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[2014] VSCA 103
General information, not legal advice.
Court of Appeal (Vic)
2014-05-30
Santamaria JA, Weinberg JA
Original judgment source is linked above.
DPP v Jomaa (Unreported, County Court of Victoria, Judge Parsons, 6 August 2013)
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant pleaded guilty to six counts of burglary and ten counts of theft and a summary offence of driving in a dangerous manner - Applicant and co-offender committed offences as part of multi-faceted course of criminal conduct - Sentenced to six years and nine months' imprisonment with a non-parole period of five years - Manifest excess - Whether sentencing judge gave insufficient weight to mitigating factors - Sentences clearly within range of sentences that were reasonably open - Cumulation - No error in treating dangerous driving as a distinct offence - Parity - Lesser non-parole period of co-offender - Co-offender committed offences while on parole for Commonwealth offences - Revocation of parole period - Principle of totality applied by judge to co-offender - Co-offender must serve longer period before eligibility for parole - No justifiable sense of grievance - Application for leave to appeal dismissed.
2 The applicant, Khaled Jomaa, pleaded guilty, in the County Court at Melbourne, to six counts of burglary, ten counts of theft, and a single summary offence of driving in a dangerous manner. On 6 August 2013, he was sentenced as follows:[1]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 76(1) Crimes Act 1958]
[s 76(3) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 74(1) Crimes Act 1958]
[s 64(1) Road Safety Act 1986]
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
3 6AAA Statement: The sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of this offence after a trial would have been 8 years' imprisonment with a non-parole period of 6 years and 6 months.
• Licence Disqualification of 2 years (on Summary Offence)
• Disposal Order pursuant to s 77(1) of the Confiscation Act 1997
• Forensic Sample Retention Order pursuant to s 464ZFB(1) Crimes Act 1958
3 On 27 November 2013, Redlich JA refused the applicant leave to appeal in respect of his sentences on all charges. The applicant thereafter renewed his application for leave to appeal in respect of each of the sentences.[2]
4 Between 28 June 2011 and 13 August 2011, the applicant, in company with Mohummed Atiyeh, his co-accused, committed a similar series of burglaries and thefts on a number of commercial properties in inner suburban Melbourne. Goods stolen from commercial properties included luxury cars, laptop computers and mobile phones.
5 On 28 June 2011, the applicant gained forced entry to the business premises of NES Electronic Hire at 41 Brady Street, South Melbourne. Thirty-four laptop computers and computer accessories valued at approximately $50,000 were stolen, as well as an HDC mobile phone valued at approximately $500. These events gave rise to charge 1 (burglary) and charge 2 (theft).
6 On 19 July 2011, the applicant gained forced entry into the Scotch and Soda designer men's clothing store at 74 Collins Street, Melbourne. A large amount of stock valued at slightly in excess of $11,000 was taken, although apparently approximately $1000 worth of those items has been recovered. These events gave rise to charge 3 (burglary) and charge 4 (theft).
7 On the night of 28 or 29 July 2011, the applicant stole two registration number plates from a Landrover parked in South Melbourne. These events gave rise to charge 5 (theft).
8 On 31 July 2011, the applicant gained forced entry to a Harvey Norman store at Moorabbin. Some 109 mobile phones and five computer tablets were stolen from the store. The total value of the stolen goods was approximately $41,000. None of the stolen property has been recovered. These events gave rise to charge 6 (burglary) and charge 7 (theft).
9 Between 19 June 2011 and 3 August 2011, the applicant stole a set of number plates from a Harley Davidson motorcycle in East Melbourne. These events gave rise to charge 8 (theft).
10 On 3 August 2011, the applicant gained forced entry into the Next Byte computer store at Denali, Melbourne University Union Building, Parkville. Thirty-seven Mac Book computers, nine iPads, nine time capsules, three Bose sound docks and miscellaneous accessories with a total value of $64,000 were stolen and have not been recovered. These events gave rise to charge 9 (burglary) and charge 10 (theft).
11 On 3 and 4 August 2011, the applicant stole two registration plates from a Landrover in East Melbourne. These have not been recovered. These events gave rise to charge 11 (theft).
12 On 12 August 2011, the applicant removed and stole the registration plates of a dark blue Commodore which was parked in Port Melbourne. These events gave rise to charge 12 (theft).
13 On 13 August 2011, the applicant broke into a garage in an underground car park of a building at 1 Queens Road, Melbourne and forced open some cabinets. There were a large number of items missing from the garage. They included Australian Defence Force supplies and clothing, two motorbike helmets, and several bottles of wine. The estimated value of the stolen property was slightly in excess of $3,500. Most of this property was recovered. These events gave rise to charge 13 (burglary) and charge 14 (theft).
14 On 13 August 2011, the applicant forced entry into the business of Metro Auto House which is a vehicle carwash located in the basement of 1 Queens Road, Melbourne. The applicant removed keys to the cars which were parked in those premises and stole an Audi sedan valued at $12,000, a Rangerover station wagon valued at $90,000, a Mercedes station wagon valued at $64,000, an Audi coupe valued at $150,000 and a Volvo wagon valued at $36,000. These events gave rise to charge 15 (burglary) and charge 16 (theft).
15 On 13 August 2011, a number of police officers attended at the underground car park of the Sebel Hotel on the corner of Lorne Street and Queens Road, Melbourne. The applicant was in the company of his co-accused. As the police approached them in order to arrest them they jumped into one of the stolen vehicles. The applicant was the driver. He drove through the car park at high speed, up the exit ramp and through the closed boom gate. The police called to him to stop. He did not stop or slow down with the result that the police had to take evasive action to avoid being hit. Having collided with a police car, which had been placed in the path of the exit ramp, the applicant drove at high speed along Queens Road towards Albert Park Lake. Eventually, the stolen car was abandoned. These events gave rise to the summary offence which was the subject of charge 1 (dangerous driving).
16 The total value of the property stolen by the applicant was estimated at slightly in excess of $510,000. Approximately, $125,000 or slightly in excess of that amount was not recovered.
17 Following their arrest on 13 August 2011, the police took the applicant and his co-accused to the police station where they were interviewed. The applicant said that he had been smoking methylamphetamine and had not slept for a few days. He had been staying alone at the Seasons Heritage Hotel, where the police had arrested him, for several days to a week. He said that everything in the room at the hotel belonged to him and that no one else had access to the room. At first, he agreed that he had told police that he had a $1000 a day drug habit. Later, he denied having said that, after being questioned about how he could afford to support such a lifestyle.
18 The plea commenced on 25 June 2013. At the hearing, the sentencing judge requested further submissions from the Crown as to their proffered sentencing range, and as to the operation of specific legislative provisions that applied to the co-accused. The matter was adjourned for a further plea hearing.
19 On 30 July 2013, the plea hearing was resumed and further submissions were made.
20 The defence relied upon (a) a progress report on parole dated 14 December 2011, (b) a psychological report of Mr Warren Simmons dated 2 May 2013, and (c) a letter from Uniting Care ReGen (formerly Uniting Care Moreland Hall) dated 16 May 2013.
21 The main details of the applicant's life were set out in the psychological report of Mr Simmons. The applicant had just turned 36 at the time of offending. He had been born in Lebanon and had come to Australia at a very early age. He had been at high school until year 10. But for a few minor jobs he had been essentially unemployed. The applicant had told Mr Simmons that his father had been a strict disciplinarian and that there was violence in the household. He commenced using cannabis when he was a teenager and, by the age of 17 or 18, was using ecstasy and, soon after, amphetamines. Mr Simmons had access to the applicant's prior criminal history which was contained in a Department of Justice, Corrections Victoria report entitled 'Progress Report for Offender Subject to Parole' dated 14 December 2011. The progress report indicates, in 2007, the applicant was sentenced to prison for handling and receiving stolen goods. Later in 2007, he was convicted of driving without authorisation and theft of a motor vehicle and possession of house breaking equipment. In 2008, he was convicted of burglary and theft. In 2009, he was convicted of further offences of dishonesty. He was released on parole on 10 July 2010. His parole expired on 19 June 2011, about 10 days before the commission of the first of the offences to which he pleaded guilty. Corrections Victoria reported on his response to parole, his assessment and treatment for drug and alcohol use and his unpaid community work.
22 Reference was made to his plea of guilty which took place before any committal hearing, as well as the significant amount of time which the applicant had spent on remand.
23 In written submissions, the prosecution submitted that the appropriate sentencing range was a head sentence of seven to nine years and a non-parole period of five to seven years. That submission was said to take into account (a) that the maximum penalty for each of burglary and theft was 10 years, (b) that low to moderate damage had occurred in the forcible entry into the premises and the high value of property stolen, (c) the age of the applicant and the fact that he had served periods of incarceration, (d) the applicant had committed the first of the offences within days of the expiration of the parole period of his last sentence of imprisonment, (e) current sentencing practices as informed by sentencing statistics and sentences imposed by courts for similar offending, (f) relevant sentencing principles, and (g) parity between co-offenders. Finally, the prosecution disputed that the applicant's plea of guilty was an 'early plea'. The applicant had been arrested on 13 August 2011. There had been discussions between his solicitors and the Office of Public Prosecution between January 2012 and March 2013. It was only on 21 April 2013 that the applicant offered to plead to the 17 charges of which he was convicted.
24 In oral submissions, the prosecution provided details of the applicant's previous court appearances (33 between 1992 and 2009), and his two prior periods in custody. The prosecution provided an estimate of the value of the stolen property and an estimate of the amount which was recovered. It pointed to s 89(4) of the Sentencing Act 1991 (Vic) which requires a court, on the conviction of a defendant of charges involving theft of a motor vehicle, to cancel the driver licence of the accused and to disqualify that person from obtaining a further one for such time as the court thinks fit. Finally, the prosecution pointed out that the applicant had been granted bail on 31 August 2012 but was unable to raise the surety. As a result, he had remained in custody since his arrest.
25 At the plea hearing on 25 June 2013, the sentencing judge adjourned the matter so that the prosecution could provide further information with respect to current sentencing statistics for the offences for which the applicant and his co-accused had pleaded guilty. Subsequently, the prosecution prepared a document entitled 'Prosecution submissions on sentence' dated 26 July 2013. Attached to that document were two tables. Table A was entitled 'Comparison of sentencing range with sentencing statistics'; Table B was entitled 'Comparative sentencing cases'. The information contained in Table A appears to have been derived from the 'Sentencing Snapshot' for burglary (June 2012 No. 123) and theft (March 2013 No. 137) prepared by the Sentencing Advisory Council.
26 The sentencing judge took the following matters regarding the applicant into account:
(a) He was entitled to a discount for his plea of guilty which in light of the extensive negotiations, was indicated at an appropriate time and at the earliest opportunity.
(c) He committed the offences to fund his drug habit at the time.
(d) He suffered from an anxiety disorder and there was evidence of symptoms consistent with post traumatic disorder.
(e) While in custody he had sought to maximize his chances of rehabilitation.
(f) The delay in the matter finalizing had no doubt caused the applicant anxiety that weighed heavily on him.
27 The sentencing judge also referred to the applicant's extensive history for dishonesty matters, the proximity between the offending and his completed parole; and considered that 'one must be cautious and guarded' in relation to the applicant's prospects of rehabilitation.[3]
28 The sentencing judge also referred to the offending as involving well-planned crimes and substantial sums of money and goods. He referred to general deterrence and specific deterrence as relevant sentencing considerations.
29 His Honour nominated charge 1 as the base sentence. He then uniformly imposed a nine month cumulative sentence on each count of burglary and a two month cumulative sentence on six of the 10 counts of theft, and a wholly cumulative six month sentence on the count of dangerous driving.
30 The applicant originally sought leave to appeal against sentence on two grounds.
Particulars
(a) The sentence imposed is excessive in that the sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant's case, including the following:-
(i) The applicant's plea of guilty.
(ii) The applicant's significant period on remand.
(iii) The applicant's recent attempts at rehabilitation.
(iv) The applicant's personal circumstances.
Particulars
(a) The learned sentencing judge imposed 9 month cumulative sentences on counts [3], [6], [9], [13], [15] and 2 month cumulative sentences on counts [2], [4], [7], [10], [14] and [16] and a wholly cumulative 6 month sentence on the count of dangerous driving.
(b) In imposing the orders for cumulation the learned sentencing judge failed to take into account relevant considerations and/or failed to consider the totality of the applicant's criminal offending.
31 On 5 May 2014, the applicant gave notice that he proposed to apply to add a new ground of appeal, one based on the principle of parity. The ground is as follows:
(a) The sentences imposed failed to give sufficient weight or discount, to what was accepted by the sentencing judge to be an early plea of guilty.
(b) The sentences imposed failed to give sufficient weight or discount to the delay involved in the finalization of the matters and the significant period of time that the applicant had spent in custody.
(c) The sentencing judge erred in considering the parole report of 'limited utility' given the timing of it and thus, it is contended, failed to give the relevant matters arising from the report any weight.
(d) Given the individual sentences imposed and the total effective sentence and non-parole period set, the sentencing judge had failed to give adequate weight to the details of the report of Mr Simmons. It was said that of particular relevance were the June 2012 sentencing snapshots for burglary that indicated that the median effective imprisonment length was two years and six months, while the median principal imprisonment length was one year and three months. It was also said that the arguments advanced by the Crown on sentence invited the Court to apply 'a multiple or triple total effective sentence' than what was apparent from a statistical analysis.
(e) The sentencing judge erred in indicating that he would have imposed the same sentence on the co-accused, Mohummed Atiyeh, notwithstanding his criminality and particular circumstances were different and more serious than that of the applicant.
(i) there was no differentiation between offences that occurred on the same day, such as counts 13 to 16; and
(ii) there was also no discernible consideration or differentiation of counts where all property was returned (counts 13 and 14) or between counts involving greater amounts of property. For example, counts 3 and 4 involved a burglary and theft in the value of $11,034 and counts 9 and 10 involved a burglary and theft in the value of $64,000. Although a different sentence was imposed for the theft counts (4 and 10) the same degree cumulation was ordered.
(b) In relation to the conviction for driving in a manner that was dangerous, this was a summary offence uplifted to the County Court. The sentencing judge imposed a six month sentence and ordered that the whole sentence be served cumulatively, notwithstanding the offence occurred as part of a course of conduct and occurred on the same day as counts 13 to 16.
(c) It is submitted that the total effective sentence which the sentencing judge imposed was simply the mathematical conclusion arrived at by imposing sentences and making orders for cumulation without distinction between counts, whether as to their individual seriousness or their relationship to each other.
(d) The orders for cumulation suggest that the sentencing judge failed to look at the totality of the applicant's criminal behaviour as required.
34 The applicant also sought the setting aside or variation of the order imposed by the Court in relation to the applicant's license: s 325 Criminal Procedures Act 2009 (Vic). At the plea hearing, it was submitted that any licence disqualification be kept to a minimum (of six months) given that the applicant had already served a period of close to two years on remand.
Like the ground of 'manifest excess' in prisoner appeals against sentence, manifest inadequacy falls into the last category of error identified in House,[6] as follows:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[7]
In its unanimous decision in Carroll v The Queen,[8] the High Court (Gummow, Hayne, Crennan, Kieffel and Bell JJ) set out this passage from House[9] and said:
The director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.[10]
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[11] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.[12] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[13]
36 It is clear that the judge took into account the early plea. In fact, he treated it as having been made 'at the earliest practical opportunity' despite submissions of the Crown to the contrary.[14]
37 Having taken into account the applicant's extensive criminal record and the proximity of his offending to the completion of his parole period, the sentencing judge was fully justified, in being satisfied that 'on balance ... the chance of [the applicant's] rehabilitation [prospects] are problematic'.[15]
38 In his written submission, the applicant said 'of relevance are the June 2012 sentencing snapshots for burglary that indicate that the median effective imprisonment length was two years and six months, while the median principal imprisonment length was one year and three months.' However, on appeal, the prosecution submitted that the individual sentences imposed by the sentencing judge with respect to burglary 'were within the average albeit at the lower end'. An identical submission was made with respect to the sentences for theft. On several occasions, the Court has pointed to the fact that 'very little guidance [can] be got from recourse to what otherwise might be gleaned from reference to sentencing statistics'.[16]
39 It seems that the total effective sentences for both type of offences were within the range of 'total effective length of imprisonment', albeit at the lower end of that range.
40 The sentencing also took into account the applicant's extensive criminal history and the fact that the present offences were committed soon after the expiry of his most recent period of parole.
41 In my opinion, it cannot be said of the sentences that they were clearly outside the range of sentences that were reasonably open. They were well within the range bearing in mind the applicant's own circumstances and the circumstances of the particular offences.
42 The applicant points out that there were apparent similarities or differences in the offences for which he has pleaded guilty or in the sentences that have been imposed but that the amount of cumulation does not appear to respond directly to those apparent similarities or differences and the reasons of the sentencing judge do not expressly advert to those similarities and differences. So:
(a) there was no discernible differentiation between offences that occurred on the same day. The reference is to charges 13 to 16, all of which occurred on 13 August 2011. Although the judge imposed different sentences for the separate burglary and theft charges, he imposed the same amount of cumulation in respect of each sentence: nine months for the burglary charges and two months for the theft charges.
(b) there was no discernible differentiation between offences in which all the property was recovered and those where some or all of it was not.
(c) there was no discernible differentiation between offences by reference to the value of the property stolen. Counts 3 and 4 involved burglary and the theft of property valued at $11,034 (which attracted sentences of 18 months and nine months respectively) and counts 9 and 10 involved burglary and the theft of property valued at $64,000 (which attracted sentences of 18 months and 12 months respectively). Yet, in both cases, the amount of cumulation was identical: nine months for burglary and two months for theft.
(d) different sentences were imposed for separate thefts (in the case of count 4, nine months and, in the case of count 10, 12 months), yet, in both cases, the same amount of cumulation (two months) was ordered.
(e) in the case of the summary offence that was uplifted to the County Court, the whole of the sentence (six months) was to be served cumulatively, notwithstanding that 'the offence occurred as part of a course of conduct and occurred on the same day as counts [13] to [16]', namely 13 August 2011.
43 The applicant referred to Eagles v The Queen.[17] In that case, an application of cumulation was overturned. The Court said:
In the circumstances, it is hard to reject the appellant's contention that the sentencing judge sentenced by way of 'a mechanistic sentencing exercise'. We infer that his Honour did not give consideration to the differences in the culpability of the appellant for each event or series of events, either in arriving at an individual sentence, or making orders for cumulation. The total effective sentence which he imposed was simply the mathematical conclusion arrived at by imposing sentences and making orders for cumulation without distinction between counts, whether as to their individual seriousness or their relationship to each other.[18]
44 On several occasions, when it has discussed the relation of cumulation to 'totality', this Court has discouraged the making of the fine distinctions and close parsing of the sentencing judge's reasons that appear to inform the submissions made on behalf of the applicant in this case.
45 Consistent with the common law presumption of concurrency, s 16(1) of the Sentencing Act 1991 (Vic) provides that, subject to subsection (1A),[19] 'every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment' etc. Thus, the statute preserves the power of the court to order that terms of imprisonment imposed in respect of several offences should be served wholly or partly 'cumulatively' with the terms imposed for other offences.
46 However, cumulation must be considered also by reference to totality. In Postiglione v The Queen,[20] McHugh J said:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.[21]
47 In Mill v The Queen,[22] the High Court said the application of the principle of totality justifies a degree of practicality:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[23]
48 In Director of Public Prosecutions v Grabovac,[24] Ormiston JA said:
In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practical when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.[25]
49 In Azzopardi v The Queen,[26] Redlich JA (with Coghlan and Macaulay AJJA agreeing) said:
Callaway JA said in R v Aleksov, that just like in the case of manifest excess, whether the total effective sentence offends the principle of totality is often a matter of impression. The factors which combine to inform the instinctive synthesis are those which also determine whether an individual sentence is manifestly excessive, namely the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender. Hence it is often said that the question of whether a sentence is manifestly excessive does not admit of much elaboration. While those factors enable the identification of a relevant range of sentences available for that offence, more subtle considerations are at work in determining the aggregate sentence which sufficiently reflects the offender's total criminality. Whatever comfort a sentencing judge may derive from the fact that an intermediate appellate court can as a 'matter of impression' identify when a sentence infringes the principle of totality, the content of the principle remains unstated.[27]
50 And, in R v Piacentino; R v Ahmad,[28] the Court said:
The court has resisted challenges to sentences mounted on the basis of 'structural' arguments about the manner in which the sentences were formulated. A 'broad brush' approach is often appropriate when a judge is sentencing an offender for multiple offences.[29]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterised, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.[33]
52 In Bogdanovich v The Queen,[34] Ashley and Weinberg JJA decided that the sentence imposed by the sentencing judge was 'manifestly excessive'. In resentencing, they directed themselves as follows:
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a 'just and appropriate measure of the total criminality involved'. The totality principle is said to 'defy precision either of description or implementation'. Sometimes it is described as a requirement of 'just deserts', and whether the total effective sentence offends that principle is often a 'matter of impression'. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as 'parts of a multi-faceted course of criminal conduct', it will often be appropriate to order substantial concurrency.
Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence. In R v MK, Chernov and Nettle JJA said:
Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.
The problem is exacerbated, however, when the sentencing judge must have regard not merely to totality in relation to the offences for which the offender is being sentenced, but also other periods of incarceration in respect of earlier and unrelated offending.[35]
53 The present case was one in which the several offences might be described 'parts of a multi-faceted course of criminal conduct'. By the way he framed his orders for cumulation, the sentencing judge ordered a substantial degree of concurrency in respect of multiple thefts and burglaries committed between late June and mid-August 2011. In making his necessary evaluation of 'overall criminality', the judge was entitled to apply a 'broad brush'. The distinctions drawn by the applicant may be thought of as anomalies only if one predicates of the task set for the sentencing judge the 'structural approach' which has been held to be quite inappropriate.
54 It is necessary to say something about the applicant's complaint that the trial judge ordered that the whole of the sentence for dangerous driving be served in cumulation with the head sentence. The circumstances of this offence are quite distinct from the enterprise of burglary and theft on which the applicant was engaged. Section 64 of the Road Safety Act 1986 (Vic) provides:
(1) A person must not drive a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable to a fine of not more than 240 penalty units or to imprisonment for a term of not more than 2 years or both and on finding a person guilty of the offence the court must, if the offender holds a driver licence or permit, cancel that licence or permit and must, whether or not the offender holds a driver licence or permit, disqualify the offender from obtaining one for such time (not being less than 6 months or, if the vehicle was driven at a speed of 45 kilometres per hour or more in excess of that permitted, 12 months) as the court thinks fit.
55 The sentencing judge took into account the following description of the circumstances of this offence contained in the Prosecution's opening:
At about 7:30am on 13 August 2011, a number of police investigators attended at the underground car park of the Sebel hotel on the corner of Lorne Street and Queens Road, Melbourne. They attended in four unmarked police cars and planned to arrest the accused at the car park. One of the unmarked police vehicles was to be used to block the exit ramp.
As the police approached the two accused to arrest them, they jumped into the Holden Commodore ... and drove through the car park at high speed. Police shouted, 'stop police', but the Commodore drove up the exit ramp and through the closed boom gate at a fast speed. Jomaa was the driver of the vehicle and Atiyeh was the front seat passenger. Detective Senior Constable Philip Paine who was walking down the exit ramp yelled 'stop police, don't move'. The Commodore did not stop or slow down and as a consequence DSC Paine took evasive action to avoid being hit.
The Commodore then collided with the right front passenger side of the unmarked police vehicle as it was being driven down the exit ramp, pushed it out of the way, and continued to travel at high speed out of sight towards Albert Park lake. The collision caused extensive damage to both vehicles. The damaged Commodore ... was later discovered by police located nearby on the eastern side of Queens Lane between Beatrice Street and Roy Street, Melbourne.
56 There is no challenge that the sentence was excessive; the only complaint is that the whole of the sentence is to be served cumulatively with the head sentence. The applicant submits: 'notwithstanding the offence occurred as part of a course of conduct and occurred on the same day as counts [13] to [16]'. However, the dangerous driving offence was different in kind from the other offences that constituted the 'parts of a multi-faceted course of criminal conduct'. The criminality in the dangerous driving was not of the same type as that involved in the burglaries and thefts on that day. The way in which the applicant drove the car was extremely dangerous. There was no error in principle in the judge's distinctive treatment of this offence.[36]
57 At the hearing of the application, the respondent did not object to the addition of the further ground of appeal.[37]
58 In sentencing the applicant, the sentencing judge could not address the question of parity in so far as he had yet to deal with Atiyeh.
59 On 14 April 2014, the sentencing judge sentenced Atiyeh. The reason for the delay in the sentencing of Atiyeh appears to have been that, at some point, there was a change in his plea as well as a change in his solicitors.
60 Whereas the applicant had pleaded guilty to six counts of burglary, 10 counts of theft and a summary offence of driving in a manner dangerous to the public, Atiyeh pleaded guilty to seven counts of burglary and 11 counts of theft.
61 In sentencing Atiyeh, the sentencing judge made reference to the prior convictions of each of the co-accused. He said:
With respect to you and your co-accused's prior convictions, you have each admitted to a significant number. Mr Jomaa appeared on 33 occasions between 1992 and 2009, that is, over a period of 17 years, which is reflected in his 18 page criminal history report. He has been in prison before. The most recent offences occurred in 2009, were dealt with in the Magistrates Court and concerned various dishonesty matters similar to those with which I have to deal. On 27 May 2008 he was before the County Court in Melbourne and sentenced to imprisonment of 26 months, with a non-parole of 16 months, for sentences involving burglary, theft and various other matters. In 2007 there was a further jail offence.
With respect to you, Mr Atiyeh, there appear to be 18 court appearances between 1992 and 2009, that is, spanning a period of 17 years. Most recently, in 2009 you were in the Magistrates Court at both Melbourne and Heidelberg for matters of dishonesty, possessing weapons without approval. You were sentenced to terms of imprisonment. You were before the County Court at Melbourne on 7 November 2008, and sentenced to three years and three months, with a non-parole period of two years, with respect to a matter involving drugs. I have the advantage of the sentencing remarks of His Honour Judge Murphy of 31 October 2008, and that's Exhibit B.
Your criminal history reveals, in 2005, matters of resisting police and assaulting police. But then, otherwise, in 2001 there are matters of dishonesty, involving handling and receiving or retaining stolen goods. In 1998, driving whilst disqualified. [In] 1997, you were driving whilst your licence was suspended, as well as other matters involving assaulting police and resisting police. In 1995 there were matters of burglary and theft. In 1994, assaulting and resisting police, and other street offences. In 1993 and 1992 there were matters relating to possession and use of cannabis. In 1992, matters of theft and robbery. Clearly, the prior offences of dishonesty are relevant to my task of sentencing you today.[38]
The sentencing judge then addressed matters that related solely to Atiyeh. Then, he addressed the issue of parity. He said:
With respect to the issues of parity with your co-accused, Jomaa, I note that you are to be sentenced on two more charges than your co-accused. However, he has a more extensive criminal history. That the amounts involved in the crimes committed by you are significantly more than the amount involved in the crimes committed by him. And, of course, finally, you fall to be sentenced in respect of four continuing criminal enterprise offences, and that means the maximum sentence with respect to those particular charges [is] doubled.[39]
62 The sentencing judge then sentenced Atiyeh in respect of each of the charges to which he had pleaded guilty. He made orders for cumulation. In the event, he sentenced Atiyeh to a total effective sentence of seven years and four months imprisonment[40] and directed that he serve a minimum term of four years and six months before becoming eligible for parole.
63 It will be recalled that, in sentencing the applicant, the sentencing judge ordered that there be a total effective sentence of six years and nine months imprisonment.[41] The non-parole period was set at five years.
64 The applicant has based his further ground of appeal on the fact, that his non-parole period was set at five years whereas that of Atiyeh was set at four years and six months.
65 In Kelly v The Queen,[42] Redlich and Weinberg JJA summarised the principles to be applied with respect to the issue of parity. They said:
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the cooffenders is 'marked' or, as Dawson J said in Lowe v R, where the differences between the sentences are 'manifestly excessive'.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the cooffender's penalty, although it is well established that 'there is no principle of law that sentences must strictly compare'.
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the cooffender. While the sentence imposed on the cooffender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the cooffender.[43]
66 The applicant referred to R v Goodwin.[44] In that case, Eames JA said:
The Court would only intervene on grounds of disparity where the disparity, or, as may be more appropriately expressed for this case, where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done: see R v Taudevin, Lowe v The Queen. Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: see Wong v The Queen. Where such disparity was disclosed the Court may intervene even though the sentence does not otherwise disclose error in the sentencing process: see R v Wilson.[45]
67 In the present case, it is not possible to say that the disparity in the non-parole periods is 'manifestly excessive' or that any sense of grievance that the applicant may harbour in respect of them is justified. The sentencing judge expressly directed himself to the circumstances that were personal to each of the co-offenders. He recognised that there were material differences between the circumstances of the two co-offenders. Although he took into account the fact that Atiyeh was sentenced on more charges than the applicant and that the amounts involved in the crimes committed by Atiyeh were significantly more than the amounts involved in the crimes committed by the applicant, he also noted that the applicant had a 'more extensive criminal history' than that of Atiyeh. It is evident that the sentencing judge considered the differences in their circumstances justified the difference in the non-parole period. Such an approach was open to him.
68 Most importantly, Atiyeh committed his offences while he was still on parole for offences under Commonwealth legislation. Atiyeh is required to complete the period of time for which he was sentenced for those offences before the commencement of the time he is required to serve in respect of the present offences.[46] In sentencing Atiyeh, the judge made express reference to the circumstance: '[t]here's one final matter to which I must refer before I announce sentence in this matter, and that is the consequence which attaches to the fact that you committed the charges during the parole period of a Commonwealth sentence that you were then serving.'[47] As a result, Atiyeh must serve one year and three months in respect of those Commonwealth offences (being the unexpired period of his parole in respect of those sentences) before the commencement of the total effective sentence of seven years and four months (for which he was sentenced in respect of the current offences). As a consequence, he will be in gaol for five years and nine months before he can be considered for parole. In, R v Piacentino; R v Ahmad,[48] this circumstance was considered. It was there held that the fact that a defendant must serve an unexpired period of parole before the commencement of the head sentence was a matter to be taken into account under the principle of totality.[49] It is plain that this circumstance was addressed by the sentencing judge as a matter of 'totality'. If the sentences of the applicant and Atiyeh are compared, the shorter non-parole period for Atiyeh seems inexplicable. But, when regard is had to the fact that Atiyeh's present sentence will not commence until the completion of his sentence for the Commonwealth offences, the judge was obliged to make adjustments to his present sentence to accommodate that circumstance. The applicant can have no justifiable sense of grievance.
69 The application for leave to appeal against sentence should be dismissed.
[1] DPP v Jomaa (Unreported, County Court of Victoria, Judge Parsons, 6 August 2013) ('Jomaa Reasons').
[2] Leave of the Court of Appeal is required for an appeal against sentence; Criminal Procedure Act 2009 (Vic) s 278. Leave to appeal may be granted by a single judge; Criminal Procedure Act 2009 (Vic) s 315(1). Where a single judge refuses an application for leave in relation to any ground of appeal, an applicant is entitled to have the application determined by the Court of Appeal constituted by two or more Judges of Appeal; Criminal Procedure Act 2009 (Vic) s 315(2). The procedure is regulated by the Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 2.08. Rule 2.08(2) contains the following: 'Where the Registrar has notified an appellant that leave to appeal has been refused in whole or in part, the appellant may elect under section 315 of the Act to renew the application for leave to appeal...' (hence the title 'elections').
[10] Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579, 581. See also R v Allpass (1993) 72 A Crim R 561, 562; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-326, 329 and 340; DPP (Cth) v Goldberg [2001] VSCA 107; (2001) 184 ALR 387, 391 (Vincent JA, Winneke P and Batt JA agreeing); and Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605-606.
[11] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 680.
[12] R v Boaza [1999] VSCA 126, [42] (Winneke P).
[13] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[16] Fuller v The Queen [2013] VSCA 186, [37] (Ashley JA with whom Hansen JA agreed). See also Kells v The Queen [2013] VSCA 7, [48] (Tate JA, with whom Buchanan JA and T Forrest AJA agreed).
[19] Subsection 16(1A) includes terms of imprisonment for offences committed while on bail or on parole. It also includes terms of imprisonment imposed on a serious offender within the meaning of Part 2A for a relevant offence within the meaning of that Part.
[21] Ibid 307-308 (citations omitted); In Peters v The Queen [2013] VSCA 222, Maxwell P said (at [7]): ' There is clear law that, having decided the individual sentences in a multiple offence case and having formed a view about the appropriate measure of cumulation, a sentencing judge should examine the total sentence which those orders would produce and ask whether there is any disproportion between the total sentence and the total criminality involved in all of the offences' (citation omitted).
[27] Ibid 60 [58] (citation omitted).
[29] Ibid 521 [91] (citation omitted).
[33] Ibid 92-93 (the emphases are those of Callaway JA.)
[35] Ibid [63]-[66] (citations omitted).
[36] In the appeal of Johnson v The Queen [2013] VSCA 277, the Court did not interfere with a sentence of six months imprisonment for dangerous driving. The facts giving rise to the charge involved a police pursuit. In the appeal of Rawiri v The Queen [2013] VSCA 130, the court re-sentenced the applicant to six months imprisonment for the charge of dangerous driving.
[38] DPP v Atiyeh (Unreported, County Court of Victoria, Judge Parsons, 14 April 2014) ('Atiyeh Reasons') [27]-[29].
[40] Atiyeh was also fined $2000 in respect of four charges.
[41] The applicant was also fined $2000 in respect of four charges.
[43] Ibid [5]-[7] (citations omitted). See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609-610 (Gibbs CJ), 611 (Mason J), 623 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301-302 (Dawson and Gaudron JJ).
[46] See Crimes Act 1914 (Cth) s 19AQ.
[47] Aityeh Reasons [50], see also [75].
[49] Ibid 518 [78], 522 [97], 522-523 [103]-[104], 523 [105] - 528 [138] (Eames JA with whom Buchanan, Vincent, Nettle and Redlich JJA agreed). See also 529 [142] (Nettle and Redlich JJA). See R v Hunter [2006] VSCA 129; (2006) 14 VR 336, 341 [28]-[29].
Jomaa
The Queen [2014] VSCA 103
(2010) 31 VR 634
(1936) 55 CLR 499
(2009) 83 ALJR 579
(2000) 202 CLR 321
(2001) 184 ALR 387
(2001) 207 CLR 584
(2008) 20 VR 677
(1999) 195 CLR 665
(1997) 189 CLR 295
(1988) 166 CLR 59
(2011) 35 VR 43
(2007) 15 VR 501
(1982) 30 SASR 84
(1984) 154 CLR 606
(2006) 14 VR 336