DPP v Mann [2006] VSCA 228

Court of Appeal (Vic)|2006-10-10|Before: WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A.

CRIMINAL LAW - Appeal by Crown pursuant to s. 567A(1A) of the Crimes Act 1958 - Failure by respondent to execute undertaking - Director of Public Prosecutions v. Kolalich [2006] VSCA 208 followed - Materialisation of risk inherent in undertaking not a mitigating circumstance - Appeal allowed.

"Secondly, you have made a subsequent statement which I have already referred to, setting out the full story, including the roles of the other two individuals involved, Branka Hadsimilovic and Jankowski. I have already indicated that on balance I am prepared, for the reasons I have mentioned, to accept the truthfulness of that statement. You have given an undertaking to the court to assist the authorities in prosecutions against those two individuals, who are each at this stage contesting their involvement. Your willingness to give this assistance is noted and is a relevant sentencing factor in mitigation. The degree of assistance that your co-operation will actually render to the authorities is not possible for me to assess completely accurately at this stage, but it is fair to conclude that a case against Jankowski, even without your evidence, is strong. However, I accept that the fact that you will be on the presentment as a willing witness may ultimately perhaps lead to a plea on his part. If not, it certainly will shore up the Crown case. The assistance in so far as it applies to the case against Branka Hadsimilovic is likely to be considerably greater. I accept that there is some evidence against her in any event, but clearly your evidence has the potential to be very supportive of any other evidence and quite important from the Crown's point of view, although as I have said in discussions, the degree of credibility which it is ultimately given by a jury is problematic, but that is not so much the point here. It is your willingness to give the assistance and the evidence that is more important. That factor is well and truly noted and it is accepted that this course that you are taking will almost certainly bring with it a considerable opprobrium among your colleagues in crime. It breaches the code and you will suffer certain consequences, or at least run that risk, and there is a likely potential for greater hardships to you in serving your sentence. All those factors are noted and applied in mitigation and it is another significant factor."

"You can rest assured that when you hear the sentences you will know that they would have been a lot higher had it not been for the mitigating factors that I have listed, in particular your plea and co-operation and proposed undertaking of assistance to the authorities."

4 The circumstances surrounding the present sentence were that, while on bail, the respondent went to a residence in Elwood with Jankowski and waited for the occupier, whom he knew, one Regina Ezak, to arrive. When she did, she was captured, taped, and a hood placed over her head by Jankowski and taken inside the residence. The respondent then entered the residence. A loaded pistol was held to the woman's head, apparently by the respondent, and she was directed by the respondent to open a safe. There was no money in the safe but some jewellery, which the robbers took. The respondent and Jankowski took a range of luxury goods, appliances, jewellery, a small amount of cash and other items from the residence and placed them in a car outside. The respondent and Jankowski then left in the car. The woman had been told to wait a while before moving. Earlier, the police had been alerted to the fact that something would occur at the residence and observed events externally. They subsequently arrested the respondent at his home.

5 The respondent made admissions to and later co-operated with the police, including the making of a statement implicating Jankowski and Hadsimilovic. In the statement the respondent said he had known Hadsimilovic for some years and she had proposed that the respondent stage a robbery of the residence of Regina Ezak for fraudulent insurance recovery purposes. He stated that the proposal was that he would rob Ezak, that it would be worth in excess of $250,000, together with $30,000 worth of entertainment equipment. The respondent stated that he had initiated contact with Jankowski. He believed that Ezak was participating in the robbery but part way through the process realised she was not. The respondent believed the proceeds of the robbery would have been split up evenly between himself, Hadsimilovic, Jankowski and Ezak.

6 At the hearing of the appeal, the respondent sought to rely upon an affidavit sworn by him on 5 October 2006. In the affidavit the respondent deposed that he did not give evidence against Jankowski and Hadsimilovic in breach of his undertaking because a few days before he was due to do so he was approached in prison by an inmate whom he did not know. The respondent deposed that the inmate stated: "detailed knowledge of my immediate family, in particular relating to my daughter," and had "specific knowledge of the school that my daughter attends." The respondent deposed that, as a result of such threats to his family, he considered he had no alternative but to refuse to give evidence against Jankowski and Hadsimilovic. Clearly, the affidavit was an attempt to demonstrate a reasonable excuse for his breach of the undertaking, although it is not clear where the burden lies in that respect.[1]

7 For the purposes of the appeal, the circumstances of the respondent are important. He is now a 44-year-old man with a significant history of offending. He is presently serving a long sentence for a man of his age. He faces another six years' imprisonment at least. He has an eight-year-old daughter with whom he communicates and hopes to develop a relationship upon release. The respondent has a good record as a prisoner, including employment as an upholsterer. He has the status of a "Listener" in prison, reflective of his good behaviour. In addition, he made admissions to the police on his arrest and expressed remorse with respect to the victim, Ezak. Whilst Hadsimilovic escaped prosecution, Jankowski, the other co-accused, eventually pleaded guilty to a number of charges.

8 Section 567A(1A) and (4A) of the Crimes Act provide that, upon an appeal, where a person fails wholly or partly to fulfil an undertaking, the Court of Appeal shall, "if it thinks that a different sentence should have been passed", pass another sentence, "whether more or less severe", as it thinks ought to have been passed. The meaning of the sub-sections was considered in Director of Public Prosecutions v. Akkari[2] and again in Director of Public Prosecutions v. DJT[3]. More recently the section was considered in Director of Public Prosecutions v. Kolalich[4]. The following applicable principles may be extracted from the authorities:

(1) A more severe sentence will be imposed once the conditions of breach of undertaking, appeal and determination of a different sentence are established, unless exceptional circumstances arise.

(2) In re-sentencing a respondent, the constraints of the principles of double jeopardy do not arise.

(3) The sentence cannot exceed that which the judge at first instance specified would have been imposed but for the undertaking.

(4) Threats made in prison do not alter the fact that a respondent has failed to pay the price of the reduced sentence given at first instance.

9 There was no issue in this case that a threat had been made such as to cause the respondent to breach his undertaking, his affidavit not being challenged by the Director. The issue was whether exceptional circumstances had arisen. Two matters were relied on for the respondent: first, the length of the non-parole period, agreed to be seven years and eleven months from 21 July 2005, giving a release date of 21 July 2012, less a pre-sentence detention period of 158 days; secondly, the submission that the sentences imposed by the judge below were well within range, even without the undertaking, and accepting the criminality of the offending. On the latter aspect, the Director submitted that, in light of the significant prior history of the respondent, the commission of the offences whilst on bail, the seriousness of the offences, including the use of a loaded gun, and the maximum penalties for each offence, there was nothing in the case that attracted categorisation of exceptional circumstances.

10 I accept the Director's submission. When the respondent gave the undertaking, he in effect entered into a contract with the community. He breached that agreement and falls to be considered for re-sentencing. However, cases under s.567A of the Crimes Act are distinct from other appeals relating to sentence. The Court does not exercise a fresh sentencing discretion. As Buchanan, J.A. observed in argument, the Court does not start with a clean sheet of paper, rather with a sheet of paper with some writing on it: what the judge said below. It is palpably clear in this case that the sentencing judge was persuaded to impose a lesser sentence, save for the undertaking. Indeed, examination of the plea submissions reveals constant reliance by the respondent upon his co-operation and his proffering of the undertaking to give evidence. It was submitted for the respondent that a mitigating factor operating in his favour was the materialisation of the risk he accepted in proffering the undertaking, but worse, in that his family and daughter were brought into the risk and its materialisation because of the terms of the threat. I reject that submission. When an individual agrees to the bargain with the community based on co-operation, he or she embraces risks at large, save in an exceptional case where the fulfilment of the risk may not have been reasonably anticipated. Here, the respondent took the risk, as clearly articulated by the sentencing judge, and it eventuated. Such fulfilment is not a matter of mitigation at all. It simply puts the individual back where he would have been if the undertaking had not been proffered in the first place.

11 In view of the seriousness of the offences constituting a violent home invasion, where a victim was restrained and hooded, all perpetrated with the aggravating presence of a loaded gun, combined with the significant criminal history of the respondent, I consider a strong penalty is warranted. There are the mitigating circumstances of the respondent: his remorse, co-operation, early plea of guilty and demonstration of prospects of rehabilitation. In all the circumstances, I consider the respondent should be sentenced to a term of seven years' imprisonment on count 1 and seven years' imprisonment on count 2. I would order that one year of the sentence on count 2 be served cumulatively with the sentence on count 1, giving rise to a total effective sentence of eight years' imprisonment. I would order that five years of the total effective sentence be served cumulatively with the sentence imposed previously.

12 It follows that I would allow the Director's appeal, quash the sentences at trial and impose therefore the sentences I have stated.

1. The sentences of imprisonment imposed below are set aside. In lieu thereof, the respondent is sentenced as follows:

Count 1 - seven years' imprisonment;

Count 2 - seven years' imprisonment.

2. The Court directs that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of eight years' imprisonment.

3. The Court further directs that five years of the total effective sentence be served cumulatively upon, and three years concurrently with, the sentence imposed on 19 August 2004.

4. A non-parole period of eight years is fixed as at today, 10 October 2006.

5. It is declared that the period of 605 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

The Court grants to the respondent an indemnity certificate pursuant to s.15

of the Appeal Costs Act 1998.

[1] See Director of Public Prosecutions (Cth) v. Haunga [2001] VSCA 73; (2001) 4 V.R. 285 at 289 [11].

[2] [2003] VSCA 98.

[3] [2003] VSCA 98.

[4] [2006] VSCA 208.

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Judgment (11 paragraphs)

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