DPP v Oksuz [2015] VSCA 316

Court of Appeal (Vic)|2015-11-25|Before: Kyrou JA, Redlich JA

DPP v Oksuz (Unreported, County Court of Victoria, Judge Dean, 20 October 2014).

CRIMINAL LAW - Sentence - Crown appeal - Residual discretion not to intervene - Factors relevant to exercise of discretion, including totality and parity principles and fault on the part of the Crown - Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 applied - Appeal allowed - Respondent resentenced to 4 years' imprisonment for attempting to pervert the course of justice producing new total effective sentence of 5 years and 6 months' imprisonment with non-parole period of 3 years and 6 months.

CRIMINAL LAW - Sentence - Crown appeal - Court's power to adjust a manifestly inadequate individual sentence if the total effective sentence unaffected - DPP v Hudson (2010) 30 VR 610 applied; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 considered.

CRIMINAL LAW - Sentence - Crown appeal - Totality principle and s 16(3B), (3C) of the Sentencing Act 1991 - Current offences committed on parole - Sentence for cancelled parole completed at time of sentence for current offences - Morgan v The Queen (2013) 40 VR 32 applied, Koumis v The Queen [2013] VSCA 47 considered.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons of Kyrou JA and agree that both the individual sentence imposed on the charge of attempt to pervert the course of justice and the total effective sentence are manifestly inadequate. I agree with Kyrou JA that the appeal should be allowed and the respondent resentenced on the charge of attempt to pervert the course of justice to a term of imprisonment of four years. I would also make the orders for cumulation that Kyrou JA proposes so as to produce a total effective sentence of five years and six months imprisonment with a non-parole period of three years and six months.

2 I have also had the benefit of reading in draft the reasons of Croucher AJA. He agrees that the sentence imposed on the charge of attempt to pervert the course of justice is manifestly inadequate and has concluded that, despite a perceived tension between DPP v Hudson[1] and Green v The Queen,[2] the appeal should be allowed and the respondent resentenced on that charge.

3 I wish to add some reasons of my own to those of Kyrou JA.

4 I turn first to the consequence of the conclusion shared by all members of the Court that the sentence imposed on the charge of attempt to pervert the course of justice is manifestly inadequate. There are, in my respectful opinion, no discretionary reasons which could justify a refusal to intervene. The sentence imposed was derisory, it being egregiously disproportionate to the respondent's degree of criminality. A different sentence should be passed, being one that correctly reflects the objective gravity of the circumstances of that offence.

5 The adequacy of an existing total effective sentence or the likely impact of the increased individual sentence do not provide a justification to refuse to intervene to impose an appropriate individual sentence. The respondent's argument to the contrary must be rejected. The proper process for applying the totality principle is to determine first what is an appropriate and proportionate sentence for each individual offence when viewed in isolation. Whether a change to the individual sentence on appeal would result in an increase or decrease in the total effective sentence does not materially inform the question whether an individual sentence should be altered, unless it is concluded that the principle of totality could not be satisfied without imposing an artificially low individual sentence. It is only after determining the appropriate individual sentence or sentences, that a judge will look at what the total effect of the sentences would be and adjust that total effect to what is considered to be 'just and appropriate' in all the circumstances.[3] It is only after it is concluded that on appeal a new sentence should be imposed, that an assessment of the appropriate total effective sentence is undertaken, informed by the new sentence.

6 In Hudson,[4] the Court rejected the argument that there should be no adjustment of an individual sentence that was manifestly inadequate if it would not affect the total effective sentence. The Court said:

Counsel for the applicant argued that this error was not sufficient to justify this court's interference on a Crown appeal. Initially, the applicant submitted that this was because it was an 'error of no consequence', because in any event the total effective sentence was unaffected. That submission should be rejected. No authority was cited to support the proposition that this court is unable to intervene on a Crown appeal unless the error has produced an error in both the individual and the total effective sentence. The considerations of equality before the law, consistency and the maintenance of sentencing standards, pertinent to offender appeals, require sentencing judges to pass appropriate sentences on individual counts, even if the total effective sentence will not be affected. Those considerations are also germane to a Crown appeal.[5]

7 This was not a case in which the sentencing judge deliberately fixed an 'artificially light' sentence of the kind with which Ormiston JA was concerned in Grabovac.[6] Neither was it suggested on the appeal that the principle of totality could not be satisfied without imposing an artificially low individual sentence. The principle is not relevant to the Court's determination of whether the sentence should be adjusted.

8 I am with respect unable to agree with Croucher AJA that there may be a tension between the decision in Green[7] and the decision of this Court in Hudson. In Green the majority of the High Court allowed an appeal from the New South Wales Court of Criminal Appeal which had increased the appellant's sentence so as to create an unjustifiable disparity with a sentence imposed on a co-offender. French CJ, Crennan and Kiefel JJ also found that there were discretionary reasons why the Court of Criminal Appeal should not have intervened:

... Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D [of the Criminal Appeal Act 1912 (NSW)] be served by allowing the appeal? If the result of doing so would be a sentence 'adequate' on its face, but infected by an anomalous disparity which is an artefact of the Crown's selective invocation of the Court's jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski,

the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. [8]

9 In R v Borkowski,[9] a Crown appeal had been dismissed, which if allowed, would have created a disparity with the sentences imposed upon co-offenders whose circumstances were relevantly similar. The majority in Green held that Borkowski should not have been overruled. The remarks in R v Borkowski and their endorsement in Green were made with reference to how the principle of parity may enliven the residual discretion in Crown appeals to prevent re-sentencing which would create an unjustifiable disparity with a co-offender's sentence that the Crown had not challenged. In circumstances where there are reasons to decline to intervene on a Crown appeal, there is still an educative benefit in appellate courts identifying sentencing errors of principle. But nothing said in Green casts any doubt on the correctness of the approach in Hudson that a conclusion that the total effective sentence should not be altered provides no basis for the exercise of the residual discretion to decline to intervene on an individual sentence which is egregiously disproportionate to the objective gravity of the offence.

10 The judge made some error or errors of principle which cannot be identified in arriving at a grossly inadequate sentence. The inadequacy of the sentence is so marked that it must be corrected to maintain public confidence in the criminal justice system. The task now falls to this Court to impose a sentence that properly reflects the applicant's degree of criminality, gives effect to general and specific deterrence and protection of the community and makes due allowance for matters personal to the respondent. The sentence proposed by Kyrou JA serves to ensure there is consistency in the application of principle and appropriate uniformity in sentencing standards for this offence.

11 Next it must be recognised that the sentence on the charge of blackmail was extremely lenient. This was a very serious example of the offence that would have justified a sentence well in excess of that imposed. Allowing the sentencing judge the great latitude of discretion that is required, I think the sentence, by the barest of margins, fell within the available range. It was, as Croucher AJA acknowledges, a particularly 'nasty' blackmail. This form of blackmail - involving a threat of serious physical harm - is a particularly serious form of this offence. The gravity of the offence was increased because the threats were largely directed at the victim's son in prison. The respondent made clear to the victim, Frank Fusca, that he had criminal associates in prison who would carry through with the threat that Frank's son would be stabbed in prison. It was not in issue on the plea that the respondent had such contacts within the prison that he could call upon. These threats were repeated over some weeks. The respondent produced a gun during one of the visits and displayed it in a threatening manner. Thus the victim feared for his personal safety and had little or no ability to offer protection to his son. He viewed the threats so seriously that he engaged someone to protect himself. His protector, one Randall, was eventually shot. The shooting was the subject of the respondent's charge of reckless conduct endangering life.

12 There was in my respectful view little that could be said by way of mitigation, the respondent having a serious criminal history and prospects of rehabilitation that were guarded. As Kyrou JA has set out, the respondent only indicated his willingness to plead guilty to the charge of blackmail during the pre-trial directions. Until then, as evidenced by the charge of attempt to pervert the course of justice, the respondent was seeking to conceal this conduct committed shortly after his release on parole and whilst on bail. The respondent had used his contacts within the prison system for the purpose of passing a false statement, prepared by him, to Frank Fusca intending that Frank would in effect withdraw his allegations of blackmail against the respondent. The respondent again used his contacts in the prison system to pressure Patrick Fusca, who was on remand, to have his father Frank withdraw his statement against the respondent.

13 I turn then to the conclusion that a new total effective sentence was necessary to reflect the respondent's overall criminality.

14 The sentence on the charge of attempt to pervert the course of justice would become the base sentence, as it is the largest sentence. In order to satisfy the principle of totality, the amount which is ordered to be cumulated from the blackmail sentence must then be such as will, when added to the base sentence and the order for cumulation on the sentence for reckless conduct endangering life, be sufficient to reflect the overall criminality of the respondent. Having regard to the gravity of the blackmail offence, the order of 6 months cumulation did not result in a total effective sentence that adequately reflected the totality of the respondent's criminality. The total effective sentence fell well short of an effective sentence that would reflect the totality of the respondent's criminality for three very serious offences.

15 The respondent's contention that to increase the order for cumulation on the blackmail sentence or the resulting total effective sentence would create a disparity with the sentence imposed on Mr Demirbas for intentionally causing serious injury, is, with respect, without any substance.

16 Mr Demirbas was sentenced to five-and-a-half years' imprisonment on a plea of guilty to intentionally causing serious injury, an offence which carries a maximum penalty of 20 years' imprisonment.

17 The Crown having elected to accept a plea to a lesser offence in respect of the same incident, the respondent was sentenced to three years' imprisonment on a plea of guilty to reckless conduct endangering life, an offence which carries a maximum penalty of 10 years' imprisonment. Under the agreed facts on the plea the Crown relied upon all three shots that were fired by Demirbas, that the second and third shots were fired after the respondent remarked 'look he's not even afraid of the gun' and relied upon the injuries sustained by the victim. The sentencing judge however made clear during the plea that he would not sentence the respondent for the latter two shots or their consequences, as they were fired by Demirbas with an intent to seriously injure. Although the prosecutor did not agree that the second and third shots should be disregarded, it was not in dispute that his Honour sentenced the respondent only for the first shot discharged.

18 The Crown has not appealed against that sentence, and it therefore need only be said that the sentencing judge adopted an unduly favourable view of the facts in disregarding the second or third shot and their consequences as the risk associated with such conduct had eventuated.

19 The respondent contends that though Demirbas was not indicted on a charge of blackmail, it is apparent from the reasons of the judge who sentenced Demirbas, that he treated the blackmail as part of the context in which Demirbas fell to be sentenced for the offence of intentionally causing serious injury.[10] The respondent argues that the blackmail offence formed a component part of Demirbas' five-and-a-half-year sentence on the charge of intentionally causing serious injury. Thus it is said that the parity principle is enlivened between the Demirbas sentence and whatever combined sentence is fixed for the respondent on the charges of conduct endangering life and blackmail.

20 That submission, with respect, should be rejected. The judge sentencing Demirbas recognised that the blackmail provided the context in which the shooting arose. It is another thing altogether to suggest that the sentence included a component for the offence of blackmail with which Demirbas was not charged. The experienced judge said and did nothing in sentencing Demirbas that would indicate that he was being punished on the charge of intentionally causing serious injury for the offence of blackmail. It would have been remarkable had the judge so approached the sentencing task. The lenient sentence imposed on Demirbas for deliberately shooting Randall, did not support the suggestion that the blackmail was treated as a circumstance of aggravation. The principle of parity did not arise between the sentence for Demirbas and the respondent's sentence for blackmail.

21 The sentencing judge recognised that the sentences on the three primary offences of blackmail, reckless conduct endangering life and attempt to pervert the course of justice had to be imposed against a background of the respondent having served, since his incarceration on 6 December 2012, six months of the cancelled parole on the restored burglary sentence and 12 months (including the parole period) of the affray sentence. That said, the primary offences were all committed in breach of parole and bail. As stated by McHugh, Gummow and Hayne JJ in R v RHMcL,[11] the scope for applying the totality principle must be more limited when provisions such as ss 16(3B) and 16(3C) of the Sentencing Act apply so as to give

effect to the legislative policy inherent in those provisions.

22 The residual ground of error in House v The King[12] has been made out as to both the individual sentence on the charge of attempt to pervert the course of justice and the total effective sentence. The total effective sentence was, as the Crown submits, egregiously inadequate to reflect the respondent's total criminality. As there are no countervailing discretionary considerations which would warrant the Court declining to intervene, the Court should correct the errors of principle in order to ensure uniformity in sentencing standards, consistency in the application of principle and provide guidance to sentencing judges.

23 On 22 September 2014, in the County Court of Victoria, the respondent (aged 29) pleaded guilty to charges 1 to 5 on Indictment C13408411.1b and on 24 September 2014, he pleaded guilty to charges 1 and 2 on Indictment C13408411.1c. Following a plea on 10 October 2014, Judge Dean sentenced him on 20 October 2014 as follows:

Blackmail [Crimes Act 1958 s 87]

Reckless Conduct Endangering Life [Crimes Act 1958 s 22]

Possessing a drug of dependence [Methylamphetamine] [Drugs, Poisons and Controlled Substances Act 1981 s 73]

Attempt to pervert the course of justice [common law]

5 years 6 months with a non-parole period of 3 years 9 months

24 I will refer to the blackmail charge, the reckless conduct endangering life charge ('RCEL charge') and the attempt to pervert the course of justice charge ('APCJ charge') collectively as 'the Subject Charges'.

The following components of the sentence passed below are manifestly inadequate:

(a) the individual sentence on Charge 5 (Attempt to Pervert the Course of Justice) on Indictment No C13408411.1b;

(b) the individual sentence on Charge 1 (Blackmail) on Indictment No C13408411.1c;

(c) the total effective sentence; and

(d) the non-parole period.

Particulars

In fixing the sentence set out above ... the sentencing Judge -

(a) failed to have sufficient regard to the applicable maximum penalties;

(b) failed to sufficiently deter other persons from committing offences of the same or similar nature;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the respondent engaged;

(d) failed to have sufficient regard to the nature and gravity of the offences and failed to fix a sentence commensurate with the characterisation of the offending as a 'serious course of conduct' and the attempt to pervert the course of justice as 'serious';

(e) failed to have sufficient regard to the aggravating features of the offending;

(f) gave excessive weight to the principle of totality;

(g) gave excessive weight to factors in mitigation including the respondent's family background and circumstances, guilty plea, and prospects of rehabilitation; and

(h) erred in setting a non-parole period of only two years, which was only half the total effective sentence.

(a) whether the individual sentence for the APCJ charge was manifestly inadequate;

(b) whether the individual sentence and order for cumulation for the blackmail charge were manifestly inadequate;

(c) whether the total effective sentence was manifestly inadequate, particularly having regard to the totality principle;

(d) whether the non-parole period was so low as to indicate sentencing error; and

(e) whether, in the event that this Court determines that there is sentencing error, it should exercise its residual discretion to dismiss the appeal, particularly having regard to:

(i) observations made by the judge and the prosecutor during a pre-trial hearing on 23 September 2014;

(ii) the application of the parity principle to the sentence imposed on the co-offender, Burhan Demirbas; and

27 For reasons that follow, I would allow the appeal and resentence the respondent.

28 Since the preparation of these reasons, I have had the advantage of reading in draft the judgments of Redlich JA and Croucher AJA. I agree with the additional reasons given by Redlich JA for allowing the appeal and resentencing the respondent.

29 Between mid-October and late-November 2012, the respondent and Mr Demirbas, demanded recovery of an alleged debt for $7,000 by threatening Frank Fusca. The debt was allegedly owed by Frank's son, Patrick Fusca. Patrick had been incarcerated for unrelated matters on 7 October 2012.

30 Approximately one week after Patrick was incarcerated, the respondent and Mr Demirbas attended Frank's house - which was a corner property - to speak with Frank and his brother, Dominic Fusca. They demanded that Frank pay them the alleged debt which they said was owed because they had been supplying drugs to Patrick. They stated to Frank that, because Patrick was in prison, Frank would have to pay the debt. The respondent stated that he 'knew people inside' and threatened to have Patrick stabbed in prison if the debt was not paid. He then produced a handgun and displayed it to Frank and Dominic in a threatening manner. Frank and Dominic told the respondent that they would 'try and get some money together'.

31 A few days later, the respondent and Mr Demirbas had another meeting with Frank and Dominic at Frank's house. During this meeting, Frank explained that he would not be able to pay them any money. Dominic said he could give then $700 immediately, however, both the respondent and Mr Demirbas demanded full payment of the debt. Dominic believed that the respondent was carrying a firearm in his pocket during this meeting.

32 Further demands for payment of the debt by phone calls and text messages were made in the following weeks. On one occasion, the respondent telephoned Frank and threatened that Patrick was going to 'cop' it in prison if the debt was not paid. On another occasion, Mr Demirbas telephoned Frank and threatened that he was going to 'bash his head in' due to the unpaid debt.

33 Due to these threats, Dominic arranged for Kalston Randall to move in with Frank in order to provide some protection.

34 At approximately 7pm on 30 November 2012, Mr Demirbas and an unidentified male attended at Frank's house. Mr Randall answered the door. At Mr Demirbas's request, Mr Randall followed him around the corner where the respondent was waiting in a car. He exited the car and stood next to Mr Demirbas and then stated, 'Show him'. Mr Demirbas then produced a semi-automatic handgun from a bag he was carrying and stated, 'See you'll get this. Tell Frank he owes us. Tell him it's now eight grand.' Mr Randall responded along the lines of, 'You're not getting shit'.

35 Mr Demirbas then fired a warning shot into the fence of Frank's property. Mr Randall walked towards Mr Demirbas and stated that Frank would not be paying him any money. The respondent stated, 'Look, he's not even afraid of the gun'. Mr Demirbas then shot Mr Randall in his left foot and, when Mr Randall continued to advance towards him, shot him in his lower pubic region.

36 The respondent, Mr Demirbas and the unidentified male then hurriedly left the scene in the car.

37 Mr Randall was subsequently taken to hospital. As a result of the gun shots he suffered a penetrating pelvic injury, and consequently underwent surgery to divert bowel movements and drain his bladder by inserting a catheter to allow it to heal. He also suffered a superficial graze to the top of his left foot. He required major abdominal surgery to restore continuity of the bowel. He has since made a satisfactory physical recovery but has significant scarring.

38 On 6 December 2012, the respondent was arrested in a car park while he was in his girlfriend's car. The car was searched and the following items were located inside the respondent's backpack:

(a) two snap-lock bags each containing approximately 1 gram of a brown crystal substance and a snap-lock bag containing approximately 1 gram of a white crystal substance;

(b) a box containing drug paraphernalia, including two ice pipes; and

39 A search warrant was subsequently executed at the respondent's residence where three 50 ml vials labelled Stanozolol were located.

40 On 6 December 2012, the respondent was charged with blackmail (charge 1 on Indictment C13408411.1c), reckless conduct endangering life (charge 2 on Indictment C13408411.1c) and intentionally causing serious injury in relation to the shooting of Mr Randall. He was remanded in custody.

41 Between 14 January 2013 and 28 February 2013, the respondent attempted to have Frank retract his statement which incriminated the respondent and sign a new statement which exonerated the respondent. He did so by arranging for a fellow prisoner, Paul Azzopardi, to send a letter to his father, Tony Azzopardi, which was intended to then be given to Frank. The letter was sent in Paul's outgoing mail to avoid the authorities linking it to the respondent. It was intercepted by officers of the Prison Intelligence Office, who retained a copy of it, while the original was sent to Tony.

42 The letter contained a pro forma witness statement, which had been handwritten by the respondent, with blank spaces for names to be inserted. The statement relevantly provided:

(space left) had nothing to do with any debt. It was between (space left) my son, Me and my brother. He came past our house on 2 occasions but remained in our driveway while we spoke in the garage. He never produced a firearm or threatened us in any way. None of the text msg's sent were from (space left). (space left) never blackmailed me or my brother, never tried to stand over us. I don't know (space left) very well but he didn't do any of the things I previously said he did in my last few statements. I never spoke to (space left) over the phone, only ever saw him on 2 occasions, he shook our hands and walked to the driveway. His friend did all the talking, not (space left).
I apologize for writing a incorrect statement, I wasn't myself at the time, family issues, drug problems.

43 Handwritten instructions by the respondent were provided which suggested the names of five different criminal defence solicitors that could assist in drafting an alternate exculpatory witness statement.

44 On 31 January 2013, the police brief of evidence was served on the respondent. It contained the witness statements of Mr Randall, Frank and Dominic which implicated the respondent. Key witness statements from the police brief of evidence were subsequently provided to Tony.

45 The respondent used his contacts within the prison system to pass messages onto Patrick with the intention of pressuring him into asking Frank to withdraw his statement against the respondent.

46 In a number of telephone calls with his fiancé, Emine Kaya, the respondent sought to have Ms Kaya contact Tony in order for him to pressure Frank to change his statement. On a further occasion, the respondent said to Ms Kaya, 'So message him. Just say, "Hi, how you goin?" Say, "Serks wanted to know if you received his letter." Just make sure you check it. It's important.' On another occasion, he said, 'Can you message him and say Serks said, like urgently, "Have you got his letter?"... Say, like, - that his solicitor is constantly putting pressure ah, for the thing - um for the paper'. On a further occasion, he said, 'That letter - he would have received that today. If you were to urgently get a copy of that letter and give it to Red, that would be really good. Has what they should be exactly saying'.

47 A number of telephone calls were also recorded between Paul and Tony in which they discussed having the evidence against the respondent altered. On one occasion, the following exchange was recorded:

Tony: Yeah. Dominic come ... with me ... He come and bounce with me.

Paul: Yeah.

Tony: You know, tried to play mister fuckin' heavy on the phone ... I put his straight back in his fuckin' box ... I just said 'Listen cunt. Do this easy. Do it your way. Do it however you want. I don't really give a fuck. But, at the end of the day, you and your brother better come see me, 'cos I need to talk to youse ... I wanna tell you something here and now. Shut your fuckin' mouth.'

Respondent's criminal history and other relevant events

48 Before considering the respondent's personal circumstances, it is necessary to set out details of other offences committed by him and the sentences imposed for those offences. This is because those details are relevant to the application of the totality principle upon which the respondent relied in relation to the total effective sentence and the exercise of this Court's residual discretion.

49 The respondent has a significant criminal history - approximately 60 prior convictions or findings of guilt from about nine appearances in court. The majority of these were drug, deception, traffic, theft or burglary offences, some of which involved criminal damage.

50 On 18 June 2008 and 4 March 2010, the Magistrates' Court found that the respondent breached the conditions of two separate community based orders.

51 On 20 May 2009, Judge Pilgrim made an order sentencing the respondent to a total effective sentence of 18 months, which was wholly suspended for 30 months, for one charge of burglary, one charge of theft and two charges of handling stolen property.[13] The respondent had pleaded guilty to those charges.

52 Within 'a month or five weeks of the [suspended sentence] being imposed', the respondent committed 'a number of offences which were capable of having a term of imprisonment imposed' and thus breached Judge Pilgrim's order.[14]

53 On 16 February 2011, the respondent and three friends were involved in an affray near a tennis club where adults and children were playing, in the course of which he produced a handgun. The other participants in the affray were the father and brother of a former girlfriend of the respondent. The respondent was arrested on 3 April 2011 and was found to be in possession of one gram of ecstasy. He was charged with the offence of affray and the offence of possessing a drug of dependence. He was granted bail on 21 April 2011 after spending 18 days in custody.

54 On 29 August 2011, before Judge Gullaci, the respondent pleaded guilty to breaching Judge Pilgrim's order of 20 May 2009, resulting in the making of an order on that day which restored the 18 month sentence and fixed a non-parole period of 12 months.[15]

55 Having served the non-parole period in Judge Gullaci's order of 29 August 2011, on 28 August 2012, the respondent was released on parole. Between mid-October 2012 and 30 November 2012, while the respondent was on parole and on bail in respect of the affray and possession charges, he committed the blackmail offence and the reckless conduct endangering life offence ('RCEL offence'). Following his arrest for the blackmail and RCEL offences on 6 December 2012, his parole was cancelled on 7 December 2012. He then served a 'parole sentence' of 6 months' imprisonment until 6 June 2013.

56 On 17 October 2013, the respondent pleaded guilty to the charge of affray and the charge of possessing a drug of dependence. On 23 October 2013, he was sentenced by Chief Judge Rozenes to 12 months' imprisonment with a non-parole period of 6 months on the affray charge and was fined $500 on the possession charge.[16] He was not granted parole and consequently served the entirety of that 12 month sentence in custody. Having served 18 days of pre-sentence detention, the respondent's sentence concluded on 4 October 2014.

57 On 20 October 2014, Judge Dean sentenced the respondent to a total effective sentence of 4 years with a non-parole period of 2 years. Having regard to the pre-sentence detention of 154 days between 7 June 2013 and 22 October 2013 and 4 October 2014 until 20 October 2014, the head sentence will expire on 15 May 2018 and the respondent will be eligible for parole on 15 May 2016.

58 In summary, the respondent's history of incarceration between 29 August 2011 and his sentence for the Subject Charges on 20 October 2014 is as follows:

(a) he was in custody from 29 August 2011 until 28 August 2012 on the sentence imposed by Judge Pilgrim which was restored by Judge Gullaci;

(b) he was on parole and on bail from 28 August 2012 until he was arrested on 6 December 2012 for the blackmail and RCEL charges;

(d) of the period of 683 days that he spent in custody between 6 December 2012 and 20 October 2014:

(i) six months were attributed to the 'parole sentence', covering the period from 7 December 2012 until 6 June 2013;

(ii) 154 days were attributed to pre-sentence detention for the Subject Charges, covering the period from 7 June 2013 until 23 October 2013 and 4 October 2014 until 20 October 2014; and

(iii) 12 months (less 18 days pre-sentence detention served from 3 April 2011 to 21 April 2011) were attributed to the affray conviction, covering the period from 23 October 2013 until 4 October 2014.

59 The respondent was born in Turkey and migrated to Australia with his family at the age of four. As a child, he had an abusive relationship with his father, which has since improved. His parents divorced when he was 24 years of age.

60 He left school in year 11 to pursue a career in soccer. He excelled at soccer and represented Australia in the Under 17 World Championship. He was contracted to play for a professional soccer team in the Victorian Premier League at the age of 15. He also attended Australian soccer team training camps and, between the ages of 15 and 18, travelled to various countries to try out with a number of professional clubs. However, injuries interrupted his soccer career and by the age of 23 he was unable to compete at a professional level.

61 The respondent worked in his father's cabinet-making business from time to time after he left school.

62 The respondent's drug use started at around the age of 18 to 19, after he sustained injuries and had time to himself. At around the age of 22 to 23, he commenced a relationship with an older woman who was a heavy ice user. At around this time, his drug use escalated. This in turn led to his criminal offending.

63 A number of character references were tendered at the plea from his friends, family and fiancé. His older sister's former husband, who owns an engineering business, stated that he would provide the respondent with employment upon his release from custody.

64 A report by Dr Aaron Cunningham, forensic psychologist, was tendered. Dr Cunningham assessed the respondent at Port Philip Prison on 3 October 2014. In his report, Dr Cunningham opined that the respondent suffered from an Adjustment Disorder with mixed anxiety and depressed mood which was precipitated by witnessing the shooting of Mr Randall and being incarcerated in solitary confinement for three months in 2011.

65 At the time of the plea, the respondent was engaged to Ms Kaya. During his period of imprisonment, he received visits from her and his family. A urine screen indicated that he had been drug free during his time in prison.

Pre-trial hearing, plea and sentencing remarks

66 Judge Dean conducted a pre-trial hearing over 3 days commencing on 22 September 2014.

67 On the first day of that hearing, the prosecutor, Mr Gibson, filed two indictments - Indictment C13408411.1a and Indictment C13408411.1b. The charges contained in Indictment C13408411.1b are set out in the table at [23] above. The respondent pleaded guilty to all of those charges on that day.

68 The charges contained in Indictment C13408411.1a were the subject of discussion during the second day of the pre-trial hearing on 23 September 2014. They were a charge of blackmail and three alternative charges relating to the shooting of Mr Randall, namely, an intentionally causing serious injury charge, a recklessly causing serious injury charge and a reckless conduct endangering life charge. The judge asked Mr Gibson what sentence had been imposed on Mr Demirbas. Mr Gibson indicated that Mr Demirbas had been sentenced to 6 years' imprisonment with a 3 year non-parole period 'on a plea to intentionally cause serious injury'.[17] The judge inquired as to whether this was the only charge for which Mr Demirbas was sentenced, to which Mr Gibson responded: 'One count but the blackmail was part of the ... [s]urrounding facts and part of the narrative'.[18]

69 The following exchange between the judge and Mr Gibson then took place:

HIS HONOUR: Why did [Mr Demirbas] get such a disparate minimum term?

MR GIBSON: I don't know.

HIS HONOUR: Has he got criminal history?

MR GIBSON: He's got a criminal history, not as -

HIS HONOUR: Similar to -

MR GIBSON: Not as extensive as this accused.

HIS HONOUR: But he's the principal offender.

MR GIBSON: He is the principal offender.

HIS HONOUR: So on a plea (indistinct) get less.

MR GIBSON: Well he's got a more extensive criminal history.

HIS HONOUR: Yes but you get less.

MR GIBSON: On -

HIS HONOUR: He's not the principal offender.

MR GIBSON: Your Honour's right, on - could I say -

HIS HONOUR: Generally -

MR GIBSON: Well generally speaking, I mean as we know and Your Honour notes -

HIS HONOUR: I mean you can't get into it but if the matter resolved -

MR GIBSON: If the matter resolved -

HIS HONOUR: If Mr Oksuz pleaded to the same thing that Mr [Demirbas] pleaded to then all things being equal Mr Oksuz would receive a lesser penalty than Mr [Demirbas].

MR GIBSON: All things being equal.[19]

70 Mr Gibson then drew attention to the 'lateness' of the respondent's plea as a factor that was relevant to his sentencing disposition. The following exchange then took place:

HIS HONOUR: Yes. I've never been terribly troubled by pleas that are entered at the last minute.

MR GIBSON: No -

HIS HONOUR: I mean if ever there was a good argument that a complex trial has been avoided it's when the trial is just about to start.

MR GIBSON: Absolutely and before witnesses are called. But I mean obviously if someone puts their hand up at a committal mention before there's a contested committal.

HIS HONOUR: Well maybe.

MR GIBSON: I mean that's a matter that goes in favour of the accused and -

HIS HONOUR: Yes it might bear on all this.

MR GIBSON: An earliness of plea is one of the relevant sentencing factors, I keep seeing that in submissions at the Court of Appeal -

HIS HONOUR: And this is going to be a difficult trial.

MR GIBSON: Sorry?

HIS HONOUR: This is going to be a difficult and complicated trial so Mr Oksuz would obviously be entitled to [a] considerable discount.

MR GIBSON: We would be the first to admit the utility of any plea of guilty Your Honour.[20]

71 After a brief adjournment, counsel for the respondent, Mr Saunders, indicated that his client had heard some of what the judge had previously said about 'the discount for a plea of guilty' and required a further adjournment to confer with his counsel.[21] The hearing was adjourned until the next day.

72 The charges having been settled between the parties, on the third day of the pre-trial hearing on 24 September 2014, Mr Gibson filed Indictment C13408411.1c and the judge consequently stayed Indictment C13408411.1a. The charges contained in Indictment C13408411.1c are set out in the table at [23] above. The respondent pleaded guilty to those charges on that day.

73 At the plea on 10 October 2014, the Crown tendered a prosecution opening which became Exhibit 1. Paragraph 24a, which was obviously inserted into the document after it was first prepared, stated the following:

On the 7th May, 2013 Police were contacted by the solicitor for the [respondent], Mr Adrian LEWIN. Mr Lewin told D/S/C Peita MEASHAM that he had been instructed by the [respondent] that the firearm was still hidden at [a particular address]. This was the former residence of the co-accused, DEMIRBAS. Police were further advised that the firearm was secreted under the sink in the laundry and they may need to lift some tiles in order to find it.

74 The prosecution opening, which was read out on the plea, stated that the basis of the RCEL charge was that the respondent acted, on a complicity basis, with Mr Demirbas who produced the handgun and discharged shots in the direction of Mr Randall. The prosecution acknowledged that the charge to which the respondent pleaded guilty did not involve him sharing, or having imputed to him, the same intent as Mr Demirbas, who had pleaded guilty to a charge of intentionally causing serious injury. [22]

75 The judge stated that the respondent's guilty plea had spared the community the cost and inconvenience of a complex trial and that, to some degree, this was evidence of his remorse. His plea of guilty was taken into account in mitigation of sentence.[23]

76 The judge described the respondent's criminal history as 'extensive' and observed that he had breached a number of sentencing dispositions ordered to facilitate his rehabilitation.[24] He also noted that, in this case, the respondent's offending occurred shortly after he was released from prison on parole.[25]

77 He described the respondent's offending as a serious course of conduct that took place against a background of drug-related activities. He characterised the respondent as acting, in effect, as a stand-over man, with no regard for the persons he was threatening. He observed that the production and potential use of a handgun in a public place was a serious offence. He also described the attempt to pervert the course of justice as a serious example of that offence.[26]

78 The judge referred to the need to punish the respondent for his conduct and to impose a sentence that was 'calculated to deter [him] and others from offending in this way'.[27] He stated that protection of the community was a relevant sentencing consideration in this case.[28]

79 In respect of the respondent's personal circumstances, the judge accepted that his development was disrupted as a result of his father's abuse.[29] He also accepted that the respondent suffered from depression and anxiety.[30] He accepted, on the basis of the character references tendered, that the respondent had a number of positive qualities and observed that he was in a stable relationship and had family support.[31] Notwithstanding this, the judge stated that any realistic assessment of the respondent's prospects of rehabilitation had to be guarded because it was dependent upon him remaining drug free and disassociating himself from persons engaged in drug-related crime.[32]

80 The judge stated that he had 'particular regard' to the principle of totality and the fact that the respondent had been in custody since 6 December 2012. The judge also stated that he had regard to the sentence imposed on Mr Demirbas.[33]

81 Before turning to the grounds of appeal, reference must be made to the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury in relation to the shooting of Mr Randall. That sentence is said to be relevant to the parity principle upon which the respondent relied in relation to the blackmail and RCEL offences and the exercise of the Court's residual discretion.

82 Mr Demirbas (then aged 26) pleaded guilty to one charge of intentionally causing serious injury and three charges of trafficking in a drug of dependence. The prosecution opening, under the heading 'Background', set out the circumstances of the blackmail offence committed by the respondent and Mr Demirbas between mid-October and late-November 2012. The description of this offence was in almost identical terms to the description of the blackmail offence in the prosecution opening read out on the plea of the respondent.[34]

83 Mr Demirbas was sentenced by Judge Smallwood to 5 years and 6 months' imprisonment for the charge of intentionally causing serious injury and 9 months for each of the three charges of trafficking. It was directed that 6 months of the sentence imposed on one of the trafficking charges be served cumulatively, making the total effective sentence 6 years. A 3 year non-parole period was fixed.[35]

84 In imposing this sentence, Judge Smallwood referred to the circumstances of Mr Demirbas's offending. Before setting out the details of the shooting of Mr Randall on 30 November 2012, he stated:

The circumstances of the offending are that you were known to the victim. The victim had been engaged, it would seem, by a man called Frank [Fusca] to protect him from what were at least perceived as serious threats from you and others. The threats were over [an] amount of money said to be owing by Frank [Fusca's] son, to you, of something in the order of $7,000. Attempts were made by a threat to get the money paid, but it was not.[36]

85 After setting out the events of 30 November 2012 and Mr Randall's injuries, Judge Smallwood relevantly stated:

It is a difficult sentencing task analysing the circumstances such as this. The fact of the matter is that you took a gun to do some debt collecting. ...

It is a serious example of intentionally causing serious injury, and calls for the application of general and specific deterrence ...

There is also the question of denunciation and appropriate punishment. In these circumstances, one has to try and take into account the milieu in which it all occurred, but as I have said, I think I said during the course of the plea, if you take a gun to debt collect you (indistinct) mitigated afterwards.

The situation is that a significant custodial sentence is absolutely inevitable. It is hard to place this into a range because as the Crown have pointed out, there are very few instances that can be found of shooting, intentional serious injuries. I am always reluctant to try and grade these matters, but as I have made it clear, I think it is a serious example of what is indeed a serious crime.

...

In the end, what you have to be sentenced for is a serious example. I am not here to sit here and lecture you, but if you want to go around shooting people to enforce drug debts, that is what it was, then you have to pay the consequences. [37]

86 Judge Smallwood also had regard to Mr Demirbas's prospects of rehabilitation, which he described as 'very good' if Mr Demirbas was 'fair dinkum'.[38] He also referred to the fact that this was Mr Demirbas's first time in prison, that he was relatively young, that he had 'very powerful and strong family support' and that he was 'not an inherently violent person'.[39]

Individual sentence for attempting to pervert the course of justice

87 The Crown contended that, having regard to the seriousness of this particular example of attempting to pervert the course of justice, the maximum penalty for that offence, the relevance of general deterrence in sentencing for that offence and sentences imposed in comparable cases, it was clear that the sentence imposed on the APCJ charge was manifestly inadequate.

88 The Crown submitted that, although the judge acknowledged that the respondent's conduct constituted a serious example of the attempt to pervert the course of justice offence ('APCJ offence'),[40] the sentence that he imposed failed to reflect this fact. The Crown referred to the following considerations, which were said to point to the seriousness of the respondent's offending:

(a) Frank had already been threatened by the respondent at the time he attempted to have Frank change his evidence and thus the respondent sought to prey on Frank's fear;

(b) the attempt occurred in the context of Mr Randall having been shot by Mr Demirbas;

(c) the attempt was calculating and involved methods of avoiding detection;

(d) the respondent had used three others, namely, Paul, Tony and his fiancé, Ms Kaya, to carry out the offence;

(e) on behalf of the respondent, Tony made contact with Dominic, telling him: 'you and your brother better come see me ... I wanna tell you something here and now. Shut your fuckin' mouth'; and

(f) there was little to mitigate the respondent's culpability for this offending.

89 The Crown drew attention to the fact that attempting to pervert the course of justice carries a maximum penalty of 25 years. The Crown relied on various authorities to submit that the sentence imposed on the respondent should reflect or have some relationship to this maximum penalty.[41]

90 The Crown cited decisions of this Court which have recognised that the offence of attempting to pervert the course of justice strikes at the heart of our legal system and the administration of justice.[42] The Crown noted that offenders who have been remanded on serious charges would greatly benefit if witnesses against them were persuaded to change or withdraw their evidence. Accordingly, so it was said, general deterrence should have constituted a significant, if not paramount, sentencing consideration in this case and a sentence should have been imposed that was sufficiently stern to deter accused persons from interfering with witnesses. The Crown submitted that the sentence passed was inadequate to meet this purpose.

91 Finally, the Crown observed that, in a number of other cases dealt with by this Court, sentences of between 2 and 4 years have been imposed for the offence of attempting to pervert the course of justice.[43] The Crown placed particular emphasis on R v Galea[44] and Tognolini v The Queen,[45] where the relevant offenders were sentenced and resentenced, respectively, to terms of 4 years' imprisonment. According to the Crown, the respondent's conduct was more serious than that of the offender in Tognolini v The Queen. The Crown contended that, when regard was had to the sentences imposed in the abovementioned cases, it became clear that the respondent's sentence was manifestly inadequate.

92 The respondent observed that a wide variety of conduct may fall within the offence of attempting to pervert the course of justice and, consequently, that the sentences imposed for this offence vary widely.[46] In this light, and having regard to the context in which he was sentenced on the APCJ charge, he contended that the sentence was not manifestly inadequate. That context was said to be as follows:

(a) he pleaded guilty to all of the charges after the Crown withdrew some charges;

(b) his guilty plea entitled him to a utilitarian discount and was to some degree evidence of remorse;

(d) he was in a stable relationship and had family support;

(e) he had prospects of rehabilitation, although this was dependent upon him remaining drug free and disassociating himself from persons engaged in drug-related crime; and

(f) the matters set out at [48] to [58] above, which were relevant to the judge's application of the principle of totality.

93 The respondent submitted that, by reason of the matters referred to at [92] above, it was open to the judge to moderate the individual sentences and level of cumulation.

94 In my opinion, the individual sentence of 6 months for the APCJ charge is derisory for the following reasons.

95 First, the sentence is entirely out of proportion to the seriousness of the offence as reflected in the maximum penalty of 25 years and judicial pronouncements such as those made in R v Johns[47] and DPP v Aydin.[48] The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence - or giving truthful evidence - in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown's ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.

96 Secondly, the sentence failed to reflect the serious nature of the offending in the present case. I agree with the Crown's submission that the matters set out at [88] above are indicative of the gravity of the respondent's offending. The communications to Patrick through the prison system and the communications to Dominic by Tony were part of a course of persistent and particularly grave conduct aimed at intimidating Patrick and Frank and forcing Frank to recant his version of events which implicated the respondent. The intended and likely effect on Frank must be seen in the context of the threats of violence constituting the blackmail offence and the serious gunshot injuries inflicted on Mr Randall.

97 The serious nature of the offences with which the respondent had been charged and for which he sought to avoid punishment - namely blackmail and intentionally causing serious injury - are relevant to assessing the seriousness of the APCJ offence.

98 The judge found that the respondent's conduct was a serious example of the offence of attempting to pervert the course of justice. However, as submitted by the Crown, this finding is not reflected in the sentence imposed.

99 Thirdly, the offending involved detailed planning, subterfuge and the involvement of third parties. The draft statement that the respondent prepared for adoption by Frank was carefully drafted. In order to avoid detection, the respondent made no reference to himself in the statement and also avoided direct communication with Frank. Instead, he sought to make his demands known through third parties, namely, Paul, Tony and his fiancé, Ms Kaya. The respondent even went to the trouble of recommending five criminal defence solicitors to assist Frank in making a new statement. These protracted efforts over the period from 14 January 2013 until 28 February 2013 demonstrate that the respondent was unrelenting in his endeavour to avoid being brought to justice for the blackmail offence and the offences relating to the shooting of Mr Randall.

100 Fourthly, the sentence of 6 months was substantially below the range of sentencing options reasonably available to the judge. As the Crown pointed out, individual sentences of between 2 and 4 years have regularly been imposed for the offence of attempting to pervert the course of justice.

101 The circumstances of the present case are much more serious than those in R v Galea[49] where this Court upheld a sentence of 4 years' imprisonment with cumulation of 1 year for an offender who pleaded guilty to a charge of attempting to pervert the course of justice. The offender, who was in custody awaiting trial for armed robbery, sought to influence a fellow prisoner to make a false confession to police that he had committed the armed robbery, by offering him $50,000. The offending in that case did not include key features of the present case, such as the history of threats and intimidation against the key prosecution witness and persons associated with him, elaborate planning, persistent conduct over several weeks, and the involvement of other parties within and outside the prison system.

102 The circumstances of the present case are also more serious than those in Tognolini v The Queen,[50] where the 46 year old offender was resentenced to 4 years' imprisonment. In that case, the offender persuaded two teenage girls to attend a solicitor's office to make false statements that three other girls (one of whom was aged 14) who had made allegations that the offender had committed sexual offences against them were liars. The offender had given the two girls drugs and money as inducements and had made a strangling gesture towards one of the girls by putting his hand around his throat when she was looking at him. I accept that the age and vulnerability of the girls was an aggravating circumstance in that case and that the offender's plea of not guilty deprived him of a sentencing discount. Nevertheless, the offending conduct in that case lacked a number of the key features of the present case that are referred to at [101] above.

103 The facts of the present case bear some similarity to those in R v Zaydan[51] where the offender, who was remanded in custody on a charge of kidnapping, arranged for an associate to deliver a letter to the girlfriend of the kidnap victim which purported to alter his witness statement. The offender was sentenced to 4 years' imprisonment on a charge of attempting to pervert the court of justice, 2 years of which were cumulated on the base sentence for the kidnap charge.

104 Fifthly, the sentence is insufficient to provide any meaningful deterrence to other accused persons - particularly those in custody - from committing similar offences. It is inconsistent with decisions of this Court which have emphasised that general deterrence is a significant sentencing consideration for the offence of attempting to pervert the course of justice.[52] Having regard to the respondent's criminal history and the escalation in the seriousness of his offending in the lead up to the commission of the APCJ offence, the sentence also failed to provide adequate specific deterrence. Once again, although the judge referred to the importance of general and specific deterrence, the sentence imposed failed to adequately reflect the importance of these sentencing considerations in the present case.

105 Sixthly, the mitigating circumstances upon which the respondent relied, as summarised at [92] above, did not provide a sound basis for imposing a lenient sentence when regard is had to the respondent's criminal record and the judge's assessment of the respondent's prospects of rehabilitation as 'gua[53]ed'.53 I will discuss the aggravating and mitigating circumstances in more detail when I consider the total effective sentence. For present purposes, I note that the APCJ offence was committed while the respondent was in custody awaiting trial, not only on the blackmail and RCEL charges, but also on the affray and possess[54]n charges.54

106 The above considerations compel a conclusion that the sentence of 6 months for the APCJ charge is manifestly inadequate.

107 The Crown contended that the sentence imposed on the respondent for blackmail did not reflect the seriousness of his offending. The Crown drew attention to the following considerations which were said to demonstrate the serious nature of the respondent's offending:

(a) the nature of the threats made by the respondent, namely to have Frank's son, Patrick, stabbed;

(b) the production of the handgun to underscore the seriousness of the threats;

(d) the context for the threats, being an attempt to enforce a drug debt; and

(e) the fact that the threats occurred over weeks, and involved multiple visits to Frank's house.

108 The Crown also submitted that the sentence was wholly insufficient to denounce the offending conduct and to give effect to the principle of general deterrence which was said to be particularly significant in cases of blackmail. In support of this proposition, the Crown relied upon R v Vo[55] where this Court stated that a sentence of 3 years with a non-parole period of 2 years for a single charge of blackmail was unexceptional.[56]

109 According to the Crown, the respondent's conduct called for a particular emphasis on general deterrence as a sentencing consideration because it occurred against a background of lawlessness, namely drug trafficking. The Crown argued that resort to violence and threats was a common means of recovering debts in such a context and, accordingly, that context gave rise to a heightened need for victims to be protected and perpetrators to be deterred.

110 The respondent observed that the judge had given weight to general deterrence.[57] He submitted that there was no foundation for the Crown's assertion that the seriousness of his offending was not reflected in his sentence, having regard to the context in which his sentence was imposed, which is set out at [92] above.

111 The respondent noted that the Crown had not identified any decision of this Court which supported its contention that the sentence imposed on him was manifestly inadequate. He further noted that in R v Vo, the offender was sentenced to 3 years' imprisonment for blackmail. Relevantly, in that case, the offender had not pleaded guilty and the sentence imposed on him was not discounted on that basis. Accordingly, the respondent argued that it could hardly be said that the sentence imposed on him - 2 years and 6 months' imprisonment - was manifestly inadequate.

112 There is considerable force in the Crown's submission that the sentence of 2 years and 6 months for the charge of blackmail does not sufficiently reflect the gravity of the respondent's offending. Having regard to the matters upon which the Crown relied, as summarised at [107] above, that offending can only be described as a very serious example of the offence of blackmail. This is particularly so in the light of the persistence of the threatening conduct over six weeks, the production of a handgun to amplify the fear of harm, the preying on the natural concerns of a father for the safety of his son who is in a vulnerable position in prison and the background of dealings in drugs. Although the harm that was threatened was directed at Patrick rather than Frank personally, Frank was obviously sufficiently concerned for his own safety to agree to Dominic's proposal that Mr Randall move in with Frank to provide protection. The threats were meant to be, and were, taken very seriously.

113 I agree with the observations in R v Vo that blackmail is frequently difficult to detect; that this is particularly so when an offender preys on the fear his or her conduct inspires; that the offence requires the victim to be put and kept in fear; and that it is essential that those with the courage to report the offence or give evidence know that the offender will be appropriately punished.[58] It follows that general deterrence is a very important sentencing consideration. The sentence imposed on the respondent failed to give sufficient weight to this consideration.

114 In my opinion, the respondent's offending was more serious than that of the offender in R v Vo. That case involved a single occasion of threatening conduct that was directed to the owner of a grocery store who was offered 'protection' in return for a weekly payment of $300 to $350 or the free supply of goods. The value of the goods taken on the single occasion with which the offender was charged was $52.74. The offender was 21 years of age at the time of the offence, which he committed with a group of other young men. Although the offender pleaded not guilty and the offending conduct - which was committed while he was serving a suspended sentence - contemplated ongoing payments or the supply of free goods, there were significant mitigating circumstances. Those circumstances included the offender's youth and his limited criminal history. Furthermore, unlike the offending in the present case, the offender in Vo did not make threats over an extended period of weeks, no firearms were involved and there were no threats to the safety of the immediate family of the victim. I also note that the maximum penalty for blackmail at the time that the offence was committed by the offender in Vo was 12 years and 6 months' imprisonment rather than 15 years.

115 The offending in the present case was significantly aggravated by the fact that it was committed a few weeks after the respondent was released on parole and while he was on bail.[59]

116 For the above reasons, the sentence of 2 years and 6 months for the blackmail charge was extremely lenient. It may be said that the judge gave insufficient weight to the aggravating circumstances. Nonetheless, I am not satisfied that the Crown has demonstrated that, viewed on its own, the sentence was manifestly inadequate. I will consider further below the order for cumulation of 6 months on the blackmail charge in the context of the total effective sentence.

117 The Crown submitted that the total effective sentence imposed on the respondent reflected the inadequacy of the sentences on the blackmail and APCJ charges. The Crown further stated that the period of 6 months' cumulation imposed for each of those charges did not sufficiently reflect the gravity of the respondent's criminality.

118 The Crown observed that the judge appeared to have moderated the sentence on the basis of the totality principle.[60] The Crown accepted that this principle required the judge to take into account the time the respondent served in custody after his parole was cancelled on 7 December 2012 and the time he served following the sentence of imprisonment imposed on 23 October 2013 for the affray charge. However, the Crown contended that, in applying the totality principle, the judge was also required to consider the separate criminality involved:

(a) in the matters for which the respondent was serving time in breach of parole;[61] and

(b) in the affray, which involved the respondent producing a handgun.

119 Accordingly, so it was said, the principle of totality could not justify the leniency of the total effective sentence imposed on the respondent.

120 The Crown submitted that the fact that the respondent was in the community in the period from 28 August 2012 until 6 December 2012 meant that any time that he spent in custody prior to 6 December 2012 did not bear upon the totality principle.

121 The Crown also submitted that the totality principle had less force in the present case than in R v Mill.[62] This was said to be because, in that case, the offender had committed three armed robberies in Victoria and Queensland in quick succession and the issue was whether the time he had spent in custody in Victoria for the two Victorian offences should be taken into account when he was being sentenced in Queensland for the Queensland offence. The Crown contended that, in the present case, there was a significant temporal gap between the completion of the previous sentence and the offences, which were committed while the respondent was in the community on parole and on bail.

122 The Crown submitted that, as the blackmail and RCEL offences were committed while the respondent was on parole and on bail,[63] s 16(3B) and (3C) of the Sentencing Act 1991 applied and substantially qualified the operation of the totality principle. Those provisions state:

16 Sentences - whether concurrent or cumulative

...

(3B) [E]very term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.

...

(3C) Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

123 The Crown also contended that the respondent's criminal history and personal circumstances did not warrant leniency. The Crown relied particularly on the judge's findings that the respondent had breached a number of sentencing dispositions ordered to facilitate his rehabilitation[64] and that the judge was 'guarded' about the respondent's prospects of rehabilitation.

124 The respondent submitted that, as the individual sentences on the blackmail and APCJ charges were not manifestly inadequate, the total effective sentence was also not manifestly inadequate.

125 Although the respondent acknowledged that the totality principle required moderation in order to give effect to s 16(3B) and (3C) of the Sentencing Act 1991, he contended that the judge was correct in placing significant reliance on that principle in arriving at an appropriate total effective sentence. By reference to the events summarised at [51] to [58] above, the respondent submitted that, in giving effect to the totality principle, the judge was required to treat him as having been in custody continuously since 29 August 2011, save for the period of just over three months from 28 August 2012 until 6 December 2012 when he was on parole. The period between 29 August 2011 (when the respondent was sentenced by Judge Gullaci) and 20 October 2014, (when the respondent was sentenced by Judge Dean), comprises approximately 3 years and 2 months.

126 According to the respondent, Mill v The Queen[65] required the judge to take into account the totality of his incarceration in determining the total effective sentence to be imposed. On this basis, it was said that the total effective sentence of 4 years (less pre-sentence detention of 154 days) that was imposed by Judge Dean had to be seen in the context of the preceding incarceration of 3 years and 2 months. This was because it had the effect of extending the respondent's total period of custody to 6 years and 9 months, less the period of just over 3 months (from 28 August 2012 until 6 December 2012) when the respondent was in the community. The respondent submitted that the interruption of three months to his continuous incarceration did not preclude the totality principle covering the whole period since 29 August 2011.

127 The respondent relied on the fact that, as he had already served the entirety of the sentences imposed by Judge Gullaci and Chief Judge Rozenes by the time Judge Dean sentenced him on 20 October 2014, he was deprived of the opportunity of any concurrency for the sentences imposed by Judge Gullaci and Chief Judge Rozenes. He also emphasised that he was not granted any part of the 6 months' parole authorised by Chief Judge Rozenes' sentence.

128 The respondent also submitted that, as the periods from 6 December 2012 until 6 June 2013 and from 23 October 2013 until 4 October 2014 could not be treated as pre-sentence detention for the Subject Charges under s 18(1) of the Sentencing Act 1991,[66] they should be treated as 'Renzella time'.[67] He submitted that this time was 'doubly warranted' because he was serving other sentences as well as being on remand for the Subject Charges, and thus justified moderation of the total effective sentence.

129 Thus the respondent argued that the orders for cumulation of 6 months for the blackmail and APCJ charges had to be assessed in the context of a notional total effective sentence of 6 years and 9 months (less the period from 28 August 2012 until 6 December 2012) - rather than 4 years - with a notional non-parole period of 4 years and 6 months. When viewed in that light, those orders for cumulation were said to be appropriate, as was the total effective sentence.

130 The respondent submitted that, if this Court re-sentenced him and imposed a higher individual sentence for the APCJ charge, the totality principle required that there be limited cumulation, with the result that there would likely be no increase in his total effective sentence. Any increase in the amount of cumulation for the APCJ charge would be so minor, so it was said, that it would constitute 'tinkering'. In these circumstances, he contended that this Court ought exercise its discretion and reject this ground of appeal.[68]

131 The totality principle requires that, where a court sentences an offender for multiple offences, the overall sentence must be a 'just and appropriate measure of the total criminality involved'.[69] This principle is usually given effect by ordering substantial concurrency between individual sentences. However, another course that may be suitable in some cases is to reduce individual sentences below what is usually regarded as appropriate in order to achieve a proportionate outcome.[70]

132 The principle is also applicable where an offender is sentenced while he or she is serving a sentence of imprisonment for other offences. In Mill v The Queen,[71] the High Court stated that, in fixing a head sentence and a non-parole period, the sentencing judge must take into account the earlier sentence in determining what is a just and appropriate sentence.[72] This is so even if this results in a sentence which fails to reflect adequately the seriousness of the crime in respect of which it is imposed.[73]

133 In Koumis v The Queen,[74] Lasry AJA, with whom Kaye AJA agreed, stated that, in imposing a sentence on an offender for an offence committed while on parole for an earlier offence, it was appropriate for a sentencing court to consider the total period that the offender would spend in custody, including the time the offender served in custody prior to being released on parole, as part of the totality principle.[75] In reaching this conclusion, Lasry AJA disagreed with the earlier cases of McCartney v The Queen[76] and Waugh v The Queen[77] which held that, in determining the total period that an offender would spend in custody, a sentencing court should only have regard to the additional 'parole sentence' which the offender would be required to serve.[78] Neave JA held that the correctness of this earlier authority could only be determined by a five member bench of this Court.[79]

134 In my opinion, the question of whether a period in custody preceding an offender's release on parole is to be taken into account in the application of the totality principle when the offender is being sentenced for offences committed while on parole, will depend on the length of the period that has elapsed between the release on parole and the subsequent re-incarceration for the offences committed on parole. In other words, the question depends on the length of the interruption to the offender's period of incarceration resulting from his or her release on parole. The shorter the duration of the interruption, the greater the weight that can be given to the pre-parole period in custody. For example, an interruption of one day would not preclude the application of the totality principle to the pre-parole period and would not diminish its weight. An interruption of three months, on the other hand, would be sufficiently long to significantly diminish the weight that could be given to the pre-parole period for the purposes of the totality principle.

135 It follows that, while the respondent's incarceration prior to 6 December 2012 is relevant to his personal circumstances and as general background, little weight can be given to it in the context of the totality principle. The period of incarceration that engages the totality principle is the period commencing on 6 December 2012. It follows that the effect of the total effective sentence of 4 years which is the subject of appeal is to extend his incarceration to a total of 5 years and 6 months, from 6 December 2012 until 15 May 2018.[80] That period comprised:

(a) Six months for the 'parole sentence', which related to Judge Pilgrim's sentence for one charge of burglary, one charge of theft and two charges of handling stolen property.[81] Those offences were committed before 20 May 2009.

(b) Twelve months for the affray charge, which related to the events of 16 February 2011.[82]

(c) Four years for the Subject Charges in respect of which the offending took place between mid-October 2012 and 28 February 2013.[83]

136 Subject to my observations at [147] below about s 16(3B), I reject the Crown's submission that s 16(3B) and (3C) of the Sentencing Act 1991 had any direct relevance in the present case. This is because those provisions require cumulation where, at the time an offender is sentenced, part of a term of imprisonment for another offence in respect of which the offender was released on parole or on bail remains [84]completed.84 In the present case, at the time that Judge Dean sentenced the respondent, he had completed all previous sentences of imprisonment.

137 In my opinion, the total effective sentence of 4 years for the separate offences of blackmail, reckless conduct endangering life and attempting to pervert the course of justice - when viewed in the context of the total incarceration of 5 years and 6 months commencing on 6 December 2012 for these and the other offences referred to at [135] above - was wholly outside the range of sentences reasonably open to the judge. I have reached this conclusion for the following reasons.

138 First, as discussed at [94] to [105] above, the individual sentence of 6 months for the APCJ charge was manifestly inadequate. Such a short period failed to adequately reflect the seriousness of the respondent's offending conduct which was separate and distinct from the conduct that constituted the blackmail and RCEL offences.

At a glance

Court

Decision date

Before

Source

Judgment (546 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (26)