work. Although the applicant did not play a direct role in the physical assault that ensued, force was used, and the robbery and assault has particularly affected the victim's psychological well-being.

2 The applicant pleaded guilty to one charge of robbery, and one charge of failing to answer bail in relation to this incident. On 30 April 2021, following reasons for sentence,[1] he was sentenced as set out in the table below:

3 years and 4 months with a non-parole period of 30 months

3 The applicant failed to file an application for leave to appeal within the 28 days provided by s 279 of the Criminal Procedure Act 2009. However, on 15 October 2021 (some 20 weeks after the prescribed time elapsed) he filed an application for extension of time to file such application, and also provided the Court with a proposed application for leave to appeal.

4 The proposed application for leave to appeal contained two proposed grounds. However, at the hearing of his application, he was given leave to abandon proposed ground 2,[4] with the result that the applicant relies solely upon the following proposed ground:

1. The Learned Sentencing Judge failed to sufficiently moderate the sentence of imprisonment that was imposed on the charge of Robbery having regard to the sentencing principle of totality.

Particulars of Ground 1:

(i) The Applicant had been sentenced on 22nd July, 2020 to a term of imprisonment in relation to other offending.

(ii) The term of imprisonment imposed by the Learned Sentencing Judge on 30th April, 2021 is to be served entirely cumulatively upon the earlier term of imprisonment.

(iii) The combined effect of the terms of imprisonment imposed on 22nd July, 2020 and 30th April, 2021 is productive of a total term of imprisonment that is more severe than the objective circumstances of the two offences warrants.

(iv) The Learned Sentencing Judge should have exercised the sentencing discretion in favour of the imposition of a lesser term of imprisonment than was in fact imposed on 30th April, 2021 in order that the total effect of the terms of imprisonment was proportionate to the objective gravity of the offending.

(v) The combined effect of the two sentences of imprisonment that have been imposed are productive of a term of imprisonment that offends against the sentencing principle of totality.

5 As emphasized by this Court in Madafferi v R, time limits exist for sound reasons.[5] Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition.[6] The court, however, has a broad discretion whether to grant an extension of time, and will generally consider the reasons for the delay and the merits of the proposed appeal.[7]

6 For reasons given below, we have determined that the application for an extension of time will be refused in this case, having regard to the inadequate explanation for the significant delay, and the very poor prospects of success of the proposed appeal.

7 The application for an extension of time was supported by an affidavit of Gemma Calgaro, of Gallant Law, affirmed on 20 October 2021. In brief, Ms Calgaro declared the following facts:

• the applicant was sentenced on 30 April 2021;
• Ms Calgaro agreed to represent the applicant on 28 May 2021, after he dispensed with the services of his previous solicitors;[8]
• Ms Calgaro contacted the previous solicitors on 23 June 2021 and the applicant's plea counsel on 29 June 2021, and, on 30 June 2021, she received a memorandum of advice on the merits of an appeal dated 4 May 2021 which counsel had sent to the previous solicitors. Over the following days, Ms Calgaro discussed the merits of an appeal against sentence with counsel;
• an application was lodged with Victoria Legal Aid for the extension of funding for the proposed appeal on 4 July 2021;
• Victoria Legal Aid confirmed the applicant's funding on 7 October 2021;
• the proposed application for leave to appeal, written case, and application for extension of time were prepared on 12 October 2021.

8 As highlighted by the respondent, there are unsatisfactory aspects of this affidavit. In particular, there is no explanation as to why the former solicitors (who were provided with timely advice from counsel) could not file the application earlier. Nor was there any explanation for the absence of progress between 28 May 2021 and 23 June 2021.

9 However, it remains to consider the prospects of success of the proposed appeal which will often be a significant factor in determining whether to grant an extension.[9] It will be futile to grant an extension of time where it is clear that the proposed appeal is doomed to fail.

10 In his sentencing remarks, the sentencing judge addressed the offender and described the circumstances of the offending as follows:[10]

On 30 January 2018, at approximately 7.30 pm, the victim [J] was walking down Clow Street Dandenong towards the Dandenong train station. You and another male approached J and asked him to stop. He refused and attempted to continue walking towards the station. You and the other male pushed the victim off the street whereupon two other males emerged from a laneway, grabbed the victim and together you walked him up a set of stairs to where a large group of persons were gathered.

The victim was taken to a corner where he was kicked and punched by a number of males. A female also joined the assault hitting the victim with a stick. The victim was also struck by a male holding a bottle inside of a bag. This caused the victim to fall to the ground and lose consciousness for a short period of time.

When the victim regained consciousness he was bleeding and felt people going through his pockets. A number of items were stolen from him including an Apple iPhone, an Asus laptop, an external hard drive, various USBs, a wallet containing various cards and a pair of sunglasses. He was then pushed down the stairs towards Clow Street and told to call an ambulance. Once on the street, the victim was assisted by two persons who were not involved in the robbery.

Police and an ambulance were called and the victim was taken to the Dandenong hospital. His injuries included a fracture of the left zygomatic arch, haematoma on his forehead and a 5 cm laceration over his anterior scalp.

On 1 February 2018 police provided to Protective Service Officers (PSOs) a description of one of the males who first approached the victim. In the evening you were observed by PSOs in the Dandenong area as matching the description provided by police. The PSOs approached you and obtained your identification. They took photographs of you. The photographs were provided to police.

On 12 February 2018 the victim attended the Dandenong Police Station and identified you from a photo-board. You were arrested on 5 April 2018 and participated in a recorded interview with police where you denied any knowledge of the incident or the victim. During the interview you were asked if you would be willing to participate in an identification parade, which you declined.

You were charged on summons but failed to appear at a mention on 18 June 2018. A warrant was issued for your arrest. You were arrested on 21 September 2018 and bailed to appear on 7 November 2018. You again failed to appear as required by your bail undertaking. It is this latter failure that forms the basis of the summary charge.[11]

11 The sentencing judge commenced by setting out the applicant's 'extensive' criminal record. His Honour identified that the applicant had appeared before the courts on some 18 occasions before the commission of the subject offending.[12] The applicant's record included charges of robbery, attempted robbery, and failure to answer bail.[13]

12 Relevantly, the sentencing judge also identified a subsequent conviction - on a charge of affray- for conduct occurring on 21 December 2017. The applicant was sentenced for this offence by her Honour Judge Carlin on 22 July 2020, to a term of imprisonment of 22 months with a non-parole period of 12 months. His Honour recorded that this subsequent conviction was relied on by the applicant as having relevance to the issue of totality.[14]

13 The sentencing judge considered J's victim impact statement. His Honour considered that the robbery and physical assault had had a 'significant impact upon [J's] physical and psychological well-being',[15] and recorded the following:

... As a result of your offending [J] stated he cannot walk freely as he did before the incident for fear of another attack. He was traumatised by the incident and has suffered depression, anxiety, and post-traumatic stress disorder. He undertook psychological counselling for a number of months following the incident.

[J] sustained a broken jaw and an injury to his forehead as a result of the assault upon him. He is conscious of the scar to his forehead when he is out socially. He stated he has been told his injuries are permanent and no further treatment is required apart from psychological treatment. Furthermore, as a result of the incident, he was absent from work for a period of two months and incurred expenses in travelling to and from his psychological counselling sessions.

[J] stated that since the incident his life has changed and he lives in fear of another attack. He has ongoing psychological issues and his relationship with others, including his family, has been compromised.[16]

14 The sentencing judge then considered the personal circumstances of the applicant.[17] He was aged 24 at the time of the offending, and 27 at the time of sentencing. He was born in Sudan in August 1993, and fled the civil war in that country before his family was accepted to travel to Australia in 2004. He does not know his father, but has five half-brothers and two half-sisters. He reported having struggled to assimilate and understand the new culture in which he was living, and he had been largely unemployed since leaving school in year 10. As the eldest sibling he was, in effect, forced into the role of father which added to the pressure placed upon him.

15 The sentencing judge described the applicant's problematic relationship with alcohol, identifying that much of the applicant's trouble with the law occurred whilst he was intoxicated.[18] He had not sought treatment for drinking problems outside of jail. Clinical Psychologist, Alison Mynard, diagnosed a generalised anxiety disorder with panic, and a dysthymic disorder.[19] Without targeted interventions, her view was that the applicant's risk of reoffending was moderate to high, and that the applicant risks relapsing into alcohol abuse.

16 The sentencing judge considered the applicant's sentencing submissions. He recorded the submission of the applicant's counsel that the applicant should not be sentenced beyond his pre-sentence detention (of 358 days), in circumstances where he had been in custody since 28 November 2018, a period in total of almost 30 months at the time of sentencing.[20] Alternatively, counsel submitted that it was open to impose a combined sentence of jail and a community correction order.

17 The sentencing judge then proceeded to outline his sentencing considerations. He first noted the 15 year maximum penalty for robbery, highlighting the seriousness of the offence.[21] He made the following observations:

The robbery in this instance involved the use of actual force on the victim before and at the time you and the others stole from him. The force used before the stealing included pushing the victim off the main street and walking him up the stairs to where a group of persons were gathered. Once up the stairs he was assaulted by the group and his belongings were stolen.

In the course of the assault two persons from the gathered group used weapons to strike the victim. As is clear from the prosecution opening, which was not disputed, when the victim awoke after losing consciousness, he could feel people going through his pockets and stealing his iPhone and cash. Thus, the robbery was continuing even after the weapons were used.

Whilst you may not have played a direct role in the physical assault,[22] the use of force was nevertheless part of the offence to which you pleaded guilty. Force, by way of the assault upon the victim, was used in order to steal from him.

I accept you do not fall to be sentenced for any offence of which you are not charged and in view of the prosecution concession, I shall sentence on the basis that the use of the stick and bottle was beyond what you were anticipating.[23]

18 His Honour pointed towards a number of factors marking the seriousness of the offending, stating:

The seriousness of your offending is marked by a number of factors. Yours was brazen conduct committed in the company of others. It was a premeditated offence. You targeted an unknown male as he was walking towards the train station on his way home from work. He was pushed off the main street into a laneway where two other males emerged. You and the others then walked him up the stairs where he was confronted by a large group of persons. He was greatly outnumbered. The victim was then subjected to force and his property stolen. He was then pushed back down the stairs and callously told to call an ambulance. I have no doubt this was a terrifying experience for the victim.[24]

19 His Honour considered it to be a 'serious instance of robbery', neither at the upper end nor the lower end of the range.[25] The applicant's moral culpability was also high and there was nothing that reduced it. In respect of the applicant's intoxication his Honour said:

The fact that you were intoxicated, in my opinion, aggravates your culpability. As you told Ms Mynard, many times you or others have been hurt because of your drinking. You knew your drinking gets you into trouble. You knew others have been hurt by you as a result of your drinking and yet you continued to drink heavily.[26]

20 His Honour also had regard to the significant impact his offending had upon the victim, who continued to live in fear of another attack, was traumatised, and needed psychological treatment to overcome the impact of the offending.[27]

21 His Honour took the applicant's guilty plea into account, and considered that he was entitled to a moderation of sentence due to the plea's utilitarian benefits, but it could not be called an early plea of guilty, and did not evidence any remorse.[28] The sentencing judge could not find any evidence of remorse, and was not satisfied that the applicant had accepted responsibility for the offending.[29]

22 The sentencing judge also considered the applicant's prospects of rehabilitation to be 'guarded', and that this would remain so until the applicant obtains psychological treatment and desists from alcohol abuse.[30] However, the support of his family and his relative youth weighed somewhat in his favour.

23 The applicant was assessed for a community correction order, but was considered a high risk of general recidivism.[31] He advised the assessing officer that his biggest issue was alcoholism. While in custody he had not been able to consume alcohol, but had nevertheless failed urine analysis tests on five occasions which identified that he had been using buprenorphine whilst in custody.

24 His Honour identified that general deterrence, denunciation and protection of the community were the principal considerations in the sentence to be imposed.[32] There was also a strong need for the sentence to deter the applicant from future offending.[33] Regard was had to the applicant's many previous convictions for offences of dishonesty and violence. His Honour stated that the applicant should understand that if he continues to offend in this way he would be met with increasingly harsher punishment.

You have been in custody since 28 November 2018. Mr Pearson submitted there should be moderation of the sentence to be imposed having regard to the totality principle.

There is authority for the proposition that totality must be applied wherever a prisoner is being sentenced for an offence whilst he is still serving a sentence for some other offence. A situation similar to yours was considered by the Court of Appeal in Pasinis v R. There the appellant had already served a full sentence of two years and six months and remained in custody whilst awaiting the hearing of other charges for which he was later sentenced. At paragraph 63, Neave JA and Kyrou AJA, as his Honour then was, stated:

'The totality principle requires that where an offender is being sentenced to multiple terms of imprisonment, or is otherwise to serve multiple sentences, the sentencing judge should ensure that the total sentence remains 'just and appropriate' for the whole of the offending. The principle applies to the fixing of both the head sentence and the non-parole period.'

While I am not able to order any concurrency with the sentence imposed by Judge Carlin as it has since expired, I consider I may have regard to the principle of totality in this case in a general sense taking into account the fact you have continuously been in custody since 28 November 2018; that her Honour's sentence has only recently expired; you have remained in custody on remand ever since; and the closeness in time of this offending with that on which her Honour sentenced you. These are all part of your circumstances which are required to be taken into account. Your sentence will be moderated having regard to the totality principle.

I was informed by Mr Teo, and this was not disputed by your counsel, that the sentence imposed by Judge Carlin expired on 9 January 2021.[34]

26 His Honour also considered matters resulting from COVID-19 restrictions,[35] and the current sentencing practice - deriving some assistance from a review of a number of cases referred to in the Victorian Sentencing Manual for the offence of robbery.[36]

27 Before imposing sentence, the sentencing judge concluded as follows:

I do not accept your counsel's submission that you should be sentenced to a term of imprisonment that does not exceed your pre-sentence detention. I have also decided against placing you on a community correction order. I have come to this conclusion as the purposes for which the sentence is to be imposed cannot, in my opinion, be met with the making of a community correction order. I consider your offending is too serious and the need for deterrence, denunciation and protection of the community cannot be achieved with the making of a community correction order or even a combination order pursuant to s 44 of the Sentencing Act 1991.[37]

28 In written submissions, the applicant relied upon the totality principle, which is related to the proportionality principle (citing R v Smoker[38]). The applicant highlighted that he had been sentenced on 22 July 2020 by Judge Carlin to 22 months' imprisonment (with a non-parole period of 12 months), which had been served by the time of the present sentencing.

29 The applicant submitted that it was incumbent upon the sentencing judge to take into account that existing sentence so that the total period to be spent in custody 'adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'[39]

30 The applicant contended that the combined effect of the two sentences was a term of imprisonment of 4 years and 8 months, which is not fairly representative of the totality of criminality involved in all of the offences to which that total period is attributable. It was submitted that the sentencing judge gave 'scant treatment' as to the issue of totality.

31 In oral submissions, counsel for the applicant did not abandon the written submissions, but submitted that proposed ground 1 was really about whether totality was sufficiently taken into account (not whether the totality principle was overlooked altogether). This was consistent with the language of proposed ground 1 that the sentencing judge failed to 'sufficiently moderate'[40] the sentence. As explained below, the proposed ground was, in substance, a complaint that the sentence was manifestly excessive.

32 Counsel for the applicant particularly focused on the fact that no reason was giving for the imposition of the non-parole period of 2 years (being approximately 70% of the head sentence). He cited R v VZ, where the Court found that a failure to give reasons invites scrutiny if the non-parole period is unusual, either by comparison with other cases, or having regard to the facts of the instant case or the course of the plea.[41] Counsel for the applicant submitted that the failure to provide any reason in this case invited scrutiny, in circumstances where the applicant had spent a considerable length of time in custody.

33 This Court in Sayer v R,[42] explained the proper application of the totality principle in cases where an earlier sentence has already been spent. Such application does not proceed by seeking to identify what total sentence would have been imposed had all the offending been before the court at the time when the person was first sentenced, and then making adjustments to that sentence.[43] Rather, the prior sentences and time spent in custody are part of the applicant's circumstances which are required by the principle of totality to be taken into account.[44]

34 The sentencing remarks reveal an active consideration of the totality principle in accordance with Sayer. In particular, the sentencing judge expressly says that '[y]our sentence will be moderated having regard to the totality principle'.[45] There is no failure to have regard to the totality principle. It is apparent that his Honour engaged in a careful and considered treatment of the matter.

35 Rather, consistent with the oral submissions, proposed ground 1 is, in substance, a complaint concerning manifest excess (although not properly framed as such[46]). As counsel accepted, the contention was that the sentence was not 'reasonably open' if proper weight had been given to the totality principle.[47]

36 Such complaint is, however, wholly without substance.

37 As identified by the sentencing judge, this was serious offending for a number of reasons. These included that it was premeditated, committed in company, targeted an unknown member of the public, and involved force. As his Honour correctly recognised, general deterrence, denunciation and protection of the community were principal considerations in sentencing for acts of random street violence such as this. Such violence has devastating and enduring consequences.[48]

38 The moral culpability of the applicant was also high, in circumstances where the sentencing judge correctly identified that intoxication aggravated that culpability (given the applicant already knew that drinking got him into trouble).[49] Although the applicant was relatively young, and there was a plea of guilty, it was a late plea. There was also no remorse and only 'guarded' prospects of rehabilitation in circumstances where there was a substantial and relevant criminal record.

39 The maximum penalty for robbery is 15 years. Having regard to the unchallenged findings as to the seriousness of the offence and the applicant's high culpability, the sentence of two years and nine months must be regarded as moderate. It is clear, in our view, that the judge gave real weight to totality, as well as to the other mitigating factors.

40 Insofar as the oral complaint was made that the non-parole period was too high, the complaint was also unmeritorious. For reasons given already, the head sentence was well open to the sentencing judge. Given that a head sentence is to be determined before any non-parole period can be fixed, it is self-evident that the appropriate moderation of a head sentence will be reflected in the non-parole period.

41 The case of R v VZ also does not assist the applicant. In that case, the Court recognised that the purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of rehabilitation through conditional freedom.[50] In such circumstances, the prospects of rehabilitation are almost always a significant consideration.[51] In the light of these well-established principles, the Court considered that the non-parole period (of approximately 80%) in that case was 'unusual', and warranted scrutiny.[52] This conclusion was made, having regard to the specific finding that it was unlikely that the applicant would offend again, such that no question of specific deterrence arose for consideration.

42 The case of R v VZ is clearly distinguishable from the present case where a non-parole period of approximately 70% is unexceptional, and where there was a strong case for specific deterrence having regard to the applicant's prior history. The extensive criminal record and 'guarded' prospects of rehabilitation amply support the non-parole period fixed in this case.

43 The applicant is therefore unable to demonstrate that the sentence imposed was not reasonably open by reason of a failure to have regard to the totality principle (or otherwise).

44 The merits of the proposed appeal are very poor.

45 When the very poor prospects of success are taken with the inadequate explanation for the delay, it is in the interest of justice that the application for an extension of time should be refused.

[1] [2021] VCC 511 ('Sentencing Remarks').

[2] Crimes Act 1958 s 75.

[3] Bail Act 1977 s 30(1).

[4] Proposed ground 2 was that the Learned Sentencing Judge erred in taking aspects of the victim impact statement of the victim into account in circumstances where the Applicant was not responsible for the injuries sustained by the victim.

[5] [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) ('Madafferi').

[6] Ibid [11] (Priest, Hansen and Coghlan JJA).

[7] Ibid [11] (Priest, Hansen and Coghlan JJA).

[8] The applicant claimed that he had instructed his previous solicitors to lodge an appeal.

[9] See Madafferi [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[10] The applicant did not challenge the Sentencing Remarks insofar as they provided a summary of the circumstances of the offending.

[22] The prosecution had made a concession in paragraph 9 of the Summary of Prosecution Opening that: 'the accused may not have played a direct role in the assault', and 'the use of force used in the commission of the robbery, namely the use of a stick and bottle, may have gone beyond what the accused was anticipating'.

[23] Sentencing Remarks, [46]-[49].

[34] Ibid [61]-[64] (citations omitted).

[38] (2016) 126 SASR 201, 223 [74] (Lovell and Hinton JJ); [2016] SASCFC 114.

[39] Citing R v Gordon (1994) 71 A Crim R 459, 466 (Hunt CJ), quoted in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J); [1997] HCA 26. See also DPP v Bowen [2021] VSCA 355.

[41] R v VZ (1998) 7 VR 693; [1998] VSCA 32.

[42] [2018] VSCA 177 ('Sayer').

[43] Ibid [71], [74] (Whelan and McLeish JJA).

[44] Ibid [78] (Whelan and McLeish JJA).

[46] See discussion in Kulafi v R [2021] VSCA 369, [50] (Maxwell P and Niall JA) as to the importance of properly advancing structured arguments in support of a manifest excess ground.

[48] See discussion in DPP v Russell [2014] VSCA 308; (2014) 44 VR 471, particularly 473 [1]-[6] (Maxwell P, Weinberg and Santamaria JJA) which also highlights the important role of publication of prison sentences to those at risk of offending in this way - young men in particular; [2014] VSCA 308.

[49] R v Martin [2007] VSCA 291; (2007) 20 VR 14 [20]-[30]; [2007] VSCA 291.

[50] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698-9 [18] (Callaway JA), 700 [22] (Batt JA); [1998] VSCA 32.

[52] Ibid 694 [2] (Phillips CJ), 696 [10], 697 [13] (Callaway JA), 700 [22] (Batt JA).