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[2019] VSCA 132
General information, not legal advice.
Court of Appeal (Vic)
2019-06-14
Mr J, Priest JA
Original judgment source is linked above.
DPP v Butler [2019] VCC 407
CRIMINAL LAW - Sentence - Appeal - Attempted arson and reckless conduct endangering serious injury and relevant summary offences - Whether sentence of imprisonment of two years and one month with non-parole period of 18 months manifestly excessive - Whether principle of parity infringed - Leave to appeal refused.
1 When he committed offences of attempted arson and reckless conduct endangering serious injury, the applicant, Matthew Butler, was aged 29 years.[1]
2 Other involved parties included the applicant's then partner, Evangelina Christou ('Christou'), aged 27; John Vave ('Vave'), aged 29; and Kylie Blythman ('Blythman'), the applicant's sister, aged 19.
3 In short compass, on 11 November 2016, the applicant was involved in throwing a Molotov cocktail towards a stolen Audi Q3 parked in a suburban street in Cranbourne North, in an attempt to destroy it (charge 2 - attempted arson). This attempted petrol bombing had been arranged in order to destroy the Audi, which was connected to an incident on 20 October 2016 at the 'Rebels' motorcycle club premises in Dandenong South. Following the attempted arson, the applicant, Vave, Christou and Blythman fled from the scene in a Holden Commodore, pursued by police. When the pursuit commenced, Christou was driving. The applicant took over the driving of the Commodore, however, during the latter part of the pursuit (charge 3 - reckless conduct endangering serious injury). After the Commodore sustained tyre damage in Hampton Park, the pursuit ended. The occupants of the Commodore fled, but were arrested nearby.
4 Arising from these events, on 1 February 2019 - shortly before a trial listed to commence on 4 February 2019 - the applicant pleaded guilty in the County Court to attempted arson[2] and reckless conduct endangering serious injury.[3] He also pleaded guilty to the related summary charges of failing to stop on request[4] and driving whilst suspended.[5]
5 Following a plea, on 29 March 2019 the judge imposed a total effective sentence of imprisonment of two years and one month, with a non-parole period of 18 months, as reflected in the following table:
3 years and 3 months' imprisonment with a non-parole period of 2 years and 6 months
6 The applicant now seeks leave to appeal against sentence on two grounds as follows:
(a) the sentences imposed upon the Applicant and his co-offenders John Vave and Evangelina Christou for their involvement in the attempted arson;
(b) their total effective sentences; and
(c) the non-parole fixed in the Applicant's case; and
(d) the licence disqualification in the Applicant's case:
are such as to engender in the Applicant a justifiable sense of grievance.
(a) the individual term of imprisonment imposed [on] the reckless conduct endanger serious injury offence;
(b) the order for cumulation and resultant total effective sentence; and [sic]
(c) the non-parole period fixed; and
(d) the licence disqualification period:
are manifestly excessive.
7 In my opinion, neither ground has substance. For the reasons that follow, I would refuse leave to appeal.
9 Omid Said ('Said') was a member of the 'Last Kings' motorcycle club, members of which included Vave, Corey Hayes ('Hayes'), Matthew Leftley ('Leftley') and Amanda Cross ('Cross').
10 In the early hours of 12 October 2016, Hayes and Leftley committed an aggravated burglary at premises in Mount Eliza. They stole a motorcycle and keys for two Audis and a Nissan Patrol. On 16 October 2016, Hayes and Vave returned to the property. They stole a black Audi Q7 and a white Audi Q3 using the keys stolen four days earlier.
11 On 20 October 2016, Said, Hayes, Leftley and Vave drove to the chapter clubhouse of the Rebels located in a former factory in Dandenong South in the stolen Audi Q7, intending to destroy those premises by fire. At Said's direction, fuel was poured around the clubhouse. When the ignited fuel did not take, Hayes reversed the Audi Q7 into the roller door of the factory before ramming the vehicle into the roller door for a second time. Fuel was then poured over the vehicle and it was set alight. The fire then took hold, completely destroying the premises and five Harley Davidson motorcycles (and other valuable items) inside the clubhouse. The Audi Q7 was left amid the wreckage.
12 A little over three weeks later, in the morning of 11 November 2016, Hayes was found by police slumped, unconscious and drug-affected in the driver's seat of the white Audi Q3 stolen on 16 October 2016, outside the home address of Cross in Cranbourne North. Cross immediately recognised that police might link the Audi Q3 to the arson attack at the Rebels' clubhouse, and conveyed information up the chain of command, including to Said. As a result, a decision was taken that the white Audi Q3 must be destroyed, to prevent it being a source of forensic evidence to police.
13 Cross directed Vave to destroy the Audi Q3. Christou, Blythman and Vave met the applicant at his address in Cranbourne later in the morning of 11 November 2016.[7] The four then left in two vehicles, Vave driving a stolen Nissan Navarra and the applicant driving a red Holden Commodore (registered to Christou's mother, but bearing stolen registration plates). Shortly afterwards, the two vehicles were parked a short distance from the Audi Q3.
14 The applicant and Vave got out of their vehicles and walked towards the Audi. One of them - the prosecution could not establish that it was the applicant - threw an Molotov cocktail at the Audi. The improvised petrol bomb landed close to two police officers who were keeping the Audi under observation pending its removal. Although, fortunately, the device did not ignite, the bottle broke and the police were splashed with petrol, causing them both to fear for their lives. These events founded charge 2, attempted arson. (The prosecution did not allege that the applicant was involved in the attack on the Rebels' clubhouse, or that he knew the reason for the intended destruction of the Audi.)
15 Vave, Christou, Blythman and the applicant then fled in the Commodore. Christou drove, the applicant was in the front passenger seat, and Vave and Blythman were in the rear. The Commodore, driven erratically by Christou, was pursued by police and reached speeds of 150 kph in an 80 kph zone. At some point, the applicant, whose licence was suspended, took over the driving (summary charge of driving while suspended), and continued to do so with police in pursuit (summary charge of failing to stop on request).
16 The applicant drove along Narre Warren-Cranbourne Road, then onto the wrong side of the road towards oncoming traffic. He turned left onto Pound Road, performed a 'U' turn and then headed towards Hallam Road. In the course of the pursuit, the Commodore had sustained substantial damage to one of its tyres which began to severely affect the applicant's driving. Attempting to perform another U turn in Hampton Park, the Commodore collided with a retaining wall, and came to a complete stop. These events founded charge 3, reckless conduct endangering persons.
17 After the collision, all of the Commodore's occupants fled, but the applicant and Blythman were soon found hiding in the backyards of neighbouring properties. The applicant was arrested, and, when interviewed, exercised his right not to answer police questions.
18 The first ground complains (in one way or another) of disparity between the applicant's sentence, and those imposed on Christou and Vave. In my opinion, the complaint is without substance.
19 In order to understand how the first ground is put, it is necessary to set out the sentences imposed upon the applicant's co-offenders.
20 On 8 May 2017, in the Melbourne Magistrates' Court, Christou was sentenced to a combination of imprisonment and a community correction order ('CCO'), according to the following table:
12 month CCO (with conviction) with supervision, and treatment and rehabilitation conditions
105 days' imprisonment and a 12 month CCO with supervision, and treatment and rehabilitation conditions
21 Some months later, on 19 December 2018, Vave was sentenced in the County Court (by the same judge who sentenced the applicant) as follows:
8 years and 9 months' imprisonment with a non-parole period of 6 years and 9 months
22 Although the ground does not refer to them, I note that on 1 February 2019, Cross pleaded guilty to attempting to pervert the course of justice. (Due to health problems, she is yet to be sentenced.) Blythman pleaded guilty in the Magistrates' Court to one charge of theft of a motor vehicle and one charge of contravening a conduct condition of bail, and was sentenced to a 12 month CCO (with conviction).
23 Vave's three charges of theft (charges 1, 2 and 5) related to the thefts of the two Audis and the Nissan Navarra; the charge of arson (charge 3) related to destruction of the Rebels' premises; and the charge of attempting to pervert the course of justice (charge 4) related to the throwing of the Molotov cocktail intending to destroy the Audi Q3.
24 Christou's charge of reckless conduct endangering serious injury related to her driving in the first stage of the police pursuit.
25 Before turning to the contentions of the parties, it is as well to refer to the guiding principles. They were usefully summarised in Collins:[8]
The principles governing parity are well-established.[9] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed.[10] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[11] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[12]
26 Counsel for the applicant submitted that the sentence imposed on the applicant should have reflected his lesser role in the offences. His role in the attempted arson, so it was submitted, was peripheral, and his driving was far less serious than Christou's.
27 In endeavouring to distinguish the applicant's position from that of his co-offenders, counsel for the applicant submitted that the applicant, unlike Vave or Cross:
28 Further, counsel for the applicant argued that Vave and Cross were active members of an organised criminal syndicate who utilised subordinates, intermediaries and associates for criminal activities (the applicant being one of those), and their intention was to destroy evidence that would connect them, and others, to serious criminal activity (to which the applicant was in no way connected). Counsel also submitted that the offence of attempting to pervert the course of justice - with which the applicant was not charged - is an offence which strikes at the heart of the administration of criminal justice.
29 So far as the charge of reckless conduct endangering serious injury is concerned, counsel submitted that:
30 Counsel for the applicant also submitted that, although it is conceded that the applicant has a number of relevant priors, Vave also had relevant priors from his time living in New Zealand. And while counsel for the applicant accepted that the applicant is older than Christou and has a number of relevant prior convictions and a poor driving history, it was contended that Christou also has a poor driving and criminal history, was on a CCO at the time of offending and only had a learner's permit.
31 Counsel for the applicant submitted that, notwithstanding the factors identified, for essentially the same conduct the applicant received a sentence of imprisonment for attempted arson (18 months) which was two thirds of that imposed on Vave (27 months) for the more serious offence of attempting to pervert the course of justice. Furthermore, the actual term of imprisonment imposed on Christou for reckless conduct endangering serious injury (105 days) 'was only a quarter of the term of imprisonment' that the applicant received, and Christou's CCO was therapeutic only, without any punitive conditions attached. Moreover, counsel submitted, the applicant was disqualified from driving for a period twice as long as Christou.
32 Notwithstanding these submissions, I consider that the applicant's more significant criminal history in the first place provides a sound basis upon which to distinguish his circumstances from those of both Vave and Christou.
33 The applicant has an unenviable criminal record. Included among his prior convictions and findings of guilt are: assault in company and unlawful assault (2005); wilfully damaging property and handling stolen goods (2006); armed robbery and intentionally causing injury (2009); driving whilst suspended and other traffic offences (2011); aggravated burglary, attempting to obtain property by deception, dealing with the proceeds of crime, theft, carrying a prohibited weapon, possessing cannabis and methylamphetamine and failing to answer bail (2013); intentionally damaging property, obtaining property by deception and attempting to obtain property by deception, possessing a prohibited weapon and possessing methylamphetamine (2014); contravening a conduct condition of bail (2015); theft, negligently dealing with the proceeds of crime, dishonestly undertaking the retention of stolen goods, committing an indictable offence whilst on bail, possessing a prohibited weapon, possessing cartridge ammunition, failing to answer bail, contravening a conduct condition of bail, stating a false name and false address when requested and unlicensed driving (2016). Sentences imposed upon him have included fines (with and without conviction); suspended sentences of imprisonment (breached on more than one occasion); and sentences of imprisonment.
34 Vave's criminal history, by way of comparison, is far more limited than the applicant's. Thus, he has limited prior convictions in New Zealand for burglary, theft, receiving stolen goods, possessing drug use apparatus and breaching a home detention condition (2009), and for driving offences (2013).
35 Further, although Christou has a bad driving record, her other criminal convictions and findings of guilt are nowhere near as extensive (or, generally, as serious) as the applicant's. She has been dealt with by way of traffic infringement for exceeding the prescribed concentration of alcohol (2006); exceeding the speed limit (2012, 2013 and 2014); and disobeying a traffic control signal (2016); and in the Magistrates' Court (and on appeal, the County Court) for driving in breach of a permit condition, using an unregistered vehicle and failing to display 'L' plates (2014 and 2016). She also has prior convictions and findings of guilt for trafficking methylamphetamine and dealing with the proceed of crime (2014); possessing methylamphetamine (2015); and handling stolen goods, possessing 1,4-butanediol and MDMA, weapon related offences and bail offences (2016). She has been fined, received community correction orders and a period of imprisonment (representing time served on remand).
36 In my view, the applicant's far more extensive and serious criminal record bore directly on his moral culpability, his prospects of rehabilitation, his dangerous propensity (and the community's need for protection), and the increased importance of specific deterrence as a factor in imposing sentence upon him.[13] As I have indicated, his more significant criminal history provided a proper basis upon which to distinguish his case from those of Vave and Christou.
37 So far as the applicant's driving is concerned - notwithstanding submissions to the contrary by the applicant's counsel - I consider it to have been objectively more dangerous than Christou's, providing a legitimate basis upon which to distinguish his sentence from that of Christou. Although it may be acknowledged that Christou drove at a very high speed, after the applicant took over the driving of the Commodore, he drove onto the wrong side of the road towards oncoming traffic. Further, he was at the wheel when the vehicle - being driven with a damaged tyre - collided with a retaining wall, coming to a complete stop.
38 Finally, Vave pleaded guilty to attempting to pervert the course of justice, an offence which (in effect) incorporated the attempt to burn the Audi Q3. The sentence imposed on Vave for this offence - a third greater than that imposed on the applicant for attempted arson - might be thought to be adequate recognition of the greater available maximum penalty for attempting to pervert the course of justice. Further, when imposing a total effective sentence on Vave - for offences including the arson of the clubhouse premises and the thefts of the Audis - the need to adhere to the principle of totality undoubtedly had an effect on the fixing of the individual sentences for the different charges that he faced.
40 The complaint of manifest excess in ground 2 relates only to the sentence imposed on charge 3, reckless conduct endangering serious injury, and the order for cumulation (and, consequentially, the total effective sentence and non-parole period).
41 In my view, the contention that the sentence is manifestly excessive is wholly untenable. Indeed, in the circumstances, I regard the sentence imposed on the applicant on charge 3 as being extremely lenient, if not inadequate.
42 The applicant's was appalling driving, by a man with a bad record, for the express purpose of evading police. Driving such as the applicant's, putting the public in danger so as to avoid facing the consequences of other criminal activity, is to be
strongly condemned and severely punished. Furthermore, general deterrence is of prime importance in a case such as this. People tempted to drive recklessly and endanger the public in order to evade police must know that when caught they will receive stern punishment.
43 Not only do I regard the individual sentence imposed on charge 3 as being lenient, but I consider that the cumulation of six months ordered as being modest. The total effective sentence produced cannot fairly be described as excessive, let alone manifestly so. In point of fact, a more severe sentence may well have been appropriate.
45 Neither proposed ground of appeal is reasonably arguable.
47 I agree with the reasons and the orders proposed by Priest JA.
[1] His date of birth is 13 September 1987.
[2] Crimes Act 1958, ss 321M, 197(1) and 197(6). By virtue of 321P of the Crimes Act 1958, the maximum penalty is 10 years' imprisonment.
[3] Crimes Act 1958, s 23. The maximum penalty is 5 years' imprisonment.
[4] Road Safety Act 1986, s 59(1)(a). The maximum penalty is 10 penalty units.
[5] Road Safety Act 1986, s 30(1). The maximum penalty is 2 years' imprisonment or 240 penalty units (or both).
[6] Charge 1 on the indictment was a charge of attempting to pervert the course of justice against Amanda Cross.
[7] In his reasons for sentence the judge stated incorrectly that the parties had met at Vave's address.
[8] Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations as in original).
[9] See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]-[25] (Weinberg and Kyrou JJA).
[10] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[11] Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).
[12] Hilder v The Queen [2011] VSCA 192, [38]-[39] (Maxwell P).
[13] See R v O'Brien and Gloster [1997] 2 VR 714, 718.
Butler
The Queen [2019] VSCA 132
(1984) 154 CLR 606
(1997) 189 CLR 295
(2011) 244 CLR 462