DPP v Kolalich [2006] VSCA 208

"After it was submitted on behalf of the Crown that you had not agreed to co-operate with the police in relation to the three other intruders other than providing the details about what they did in your statement dated 4 August 2004 you gave a sworn undertaking to this Court that you would give evidence on behalf of the Crown in relation to any criminal proceeding brought against each of those three men named in your statement: Peter Carr, Stephen Mertich (sic) and John Soukervich (sic)."

"I take into account in your favour, and I am bound to do so as the sentencing judge, the sworn undertaking you have given to the Court to give evidence on behalf of the Crown in relation to the pending committal and trial of Georgia Lo Piccolo in relation to whom you have made a statement to police. I also take into account the undertaking in relation to each of the other three co-offenders. It is a matter of important public policy that sentencing judges take into account in favour of a prisoner such co-operation by reducing the sentence which the judge would otherwise have imposed."

8 On 30 January 2006 the respondent was called to give evidence at the Melbourne Magistrates' Court in committal hearings against Carr and Murtic. He refused to give evidence. As a result of his failure to give evidence at the committal against Carr and Murtic the charges against both of those persons were dismissed. The co-offender, Lo Piccolo, subsequently suicided after being charged and Surkovic was not located.

9 The Director of Public Prosecutions appeals pursuant to s.567A(1A)(a) of the Crimes Act 1958 on the basis that the sentence imposed on the respondent was of less severity because of an undertaking given by him that he would, after sentencing, assist law enforcement authorities in the investigation or prosecution of an offence, and upon his being satisfied under paragraph (b) that that the respondent has failed wholly or partly to fulfil the undertaking.

10 Pursuant to s.567A(4A) the Court of Appeal may, if it thinks that the respondent has failed wholly or partly to fulfil the undertaking, quash the sentence imposed "and pass such other sentence warranted in law as it thinks fit".

11 Upon being satisfied that the preconditions for re-sentencing under s.567A(1A) have been established the Court, in effect, hears submissions on a further plea, in which the Court is concerned with the factual situation present at the time of re-sentencing.[1] In re-sentencing the respondent, constraints imposed by virtue of double jeopardy principles do not apply.[2]

12 Counsel for the respondent submitted that the preconditions for allowing the appeal under s.567A(1A) had not been established. They submitted that it was necessary to establish objectively that the learned sentencing judge had in fact imposed a lesser sentence by virtue of the undertakings given by the respondent. Counsel submitted that an examination of the sentence imposed disclosed that it was well within the range of sentences properly open to the judge had there been no such undertaking, thus, the sentence imposed does not on its face reflect that there was any adequate reduction in the sentence granted on account of the undertaking.

13 Mr Priest emphasised that the respondent was, in any event, entitled to substantial discounts on sentence by virtue of factors other than that arising from his undertaking to assist authorities. In particular, he was entitled to a reduction in sentence by virtue of the findings of the judge that the respondent had true remorse and, in addition, that he suffered a serious psychiatric illness. If her Honour did give appropriate weight to the factor of the undertaking to assist authorities, then, it must be, so Mr Priest submitted, that her Honour had given inadequate weight to these other factors, because the head sentence and non-parole periods imposed simply failed to reflect that proper weight had been given to all of those factors, when taken together.

14 The Director of Public Prosecutions, Mr Coghlan, conceded that those submissions had weight. He said that although he recognised that to be the case, he had considered himself under a public duty to bring an appeal under s.567A where an undertaking to the Court had been broken. Having done so, he agreed with Mr Priest that the sentence that was imposed was at the top of the appropriate range of what might have been imposed even if the only significant mitigating factors were the pleas of guilty and the psychiatric illness of the respondent. That being so, then the sentence reflects, he conceded, that either the undertaking by the respondent to co-operate with authorities was given insufficient weight or else those other mitigating factors were themselves given insufficient weight. Mr Coghlan, acknowledged that particular weight should have been given to the respondent's volunteering of guilt and his pleas of guilty, because the police could not have charged him with any offence had he not fully confessed his role in the offences.

15 In my opinion, it must be taken that her Honour intended to and did discount the respondent's sentence on account of his undertaking to give further assistance in the prosecution of the other offenders. I see no reason to go behind her Honour's express declaration at the conclusion of in her sentencing remarks that she had reduced the sentence for that reason, and she recorded in the Return of Prisoners, which she signed, that:

"Order made pursuant to s.5(2AB) of the Sentencing Act 1991 (Vic) that the judge has imposed a less severe sentence for each offence than she would otherwise have done because of each undertaking given by the prisoner to assist after sentencing the law enforcement and prosecutorial authorities in the investigation and the prosecution of an offence in relation to Georgia Lo Piccolo, Peter Carr, Steve Murtic and John Surkovic."

16 However, if full weight had been given to the factor of the undertaking to cooperate with authorities in the prosecution of the other offenders then a very substantial discount in the sentence was appropriate in this case. A sentence of 5 years and six months' imprisonment, with a non-parole period of three years, does not suggest to me that an appropriate discount could have been given for that reason, but even if it was, then it is very difficult to see how adequate sentencing discounts could have been given for the other very powerful mitigating factors in this case. The most important of those additional factors were the pleas of guilty and the psychiatric illness of the respondent.

17 A report from consultant psychiatrist, Dr Ruth Vine, dated 1 April 2005 was tendered before her Honour. Dr Vine confirmed the diagnosis of paranoid schizophrenia, which had been made soon after the respondent was taken into custody, which led to him being placed in Thomas Embling Hospital for some two months. He was thereafter placed in St Paul's Psychosocial Unit at Port Phillip Prison and was prescribed antipsychotic medication as well as antidepressant medication. Dr Vine considered that the respondent had a good insight into his illness and was undertaking programs whilst at St Paul's Unit, including education programs concerning schizophrenia. She concluded that he had average intelligence.

18 Dr Vine considered that the onset of the respondent's illness of schizophrenia was during his 30s. She considered that he had reasonable insight into his illness and was compliant with medication. Whilst in prison he would be able to receive ongoing monitoring of his mental state and treatment for schizophrenia, as is currently occurring. Dr Vine considered that he had made a good response to treatment and had good prospects for rehabilitation if he maintained the treatment. He expressed considerable remorse, which Dr Vine regarded as sincere. Dr Vine considered that the respondent's risk of re-offending was minimal.

19 Having accepted the diagnosis of paranoid schizophrenia, and identifying R. v. Anderson[3] and R. v. Tsiaras[4] as relevant authorities that bore on the significance for sentencing of such a condition, her Honour nonetheless, concluded:

"I find that notwithstanding that diagnosis you are an appropriate vehicle for general deterrence, having taken into account the opinion of Dr Ruth Vine and applying the legal principles in the authorities I have set out, I find that at the time you committed these offences you were not affected by mental illness. I refer to a combination of the following matters: the nature of the offences; and the manner in which they were planned and carried out".

20 Although her Honour said that she gave "a deal of weight" to general deterrence, she said that the condition of paranoid schizophrenia would cause her to sensibly moderate the weight she gave to specific deterrence.

21 With respect, her Honour's approach to the mental illness of the respondent was at odds, in two respects, with the third of the five sentencing principles approved by the Court in Tsiaras, where the Court held:

" . . . a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time".[5]

22 The appeal in this case does not depend on there being any finding of sentencing error on the part of the learned sentencing judge. Once this Court is satisfied that the conditions under s.567A(1A) have been met then the respondent falls to be re-sentenced in the exercise of the discretion of the appeal court judges, and, as I have said, the factor of double jeopardy is not then relevant. Nonetheless, the apparent failure of her Honour to give sufficient weight to the mental illness of the respondent as a mitigating factor, would be relevant to the exercise of the discretion of this court when deciding whether it was just, in all the circumstances, to impose a more severe sentence than that imposed by the judge below.

23 It will generally be the case that a more severe sentence would be imposed upon re-sentencing once the pre-conditions under s.567A(1A) have been established. However, in DPP v. DJT[6] Callaway, J.A. with whom Charles, J.A. agreed held:

"In the course of oral argument two points became clear. The first, which was not conceded by Mr Grace was that there had to be some increase in the sentence. The respondent had made a bargain with the Crown from which he had resiled. He had received a benefit in exchange and at least some part of that benefit had to be taken back. There are exceptional cases in which even on a Crown appeal under s.567A(1A) no different sentence should be passed but this is not one of them. The threats that were made in prison do not alter the fact that the respondent failed to pay the price for the reduced sentence that the judge gave him, but they do bear on an assessment of his character. To go back on an undertaking because one fears for one's personal safety is a very different matter from deciding that one simply does not wish to assist the authorities."

24 I turn then to the re-sentencing of the respondent.

Re-sentence

25 On any view, these were serious instances of each offence. The offences were committed at night, in company, by armed men wearing balaclavas, who terrorised the occupants with threats of violence, actual violence and threats of death.

26 The Crown case was that the respondent was a member of the group which employed that violence, which included punching the male householder and jabbing him with a stun gun. It was the respondent who had a pistol, although it was not alleged that it was the respondent who had put the pistol into the mouth of the victim.

27 The male victim filed a victim impact statement describing the extent of the damage to his eye and the fear he felt living at his home thereafter. He moved into a hotel for three months and installed more extensive security arrangements, at a cost of tens of thousands of dollars. He said in his statement that he expected to be killed that night, and he no longer sleeps a full evening's sleep. The gun had been placed in his mouth, chipping a tooth, and that image remains with him.

28 The female victim received bruises and soreness to her neck and arms as a result of struggling with one of the intruders and she described the security arrangements that were put in place after this robbery, and the mental anguish she continued to suffer, with frequent panic attacks. She said that when she was alone in the house she would lock herself in her room.

29 The respondent was born in Bosnia and migrated to Australia in 1970 with his parents. He was an average student but left school in year 12 after his mother lost her hand in an accident. His father had separated from his mother prior to coming to Australia. He had various jobs over the years, including owning his own gambling club for seven or eight years. His life went off the rails in about 1988 when he was involved in a fight in a Serbian night club in which he was hit over the head with a bottle. A man had died in the fight and the respondent was suspected of being responsible. He subsequently became paranoid about threats from the Serbian mafia and received psychiatric counselling; he was also prescribed medication.

30 The respondent has been imprisoned on four prior occasions, including twelve months' imprisonment on a charge of attempted rape. The most severe prior penalty was a sentence of thirteen years' imprisonment with a ten year non-parole period, served in New South Wales for the importation offence. He was released on parole in May 2000. The respondent has a history of marijuana use and of it causing him to become increasingly suspicious and paranoid. He had also used amphetamines.

31 As earlier discussed, the mental illness of the respondent was a significant factor mitigating sentence. The conclusion by Dr Vine that the respondent had reasonable insight into the nature of his illness reflected a change in the respondent's attitude. Dr Lawrence Woo, a general practitioner, reported on 6 April 2005 that he had prescribed an antidepressant after the respondent was released from gaol on 1 May 2000. He told the respondent that he was suffering schizophrenia and at that time, according to Dr Woo, he had no insight into his own problem.

32 These offences were committed whilst the respondent was on parole. By s.16(3B) of the Sentencing Act 1991, sentences of imprisonment imposed on a person for an offence committed whilst on parole must - unless otherwise directed by the Court because of "the existence of exceptional circumstances" - be served cumulatively on the period of imprisonment which he might be required to serve upon cancellation of the parole order. In this case her Honour was uncertain whether s.16(3B) applied, because the offence for which the respondent was on parole was a Commonwealth offence and he was released on "Commonwealth parole" on 1 May 2000. Her Honour ruled that if the section did apply then there were exceptional circumstances, justifying making an order avoiding cumulation of the sentences imposed with any period of imprisonment required to be served by virtue of cancellation of parole.

33 Her Honour held that the exceptional circumstances were that the sentence for which the respondent was on parole was a completely different type of offence, namely "a drug offence", and that the respondent had completed more than two-thirds of the parole period without breaching it. Additionally, as an exceptional circumstance, her Honour noted that had not the respondent himself approached police and admitted these offences he would not have been charged.

34 In exercising my own discretion upon re-sentencing, I might have accorded those factors less weight than did her Honour but in my opinion it would be unfair for the respondent to be denied the benefit of the order of concurrency under s.16(3B) made by her Honour. I note that the Director does not urge that her Honour's order be varied. Therefore, taking all matters into account, I would not interfere with the order made by her Honour under s.16(3B) of the Sentencing Act 1991.

35 The respondent is now 48 years of age. The history of the applicant's mental illness has been described. At the time of these offences the respondent was not taking his medication and was a cannabis user. That drug, too, had been provided to him by Ms Lo Piccolo. He found it difficult to obtain work upon release from prison and his modest income from a disability pension (which had been allowed for his depression) were factors in his offending. Ms Lo Piccolo provided the respondent with drugs and money and encouraged him to be involved in these offences.

36 There are, therefore, many significant factors which operate in mitigation of sentence in this case. The respondent's mental illness will add to the burden of imprisonment for him; his pleas of guilty in circumstances where his guilt was otherwise unknown are worthy of being given particular weight;[7] he has reasonable prospects of rehabilitation; he will serve his sentence in protective custody. One additional factor relevant in mitigation of sentence was the delay between the offence and sentencing but, as her Honour pointed out, the bulk of that period was attributable to the fact that the respondent pleaded not guilty to all offences until late in the day.

37 Counsel for the respondent submitted that it is not obligatory by virtue of s.567A(4A) that the Court, upon re-sentencing, must impose a more severe sentence. The Court is entitled to have regard to events which occurred subsequent to the sentencing in the court below which went in favour of the respondent.[8] As Batt, J.A. noted in DPP v. Akkari,[9] the power given to the Court under sub-s.(4A) is that upon being satisfied that the respondent has failed wholly or partly to fulfil the undertaking then the Court may "quash the sentence passed and pass such other sentence warranted in law as it thinks fit". Batt, J.A. observed that those words are to be contrasted with the words in sub-s.(4) where the Court is empowered to pass such other sentence warranted in law "whether more or less severe". Similarly, s.568(4) gives power to the Court, where it thinks that a different sentence should have been passed, to quash a sentence and pass such other sentence, as warranted, "whether more or less severe".

38 Counsel for the respondent contended that the difference in the language used in those provisions did not reflect that the Court was obliged by s.567A(4A) to impose a more severe sentence. However, Batt, J.A., in Akkari, observed that the plain intention of sub-s.(4A) was that once the conditions were met there would be a more severe sentence. As his Honour said, sub-s.(4A), "for an obvious reason", did not contain the expression "whether more or less severe". The obvious reason was that it was, arguably, the whole purpose of the section that the breach of the undertaking would lead to a more severe sentence being imposed. Likewise, Tadgell, J.A. held in DPP (Cth) v. Haunga,[10] that once the sentence imposed by the sentencing judge had become inadequate by virtue of the failure to comply with the undertaking that sentence should be set aside and the respondent be re-sentenced by the Court "imposing an appropriately increased sentence". However, as his Honour held[11] the sentence to be imposed:

"... cannot exceed that which the County Court judge specified he would have imposed but for the respondent's undertaking. It might or might not be a lesser sentence than that so specified by the judge. With a view to persuading us that we should impose a lesser sentence the respondent is of course entitled to point to such co-operation as he gave and to any other circumstance tending to minimise the seriousness of the repudiation of his undertaking in terms of its circumstances (remembering that there was no reasonable excuse for it) and consequences."

39 As noted earlier, Callaway, J.A. held in DPP v. DJT[12] that upon satisfaction that the undertaking had been breached then, save in exceptional circumstances, that would lead to an increase in the sentence. Thus, both Callaway, J.A. and Tadgell, J.A. acknowledged the possibility that a sentence might be imposed which was not more severe than at first instance.

40 It is unnecessary to explore further the scope of the jurisdiction of the Court of Appeal in re-sentencing under s.567A(4A) in a case where exceptional circumstances could not be said to exist. In particular, it is unnecessary to consider whether in any and what circumstances a lesser sentence might be imposed by the appeal court. The matter was not the subject of detailed argument before us. It is sufficient to say that, in my opinion, this is a case where exceptional circumstances do exist to justify the imposition of a sentence which was no more severe than was imposed below. In the exercise of my own discretion in this case, and notwithstanding the breach of the undertaking, I would not have imposed any different sentence to that imposed in the court below.

41 Mr Coghlan accepted that it would be unnecessary for this Court to re-sentence the respondent if it was satisfied that no different sentences ought be imposed and no different orders ought be made to those of the learned sentencing

judge. In my view, the circumstances of this case dictate that the appropriate order should be, simply, that the appeal be dismissed.

42 I also agree with Eames, J.A.

[1] DPP v. Akkari [2003] VSCA 98 at [11] per Batt, J.A.

[2] DPP (Cth) v. Haunga [2001] VSCA 73; (2001) 4 V.R. 285.

[3] [1981] VicRp 17; [1981] V.R. 155.

[4] [1996] VicRp 26; [1996] 1 V.R. 398.

[5] At 400.

[6] [2005] VSCA 270 at [12].

[7] See Ryan v. The Queen (2001) 206 C.L.R. 267, at 272-3, [15] per McHugh, J., at 296 [97], per Kirby, J.

[8] See DPP (Vic) v. Fernandez [2003] VSCA 14; (2003) 137 A.Crim.R. 524 at 532 [23]- [25].

[9] At [11] and see fn.7.

[10] [2001] VSCA 73; (2001) 4 V.R. 285 at [19].

[11] At [21].

[12] At [12].