Dice v The Queen [2017] VSCA 310

1 On 28 June 2017, the applicant was sentenced to a term of 15 months' imprisonment on a single charge of conspiracy to assault. A non-parole period of 8 months was fixed. The maximum penalty for that offence is 5 years' imprisonment.

2 The applicant now seeks leave to appeal against sentence. There are two proposed grounds. They are as follows:

1. That the learned sentencing judge erred in that he found insufficient disparity between the applicant and his co-accused.
2. That the sentence is manifestly excessive in all the circumstances.

For reasons that follow, we would grant leave to appeal, allow the appeal instanter, and set aside the sentence imposed below. In lieu thereof, we would sentence the applicant to a term of four months' imprisonment.

3 In 2015, Echo Task Force conducted an investigation named 'Operation Irrevocable'. This operation was solely focused on the Ringwood Chapter of the Finks Motorcycle Club ('the Club') that operated at 8 Yallourn Parade in Ringwood ('the premises').

4 A major figure in the conspiracy with which the applicant was charged was one John Napolitano, the President of the Club at that time.

5 As part of the investigation, and which ultimately formed some of the prosecution evidence against the applicant, there were recorded a series of conversations from the premises. The meetings there took place every Wednesday evening. They were referred to as 'Church Meetings'.

6 It was at these 'Church Meetings' that various criminal activities were discussed. The applicant's offending, though charged as a single conspiracy, involved two separate victims. The first was a man named Hardwick, a 'patched' member, who had been exiled from the Club in October 2015. The second was a man named Balsdon, who had carried out plastering and carpentry works at the premises in March/April 2015.

7 When Balsdon approached the Club for payment, in April 2015, (which he did on several occasions) he was assaulted by unidentified members. He suffered facial fractures. In July 2015, his car was destroyed by a Molotov cocktail. Some 10 days or so later, his house was damaged, also by a Molotov cocktail. The damage was considered minor.

8 It should be noted that the sentencing judge made it clear, during the plea hearing, that the applicant's sentence on the charge of conspiracy would not relate to any actual assaults that had previously been carried out, or to any property damage that had been done to Balsdon's car or house.

9 On 14 October 2015, the applicant, along with eight other members of the Club, attended the premises for a meeting where discussions were had relating to Hardwick. It was confirmed that Hardwick was no longer a member of the Club, that money was sought from him, and that he had to be located and, if necessary, assaulted. It was not suggested by the prosecutor that the applicant had actively contributed in any way to this discussion on this occasion.

10 The reference to 'money' was for an 'exit fee' of $10,000.00 that all ex-members of the Club were liable to pay. The discussion relevant to the offending occupied about an hour. It was covertly recorded by police.

11 On 11 November 2015, a second meeting was convened at the premises where further discussions were had relating to both victims. The applicant was not present on this occasion. The charge brought against him did not rely upon anything said at that meeting, in his absence.

12 On 18 November 2015, the applicant, along with 10 other members of the Club, attended at the premises. Further discussions were had about both victims. The group again discussed the need to locate Hardwick, in order to recover money from him. There was also further discussion regarding finding Balsdon. On this occasion, the applicant contributed to that discussion by stating, 'Do you know what he looks like? Can you get a photo? I've got mates up in Bonnie Doon' and 'If you can get me a photo I can go up there and show a few mates and let them know...'. The conversation relating to the location of Hardwick and Balsdon lasted just short of an hour. It was again covertly recorded by police.

13 On 15 December 2015, the applicant was charged with having conspired to assault both victims. He was bailed immediately.

14 It should be understood that the charge against the applicant related solely to the discussions that took place at the premises on 14 October 2015, and 18 November 2015.

15 The sentencing judge was told that the applicant had been aged 30 at the time of the offending. He had been educated at various schools throughout the Dandenongs, and had completed year 12 level. He had worked for nine years as an apprentice roof tiler. He had also worked for several years as a slaughterman and boner within the meat industry.

16 The applicant's parents were separated and then divorced when he was still very young. His father had died from bowel cancer 10 years prior to the offending. He had been living with his mother for the previous four years.

17 The judge was told that the applicant had two children, an eight month old daughter and a boy aged four and a half. He presented with no psychological or psychiatric conditions. He had complied with all bail conditions, and there were no pending matters.

18 It seemed that the applicant had been 'fast-tracked' into the Club as a patched member very shortly before becoming involved in this conspiracy. The normal waiting time for new members was about two years. However, he was not fast-tracked for any reason other than that, at the time, the Club was low on members. It was not suggested that he possessed any special skills warranting preferential treatment.

19 The applicant's involvement during the 14 October 2015 meeting was acknowledged to be limited to his having been present on that occasion. He made no other contribution to the discussion.

20 As previously indicated, the applicant was not present at the meeting on 11 November 2015.

21 The sentencing judge observed that although the offending was serious, the gravity of what occurred needed to be balanced against the limited role that the applicant had played in the conspiracy. He was aptly described as 'down the chain' in that regard.

22 The applicant's counsel conceded on the plea that general deterrence was an important sentencing consideration. However, it was submitted that specific deterrence should be given less weight due to the applicant's previous good record, his compliance with bail, and his risk of recidivism being assessed as low.

23 It was submitted that the applicant had pleaded guilty at an early stage, for which he was entitled to some measure of leniency. Unlike the applicant, the co-offenders all had relevant prior convictions. Also unlike the applicant, they had all been charged with a number of offences arising out of the discussions that took place at the premises. Some of these offences were very serious indeed.

24 It was further submitted that given all the mitigating factors that the applicant was entitled to rely upon, a non-custodial sentence would be the appropriate disposition. Plainly, what was contemplated was a Community Correction Order ('CCO').

25 Importantly for present purposes, the prosecutor below accepted that a non-custodial sentence would be within range. Nonetheless, the sentencing judge took the view that nothing short of a custodial term, of some significant duration, would be sufficient. He sentenced the applicant accordingly.

26 As indicated, the applicant should be granted leave to appeal against sentence on both grounds, and his appeal should be allowed instanter. It is difficult to see how the sentence of 15 months' imprisonment which he received can be reconciled with the sentence of 20 months' imprisonment imposed on Napolitano on the charge of conspiracy to assault. It must be remembered that Napolitano was not merely the President of the Club, but also one of the prime movers behind the conspiracy. Unlike the applicant, Napolitano had attended all three meetings at the premises as the conspiracy evolved. In addition, unlike the applicant, Napolitano had a significant criminal record.

27 The principle of parity required that there be a clear and distinct differentiation between the sentences imposed upon the applicant and Napolitano. The extra five months that Napolitano received for his involvement in the conspiracy fell well short of an adequate differentiation.

28 In any event, having regard to the five year maximum penalty, we consider that the sentence of 15 months' imprisonment was manifestly excessive. In some ways, even a CCO alone might have been adequate punishment, as the prosecutor below fairly accepted. However, the applicant has now already served almost four months in custody. There is no point, at this stage, in considering a CCO in place of a term of imprisonment.

29 We think that justice will best be served if the applicant is now resentenced to a term of four months' imprisonment. That is effectively 'time served'.