Haddara v The Queen [2018] VSCA 303

1 The applicant pleaded guilty in the County Court to three charges of theft, one charge of being a prohibited person in possession of an imitation firearm, one charge of possessing a drug of dependence, one charge of committing an indictable offence while on bail and one charge of contravening a community correction order ('CCO'). The CCO had been imposed on the applicant in relation to charges of burglary and theft. Because of the contravention of the CCO, the applicant fell to be re-sentenced on the underlying burglary and theft charges.[1]

2 On 11 September 2018, following a plea hearing conducted over three days in July and August 2018, the applicant was sentenced as follows:

[s 74 of the Crimes Act 1958]

10 years [s 74 Crimes Act 1958]

[s 74 of the Crimes Act 1958]

10 years [s 74 Crimes Act 1958]

[s 5AB(2) Control of Weapons Act 1990]

10 years [s 5AB(2) Control of Weapons Act 1990]

[s 73(1) Drugs, Poisons and Controlled Substances Act 1981]

1 year [s 73(1) Drugs, Poisons and Controlled Substances Act 1981]

[s 74 of the Crimes Act 1958]

10 years [s 74 of the Crimes Act 1958]

[s 30B Bail Act 1977]

3 months [s 30B Bail Act 1977]

[s 83AD(1) Sentencing Act 1991]

3 months [s 83AD(1) Sentencing Act 1991]

[s 76(1) Crimes Act 1958]

10 years [s 76(3) Crimes Act 1958]

[s 74 of the Crimes Act 1958]

10 years [s 74 Crimes Act 1958]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

3 At the time he was sentenced, the applicant was undergoing a sentence of seven months' imprisonment imposed in the Magistrates' Court in respect of unrelated matters. The judge ordered that two months of the sentence that she imposed on 11 September 2018 be served concurrently with the sentence imposed in the Magistrates' Court on 16 August. The net result was that for the offending for which the applicant was sentenced in the Magistrates' Court and by the judge, the applicant was required to serve approximately 11 months in custody before being eligible for parole, and all sentences would expire after approximately 18 months.

4 The applicant now seeks leave to appeal against his sentence. His proposed ground of appeal is as follows:

The total effective sentence (constituted by the sentence imposed on charge 3 and the orders for cumulation) and the non-parole period fixed are manifestly excessive.

Particulars

The sentences imposed are manifestly too long having regard to:

(i) the applicant's youth;

(ii) delay;

(iii) totality;

(iv) the support available to the applicant;

(v) the time he had otherwise spent in custody;

(vi) his guilty pleas;

(vii) the noticeable change in his attitude; and

(viii) his engagement with the Youth Community and Law Program.

5 Following the filing of written cases, the applicant requested that his application for leave to appeal and, if leave is granted, his appeal be dealt with on the papers. The respondent consented to that course, and the matter is thus before us.

6 11 September 2018 was not the first occasion on which the judge was required to sentence the applicant. On 21 December 2017, when the applicant was then 22 years of age, the judge sentenced him on appeal from orders that had been made in the Magistrates' Court. In October of that year, the applicant had been sentenced in the Magistrates' Court on a number of offences, including burglary, theft, possession of methylamphetamine and cannabis, driving while his licence was suspended, driving an unregistered vehicle and committing an indictable offence while on bail ('the 2017 offences').

7 The 2017 offences breached a CCO that had been imposed on an earlier occasion in the Magistrates' Court in respect of the burglary and theft charges, for which the judge ultimately resentenced the applicant on 11 September 2018.

8 On the appeal from the Magistrates' Court, the judge sentenced the applicant to eight months' imprisonment in respect of the 2017 offences. In respect of the breach of the Magistrates' Court CCO, the judge varied that order by extending it by one year so that it would resume when the applicant had completed his eight month sentence, and would then last a further year. That CCO had conditions that required the applicant to perform 100 hours of unpaid community work, undergo supervision and drug treatment (40 hours of which treatment could count towards the unpaid community work).

9 The applicant completed the eight months' term of imprisonment in February 2018 and resumed his CCO. He contravened it, however, by failing to comply with its terms and committing further offences in May 2018.

10 The offending constituting charges 1 to 6 all occurred in early October 2016. Those offences did not breach the CCO because they were committed before the CCO was first imposed. As the plea of guilty to charge 6 suggests, the offences constituting charges 1-5 were committed while the applicant was on bail in respect of another charge.

11 Charges 1, 2 and 5 relate to the theft of a BMW, a Mazda van and a motorcycle, each of which the applicant was either caught driving or found in possession of in early October 2016.

12 Charge 4 related to the finding of a small amount of methylamphetamine in a plastic bag in the BMW that was the subject of charge 1. At the time of possession of the methylamphetamine, the applicant was on bail that had been granted at the Werribee Magistrates' Court in March 2016. It was the possession of the methylamphetamine while the applicant was on bail that constituted charge 6.

13 On 4 October 2016, while driving the BMW, the applicant drove alongside another vehicle and began beeping his horn. The applicant showed the driver of that vehicle what appeared to be a handgun. Later, he drove behind another car and pointed the handgun at that vehicle. Later again, the applicant stopped in the middle of an intersection and waved the handgun out of the window of the BMW. A witness described the handgun as 'something a police officer would have'. On 4 October, the applicant was a prohibited person. These circumstances constituted charge 3.

14 The judge commenced her reasons for sentence with a description of background matters and the circumstances of the applicant's offending.[2] Following this description, the judge said that she had given the applicant the benefit of a 'relatively early plea of guilty because it seems that, although [the applicant] made a "no comment" interview to police, [he] indicated a willingness to plead guilty ... from a relatively early stage'.[3] The judge then observed that there had been delay due to a more serious charge of armed robbery being laid, withdrawn, and then reinstated, before finally not proceeding.[4]

15 Next, the judge then turned to the applicant's personal circumstances, noting that he was 23 years of age at the time of sentencing and 21 when he committed the offences giving rise to charges 1 to 6.[5]

16 The judge then set out in some detail the applicant's prior criminal history, which included being sentenced in October 2014 in the Children's Court for armed robbery and false imprisonment.[6] The judge then said that the applicant's 'criminal history, however, has grown very considerably since then'.[7] The judge then detailed the 'growth' in his history. In doing so, the judge also referred to the fact that the applicant had been sentenced in August 2018 to seven months' imprisonment - a sentence he was still undergoing.[8]

17 The judge then said that the periods of time that the applicant had spent in custody, particularly at his age, called for some moderation due to the principle of totality.[9] The judge went on to say in respect of specific deterrence, however, that earlier dispositions had 'not proved to be [a] salutary enough lesson for [the applicant] to resist engaging in further offending'.[10] The judge said that, nevertheless, she had taken totality into account in determining both the individual sentences, the total effective sentence and what degree of concurrency to allow on the seven months' sentence imposed in the Magistrates' Court.[11]

18 Next, the judge referred to the fact that the applicant's parents remained supportive of him and that there was a supportive reference from his uncle showing that the applicant's attitude, while working for his uncle, had changed for the better after the applicant's release from prison in February.[12] Additionally, the judge referred to a report given to the Magistrates' Court in July which confirmed that the applicant was then engaging to a satisfactory standard with the Youth, Community and Law Program.[13]

19 The judge then referred to delay again, saying that she would deal with that by 'affording some concurrency' with the sentence the applicant was then serving.[14] The judge noted, however, that the applicant had 'used the delay to embark constructively on rehabilitation'.[15]

You are still aged 23. You have supportive parents and work available for you as a panel beater on your release from prison. You still need to show that you can commit to long-term abstention from drug abuse. While your prospects for rehabilitation are by no means hopeless, and at your age should still be a significant factor in your sentencing, in my view, your conduct over the last 18 or more months does not reflect strong prospects of rehabilitation. I put your prospects of rehabilitation as guarded, but at age 23 still to be encouraged.[16]

21 The applicant asserts that his total effective sentence and non-parole period are manifestly excessive. In his written case, the applicant encapsulates eight considerations, the combined effect of which is said to disclose that the sentences imposed upon him are wholly outside the available sentencing range. The eight considerations relied upon by the applicant are:

(1) The applicant was 20 years old in October 2015 when he committed the burglary and theft for which he fell to be re-sentenced after the contravention of his CCO. He was 21 years old at the time of the offending constituting charges 1 to 6.

(2) The delay identified by the judge in her reasons for sentence.[17]

(3) The 'compressing effect of totality'.

(4) The family and community support available to the applicant referred to by the judge in her reasons for sentence.[18]

(5) The length of time that the applicant had served in custody since the offending in October 2016 was committed.

(6) The applicant's guilty pleas, and his indication of willingness to plead guilty at a relatively early stage.

(7) The applicant's attitude having changed noticeably since he was released from prison in February 2018, as referred to by the judge in her reasons for sentence.[19]

(8) The fact that the applicant had, before he was sentenced in August 2018, engaged with the Youth, Community and Law Program, a specialised intensive support program that focusses on rehabilitating youthful offenders.

22 The applicant's complaints of manifest excess are devoid of merit. The judge took into account all of the mitigating factors relied upon by the applicant and ultimately arrived at a sentence which was, if anything, lenient.

23 The sentence on charge 3 was particularly lenient, no doubt affected by the fact that the judge thought the maximum term of imprisonment for that offence was two years.[20] It was in fact 10 years, because the applicant was a prohibited person and he was thus liable to the penalty prescribed by s 5AB(2) of the Control of Weapons Act. The more limited maximum penalty of two years related to the offence under s 5AB(1) involving a non-prohibited person possessing an imitation firearm without a relevant exemption or approval. In any event, no complaint is now made by the respondent in relation to the judge's sentence.

24 Put shortly, when one considers the circumstances of the applicant's offending, his prior criminal history and the matters relied upon in mitigation, it is simply not open to contend that the sentences and orders imposed by the judge were wholly outside the permissible range (that being the test for manifest excess).

25 It not being reasonably arguable that any of the sentences, or the total effective sentence or the non-parole period was outside the permissible range, the application for leave to appeal against sentence must be refused.

[1] See s 83AS(1)(c) of the Sentencing Act 1991, and Luu v The Queen [2018] VSCA 92 [20]-[23].

[2] DPP v Haddara [2018] VCC 1597 [1]-[22] ('Reasons').