DPP v Akkari [2003] VSCA 98

Court of Appeal (Vic)|2003-07-24|Before: BATT, VINCENT and EAMES, JJ.A.

CRIMINAL LAW - Sentencing - Appeal by Director - On ground of breach of undertaking to give evidence against co-offender - Aggravated burglary, reckless injury and theft - C.B.O. replaced by 12 months' imprisonment wholly suspended - Crimes Act 1958, s.567A(1A).

The respondent to this appeal by the Director of Public Prosecutions, Mohammed Akkari, was born on 18 April 1983 and so is now aged 20 years. He was 18 at the time of the offending which I am about to mention. On 13 October 2001 he took part in a serious example of aggravated burglary, assault, and robbery. In short, at about 10 p.m., after an 85-year-old man who lived alone had refused the respondent and his co-offender entry into his house, the co-offender forced an entry by breaking down the door with his hip and shoulder. The victim was then wrestled to the ground by the co-offender, where he was punched a number of times to the head and held down. The co-offender reached into the front pocket of the victim's trousers and stole his wallet, which contained $1,200 in cash. The victim's phone line was then ripped from the wall, disabling it. (The respondent claimed that this was not done deliberately but occurred as a result of his tripping in the phone line.) The offenders then ran from the house, leaving the victim lying injured on the floor, and drove away in the co-offender's car. The respondent was given $200 of the stolen money, which he spent. The victim received grazing and bruising to the right side of his face and general soreness to his body as a result of the attack. He was also emotionally upset by the incident and, not unnaturally, was afraid to stay at his home.

On 2 November 2001 the respondent was interviewed by police and made full admissions. The interview was recorded. He also provided a signed, written statement identifying and implicating the principal offender as Renato Marinelli, a man of 35 years. In it he stated that Marinelli had informed him that the victim owed him $1,500 and he said that they went to his house to ask that the money be returned. (It appears, in fact, that Marinelli and the victim were known to each other and that the truth was that Marinelli owed the victim $100 by way of loan.) The respondent did not know the victim and was not aware of any debt between the victim and Marinelli other than as Marinelli had told him. The respondent assisted police in locating Marinelli.

On 13 December 2001 the respondent pleaded guilty before Mr J.M.B. Cashmore, Magistrate, in the Magistrates' Court of Victoria at Preston to three charges arising out of the incident on 13 October 2001. They were aggravated burglary, recklessly causing injury and robbery.[2]

Each of the three offences charged was an indictable offence but one which, by reason of its inclusion in Schedule 4 of the Magistrates' Court Act 1989, was capable of being heard and determined summarily. The condition for summary hearing applicable to the aggravated burglary and robbery charges, namely, that the value of the property in question not exceed $25,000, was readily satisfied, as was the additional condition relating to aggravated burglary, namely, that it involved an intent to steal. As the certified extracts from the register of the Magistrates' Court at Preston show, the respondent consented to the summary hearing of the three charges.

The maximum term of imprisonment for an indictable offence heard and determined summarily in the Magistrates' Court is two years.[3] But that is only a jurisdictional limit and is not to be regarded as a maximum penalty reserved for the worst type of case: Hansford v. His Honour Judge Neesham[4]. The maximum cumulative term imposable by a Magistrates' Court in respect of several offences committed at the same time is five years[5].

The respondent has no prior convictions or findings of guilt. A plea in mitigation of penalty was heard by Mr Cashmore on 24 January 2002. A police summary of the incident was read to the magistrate and accepted as an accurate account of the respondent's involvement in the offending. The respondent, through his counsel, gave what the informant in his affidavit in support of this appeal called an undertaking to give evidence at the trial of his co-offender (Marinelli) in accordance with his record of interview and written statement. In an arrangement suggested by the respondent's solicitor and agreed to by the police, the informant prepared a document which was provided to the magistrate outlining the undertaking the respondent had given. That document calls it an undertaking "to give evidence against his co-accused should the need arise". That document also pointed out that the prosecution case did not rely solely on the evidence of the respondent, though it stated that accurate evidence from him in line with his record of interview and witness statement was considered an important part of the prosecution case against Marinelli. The magistrate explained to the respondent that if he failed to give evidence in line with his witness statement and record of interview then he, the magistrate, strongly urged the prosecution to appeal against his sentence. The respondent acknowledged to the court that he fully understood the undertaking he was entering into. In addition to the foregoing, the informant was present when the respondent's counsel explained to the respondent the undertaking he was entering into.

The magistrate ordered that the respondent be convicted of the three offences and placed on a community-based order for 12 months commencing on 24 January 2002 with a condition that he perform 150 hours of unpaid community work, a condition for attending educational and other programs for 12 months and a condition for supervision by a community corrections officer. In imposing the sentence the magistrate noted that the respondent had given an undertaking to give evidence and stated that the respondent was only escaping an immediate period of incarceration by reason of that undertaking.

The certified extracts record that the magistrate made allowance on sentence due to co-operation with the informant and that the respondent acknowledged the truth of his record of interview and statement and was prepared to give evidence against his co-defendant, the principal offender. Each certified extract also states that the respondent had narrowly escaped a youth training centre order[6].

Marinelli was charged with offences arising out of the incident of 13 October 2001. On 7 November 2002 the respondent was called as a prosecution witness at Marinelli's contested committal hearing in the Magistrates' Court at Melbourne. He repudiated on oath the statements implicating Marinelli which he had made in his police interview and his police statement. He alleged that they had been made under duress and that he had been assaulted and intimidated by the interviewing police officers. Notwithstanding the respondent's evidence, Marinelli was committed for trial in the County Court. A case conference before his Honour Judge Nixon on 11 December 2002 was adjourned to 4 February 2003. In the meantime the elderly victim of the offences died. On 4 February 2003 a nolle prosequi in respect of Marinelli was entered before his Honour Judge Morrow.

By notice dated 31 March 2003 and served and filed shortly thereafter the Director of Public Prosecutions, "consider[ing] that the respondent has failed to fulfil his undertaking", being "an undertaking to give sworn evidence in accordance with the written statement signed by him on 2 November 2001 at the prosecution of the co-accused", which was made "on 24 January 2002 through his counsel ... upon his plea in mitigation", gave notice pursuant to s.567A(1A) of the Crimes Act 1958 of appeal to this Court "in respect of the sentence passed on [the respondent] on 24 January 2002 in the Magistrates' Court at Preston" on the ground that "the sentence imposed was of lesser severity because of an undertaking given by the respondent to assist in the prosecution of the co-accused and the respondent has failed to fulfil the undertaking".

In my opinion, the passages which I have quoted directly satisfy, at least in substance, the requirements, set out in paragraphs (a) and (b) of s.567A(1A), on which the Director's right to appeal pursuant to that sub-section is conditioned. This was not disputed by counsel for the respondent. Indeed the outline of submissions for the respondent began with the statement that he admitted that he failed to honour his undertaking. That admission, in my opinion, is correctly made. Accordingly, if the other members of the Court agree in that opinion, this Court is authorised by sub-s.(4A) to quash the sentence passed and pass such other sentence warranted in law as this Court thinks fit.[7] The submissions for the respondent were, essentially, a further plea.

Before, however, turning to the question of re-sentence, one other matter must be noted. Although the complete sentence passed on the respondent in the Magistrates' Court is set out in the notice of appeal and although the appeal thereby notified is in respect of the whole sentence, the conviction of the respondent stated in the first recital to the notice was confined to the charge of aggravated burglary. If this Court were to re-sentence only for aggravated burglary, it could not consider the total criminality of the respondent manifested in the incident: R. v. Newman and Turnbull [8], a case very much in point. When this was pointed out to the Director, he sought to amend the first recital so as to add the other two offences to which the respondent had pleaded guilty and of which he had been convicted in the Magistrates' Court. This Court has power to give leave to amend a notice of appeal in a Director's appeal by virtue of Rules 2.11(2) and 2.13.1(2) of Chapter VI of the Rules of Court and, since, by virtue of sub-s.(1B) of s.567A, an appeal may be brought at any time, there is no problem as regards time, but prejudice to the respondent must be considered. In the circumstances existing when the application was made, Mr Grant for the respondent did not oppose the application and it was granted during the hearing. Accordingly this Court must now re-sentence the respondent for all three offences of which he was convicted.

I turn to that task. The appellant's outline contained a paragraph submitting that the respondent's conduct in resiling from the truth of his record of interview and statement showed a contemptuous disregard for the undertaking and the judicial process generally. But I agree with the submission for the respondent that he is not to be punished for his departure from his undertaking or the nature or circumstances of that departure but only for the offences for which he stood for sentence in the Magistrates' Court and which are the subject of appeal. I do not find it necessary to consider whether the nature and circumstances of the departure may be used to negate a mitigating personal factor.

For the respondent it was then submitted that failure to fulfil his undertaking did not ultimately affect the prosecution of Marinelli because the nolle prosequi was entered by reason of the death of the victim. I would not be prepared to accept that submission because it appears to me likely that had the respondent given evidence in accordance with his undertaking there would have been sufficient evidence to prove the offences and inculpate Marinelli. But, for reasons already given, this question does not arise on re-sentencing of the respondent in this appeal, as Mr Grant readily acknowledged when the point was raised with him.

The facts relating to the offences have been stated earlier. The personal facts relating to the respondent are to be found in most detail in an affidavit sworn by his solicitor, regrettably only yesterday, and filed today. I do not propose to set out or summarise all its contents as it will remain on the court file. In essence, however, it shows the respondent's age as already stated; that the community-based order has expired without breach and that the respondent complied with all its conditions, as well as making payment of the $600 compensation ordered; that he has committed no offences since being sentenced; that none of his siblings has been in any trouble with the law; that he attended secondary school up to, but not completing, Year 12; that he is currently employed on a full-time basis as a spray painter and labourer and since leaving school has had a satisfactory employment record, his employment being punctuated by several periods of unemployment due, however, to matters such as the closing of businesses and not to fault on his part; and that he is assisting his mother financially and paying board and certain living expenses to his grandmother, with whom he resides.

For the respondent reliance was placed upon the lesser part he played in the offences, he being 15 years junior to Marinelli and genuinely believing that Marinelli was owed money by the victim; upon his being a youthful offender, it being submitted that rehabilitation remained of paramount importance in sentencing him and that this was so even in very serious cases; upon his having no prior convictions and no outstanding matters; upon his offering good prospects for rehabilitation; upon his early plea of guilty, both as an indication of remorse and as an indication of willingness to facilitate the course of justice; upon his demonstrated capacity to be gainfully employed; and upon his successful completion of the sentence imposed by the magistrate. It was submitted, correctly, that a wholly suspended term of imprisonment could satisfy the need for general deterrence, D.P.P. (Cth) v. Carter[9] and R. v. Schwabegger[10] being cited.

The constraints upon this Court that usually apply, by reason of so-called double jeopardy considerations, in re-sentencing on a Director's appeal do not apply to an appeal pursuant to sub-s.(1A): Director of Public Prosecutions (Cth) v. Haunga[11].

In my opinion, the objective seriousness of this offending and the criminality thereby displayed require, notwithstanding the youthfulness of the respondent, a term of incarceration. Having regard to his age now, I do not think it desirable that this Court sentence him to detention in a youth training centre. If he is to be detained there that should be left to administrative arrangements by the correctional authorities. In all the circumstances, including the factors I mention later, I consider that the appropriate term is one year. The difficult question is whether the term of imprisonment or some of it should be actually served in the first instance. These were very serious offences involving a terrifying nocturnal irruption into an elderly

person's home and his being bashed and robbed, and they would ordinarily merit what in the law is called condign punishment. Were it not for the age, lesser role and subsequent good conduct of the respondent, I would have sentenced him to a substantial term of imprisonment of which a good part would have had to be actually served. But those factors, coupled with the Director's statement that he did not now seek immediate imprisonment and the fact that what the respondent faced in the Magistrates' Court and avoided there was detention in a youth training centre, lead me to the view that the sentence should be wholly suspended, though for the maximum operational period available to the Magistrates' Court and thus to this Court on appeal, namely, two years.

As will be apparent, I consider that, though there are three offences, it is appropriate for this Court, standing in place of the Magistrates' Court, to which s.9 of the Sentencing Act is available, to impose one aggregate sentence in respect of them because they are founded on the same facts or form or are part of a series of offences of the same or a similar character and the incident has been viewed as one incident. The effect of the proposed aggregate sentence is that there is only one penalty, although the respondent has been convicted of three offences.

I would therefore allow the appeal and make the orders I have indicated.

It is clear enough that the respondent has failed to fulfil the undertaking that he gave in the Magistrates' Court and which resulted in the imposition of sentences that were significantly more lenient than those which would ordinarily have been anticipated for the offences that he committed, having regard to all of the circumstances relating to those offences and the respondent personally. The situation is one in which I consider, and for the reasons advanced by the learned presiding judge, that the Court should exercise the discretion reposed in it by s.567A(4A) and quash the sentences imposed in the Magistrates' Court and in lieu thereof adopt the disposition of the matter proposed by his Honour.

I agree with the orders proposed by the learned presiding judge and with his reasons.

Subject to anything counsel may say, the orders will be in accordance with the following minutes:

2. Quash the sentences and orders imposed in the Magistrates' Court of Victoria at Preston on 24 January 2002, save for the order for compensation in the sum of $600.

3. In lieu thereof the respondent is sentenced to an aggregate term of imprisonment on charges 1, 2 and 4 in case No. P02478947 of 12 months, the service of which is suspended in whole for a period of two years from this date, 24 July 2003.

Mr Akkari, the Court is required to explain to you the purpose and effect of the order for suspension of sentence of imprisonment and the consequences that may follow if you commit other offences. The purpose of the order which is proposed is to enable you to avoid going immediately to prison and nevertheless have that possibility hanging over your head if you commit other offences. If you do commit, whether in Victoria or outside Victoria, another offence punishable by imprisonment, and many simple offences are punishable by imprisonment, during the period of two years from this date, then you will be brought back before a court, namely the Magistrates' Court, and it is extremely likely that you would be ordered to serve the whole of the 12 months' imprisonment. Do you understand that?

The order which I have, perhaps by way of anticipation, pronounced will, now that that has been explained to you, be made. May I just add this. This is to give you a chance, Mr Akkari. Do take it. You are still young and if you take it now your life will be much better.

Is there anything in the draft orders that counsel wish to raise?

[1] The circumstance of aggravation being that at the time of entry into the building a person was then present in it as the respondent knew.

[2] The date of offending was misstated in the robbery charge, but it was accepted that that charge related to the incident of 13 October. Two alternative charges were withdrawn.

[6] Despite their somewhat rough and ready nature, it was not suggested that the entries did not satisfy s.5(2AB) of the Sentencing Act 1991. The magistrate was not required to state the sentence that he would have imposed but for the undertaking that was given: s.5(2AC).

[7] Unlike sub-s.(4), this sub-section, for an obvious reason, does not contain the expression "whether more or less severe".

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