DPP v Torney [2005] VSCA 187

2 This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent on 22 counts of being a prohibited person in possession of a firearm and one count of the possession of explosives.

3 It arises against the following background.

4 On 22 March 1999, police recovered from premises, occupied by the respondent at Fontein Street, West Footscray, 12 rifles and a shotgun that had been stolen approximately two months earlier from a self storage complex in South Melbourne. They also located a stun gun, a shotgun, a machine pistol, four other rifles one of which had a mounted scope, a revolver, a silencer and a quantity of detonators.

5 The respondent, who has convictions for armed robbery and murder, and who was on parole for the latter offence at the time, was a prohibited person under the Firearms Act 1996. The possession of a firearm, contrary to s.5(1) of that Act which encompassed counts 1-21 on the presentment, was punishable by the imposition of a maximum sentence of imprisonment of seven years, the offence alleged in count 22 which related to the possession of a silencer carried a possible sentence of four years' imprisonment and the possession of explosives (count 23) (an offence under the Crimes Act 1958) carried a possible sentence of five years' imprisonment. It is to be noted that since the commission of these offences the maximum penalties under the Firearms Act have been significantly increased and at least one new offence created.

6 The respondent was arrested and remanded in custody in relation to these matters and a very large number of other unrelated offences. He was for these various matters, on 1 June 2000, committed to stand trial. Later, the presentment made against him, which contained an enormous number of counts, was severed. The proceedings thereafter proceeded through the court system, in circumstances to which I will return, until eventually a presentment containing the counts set out above, and to which he entered pleas of guilty, was filed over on 10 December 2004.

7 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 11 February 2005, imposed a term of imprisonment for three months on each count, to be served concurrently, and the service of the whole of which was suspended for 12 months.

8 The Director of Public Prosecutions contends that this sentence is manifestly inadequate, asserting that:

"In sentencing the respondent to 3 months imprisonment on each count and in ordering that the total effective sentence of 3 months imprisonment be wholly suspended for 12 months, the learned sentencing judge:

(a) failed to adequately reflect the gravity of these offences generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(d) gave insufficient weight to the respondent's relevant prior criminal history;

(e) gave too much weight to factors in mitigation; and

(f) gave insufficient weight to the maximum penalties applicable to these offences."

9 There is normally no need to recite the principles which govern appeals against sentence by the Director of Public Prosecutions. They are now well known and are regularly applied in this Court. However, in view of the content of the sentencing judge's report, I think that there is value in setting out the helpful expression of them by Charles, J.A. in R. v. Clarke[1]:

"1. An appeal by the Crown should be brought only in 'the rare and exceptional case' ... to establish some point of principle. The reason is that such appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' ... .

2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle ... ; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons ... ;

(c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience ... ; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing ... .

3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact ... .

Allpass is also authority for the following propositions:

4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance." (Citations omitted)

10 In a report provided to the Court the sentencing judge, stated that, in common with the Director, she also had concluded that the sentence she handed down was inadequate, although she still considered that one involving immediate incarceration had not been required. Her Honour has, however, given no indication as to whether, in her view, the inadequacy arises from the length of the individual sentences, the absence of any order for cumulation, the total effective sentence imposed by her or the period of suspension which she fixed. Nor has she provided any further assistance than that contained in the transcript with regard to her reasoning at the time the sentence was imposed or as to the basis upon which she arrived at her later view.

11 Clearly the Court will have regard to the report of a sentencing judge. However, as was pointed out by the Court, in a different context, in R. v. Marziale:

"The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness - for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory."[2]

A similar observation may, of course, be made with respect to matters affecting the adequacy or inadequacy of a sentence in a particular case.

12 By reason of the different role which this Court performs in the determination of a Director's appeal and the absence of the information to which I have referred, I regard the judge's report in this case as unfortunately providing no practical assistance.

13 Mr McArdle, who appeared on behalf of the Director, submitted that the offence of being a prohibited person in possession of a firearm and the offence of possession of explosives are both very serious. That proposition can hardly be gainsaid. Here, the respondent was found to be in possession of a large number of weapons capable of use in a wide range of criminal activities. The danger posed by their presence in the community was patent, he continued. This too I would endorse. The position was, the argument proceeded, significantly aggravated when regard is had to the respondent's criminal history that extended over thirty years and included convictions for armed robbery and murder. I agree.

14 As I have indicated, these propositions possess considerable force and, simply viewed against that background, the sentence imposed upon the respondent could reasonably be regarded as derisory.

15 However, the situation was not that straightforward. As I have mentioned, the respondent was taken into custody in March 1999 and charged with a large number of offences. The Court has now been told that they did include offences of the kind involved in the presentment currently under consideration. The presentment which was filed at that time contained approximately 130 counts. In due course, it was severed by Judge Neesham into three parts. At the trial of the first group of offences, the respondent and a co-accused named Henschel were found guilty of the handling of stolen property. At the trial of the second group both were acquitted. Subsequently an appeal arising out of the first trial was allowed and a re-trial ordered.

16 By the time of the listing of the re-trial, both men had been in custody for approximately two-and-a-half years. The co-offender pleaded guilty to all of his outstanding offences, which included the handling of the stolen firearms. The prosecution at that stage adopted the position that, in view of the length of the period of detention to which both men had been subject, a sentence that equated to the time already served would be regarded as appropriate and it was contemplated that both would enter pleas of guilty on that basis. This is indeed what occurred in the case of the co-offender. However, on the day of the hearing, the respondent indicated that he would not plead guilty to the firearms charges, as then formulated, and the proceedings against him were adjourned for trial.

17 Shortly prior to the trial, which was listed for hearing in February 2004, a further presentment was filed containing the counts to which he finally pleaded guilty.

18 It is evident that the sentencing judge was troubled by the prosecution's submission at the time of the plea that in those circumstances, and contrary to the position earlier adopted, a sentence of imprisonment should be imposed some part of which, at least, the respondent would be required to serve. The matter was put as follows:

"HER HONOUR: He ends up worse in any event. Even if I give him a suspended sentence he ends up worse. I mean, essentially it looks as if what the Crown is saying is, 'Look, he didn't enter a plea at the time and he shouldn't get an advantage' - there should be some consequence to having, I suppose, inconvenienced everybody by not proceeding with his plea at the time.

PROSECUTOR: I hear what your Honour says.

...

HER HONOUR: He's already disadvantaged himself. If I wholly suspend the sentence, he's going to get a sentence, he's going to be hanging on a knife's edge. There's plenty of authority to say a suspended sentence is not a mere bagatelle, it's a very real sentence and for someone - - -

PROSECUTOR: I accept that, your Honour.

HER HONOUR: Yes. He's going to end up worse off anyway, isn't he?

PROSECUTOR: He is.

HER HONOUR: It's a bit rough saying he's going to end up worse up to the point of going back to gaol, particularly when it's accepted that this is more than the ordinary case of hardship to family. He's got an old mother with dementia who's going to end up in some institution which will apparently have to be arranged by his paraplegic brother, as far as I can see. That's pretty rough, isn't it?

PROSECUTOR: Yes, your Honour.

HER HONOUR: Yes, it is."

19 As I understand the submission, it is now contended that the concession made at the earlier hearing that a sentence, equating to the period of time already served would be appropriate, was made, in part, in a mistaken belief as to the amount of pre-sentence detention actually available. That may well have been the case and may well explain the reason for a different attitude being adopted by the prosecution at the time that the matter arose before her Honour, but there is nothing before this Court to support this claim, and certainly, as the extract above makes apparent, no explanation of that kind was ever proffered to the sentencing judge.

20 It appears to me to be perfectly clear that the judge at that time formed the view that, whatever sentence she imposed, the respondent would incur, and possibly unfairly, a greater penalty than that to which he would have been subject had he been dealt with at the time that sentence was imposed upon his co-offender. She was presumably comforted, with respect to the adoption of this position, by the apparent concession of the prosecutor that that was the case. I have little doubt that it was principally the presence of this consideration that led her to impose a sentence that otherwise would have been so far outside the range of those available in the proper exercise of sentencing discretion that it could sensibly be described, as I have indicated, as derisory.

21 The prosecution in this Court has further varied its position to the extent that it has now accepted that, in view of the lapse of time, it would not now be appropriate for a term of imprisonment requiring immediate incarceration to be ordered.

22 Acknowledging the seriousness of the respondent's conduct and the extreme leniency of the sentence imposed, I would none the less dismiss this appeal for the five reasons advanced on his behalf by his counsel:

1 (1) The extraordinary length of time that has now elapsed since the arrest of the respondent for these offences, albeit a significant part of that delay is attributable to his own decisions, and notwithstanding that some of the alternative charges on the original presentment were matters to which he ultimately pleaded.

(2) It is highly likely that had the respondent been dealt with in November 2004 he would not have been required to serve any further period of incarceration for these offences in common with his co-offender.

(3) Although the Director does not now call for a sentence involving immediate incarceration, it must be recognised that what is being sought is a further sentence of imprisonment for a man released from custody some time ago and six years after the commission of his offences. This is, in the circumstances, a powerful discretionary consideration.

(4) The changes in the penalty regime for offences under the Firearms Act render this an inappropriate case in which to address the sentencing principles for such offences.

(5) Finally, there are personal considerations to which the sentencing judge referred relating to the respondent's personal circumstances, including the responsibility he has assumed for his mother and brother, which militate against the intervention of this Court.

23 As Mr McArdle put to us this morning, a number of the counts in the presentment related to very serious weapons which could only have a sinister use. I have no doubt that in ordinary circumstances a sentence of three months' imprisonment would be manifestly inadequate for an offence of the kind alleged and, indeed, could be described, as Vincent, J.A. has put it, as derisory.

24 I agree, however, that the appeal by the Director of Public Prosecutions should be dismissed, for the reasons given by Vincent, J.A., in light of the extraordinary circumstances and history of these proceedings.

25 The sentence can, of course, be no guide at all for any future purpose as to what might be an appropriate sentence for offences of this nature.

26 Only the quite peculiar circumstances of this matter, which Vincent, J.A. has catalogued, can explain what would otherwise be perceived to be a sentence of extraordinary leniency, but those circumstances critically cannot be ignored. The disposition of every matter turns upon its own circumstances.

27 I agree that the Director's appeal should be dismissed.

28 The Court's order is that the Director's appeal is dismissed.

An indemnity certificate is granted to the respondent.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[2] R. v. Marziale, Unreported, 18 April 1996 per Winneke, P., Brooking, J.A. and Southwell, A.J.A.