Kaya v The Queen [2014] VSCA 55

1 On 7 November 2013, the applicant came before the County Court by way of an appeal from the Magistrates' Court at Dandenong. On 1 August 2013, he had been sentenced by a magistrate to an aggregate term of 4 months' imprisonment for two separate offences of driving whilst his licence was suspended. As a result of his having been so convicted, he was before the County Court, as well, for breach of a two year suspended sentence that had been imposed upon him on 18 July 2012.

2 The suspended sentence arose out of a guilty plea to a charge of recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958. The maximum penalty for that offence is, of course, 15 years' imprisonment. It seems that the applicant, having been involved in a bitter dispute with his brother over their joint business affairs, deliberately drove his truck at him, knocking him down, and leaving him with a broken leg. The applicant was dealt with very leniently for that offence, receiving, as we have said, a wholly suspended two year sentence.

3 The driving offences that led to the Magistrates' Court convictions were both committed while the applicant was serving his suspended sentence. It is noteworthy that the first of these offences occurred within about six weeks of his having been given a suspended sentence. It was his conviction for these offences that gave rise to the applicant being charged with having contravened that suspended sentence, contrary to s 83AB(1) of the Sentencing Act 1991.

4 The applicant sought, in the County Court, to argue that there were 'exceptional circumstances' within the meaning of s 83AR(2) of that Act which would make it unjust to restore, in its entirety, the two year sentence originally imposed. He relied, in support of that submission, upon a series of factors. These included the failure of his business and consequential loss of his house, the fact that his wife was pregnant and due to give birth in April 2014, and his anxiety and 'moderately severe' depression. These psychiatric and psychological conditions were said to be attributable to his current problems, arising out of his having to face the County Court for the breach of the suspended sentence.

5 That submission failed. The County Court judge (who was the same judge who had sentenced him in July 2012) determined that the entirety of the two year period that had been wholly suspended should be restored.

6 In addition, the judge sentenced the applicant to a term of two months' imprisonment (the maximum under s 83AB(1) of the Sentencing Act 1991 being three months' imprisonment) for the offence of contravening a suspended term. He made the restored sentence and the sentence for the contravention wholly cumulative. Moreover, having concluded that the aggregate sentence of four months' imprisonment imposed by the Magistrates' Court should be reimposed, his Honour made that sentence wholly cumulative upon both the restored sentence and the sentence for the contravention.

7 In effect, therefore, the applicant was sentenced to a total effective term of two years and six months' imprisonment with a non-parole period of two years.

8 The application before this Court concerns only the decision to restore the whole of the otherwise suspended sentence, and the sentence imposed for its contravention. There is no jurisdiction, in this Court, to deal separately with the four month term imposed by his Honour when he set aside the sentence imposed by the Magistrates' Court, and reimposed it.

9 The applicant originally sought to rely upon four grounds. However, during the course of the hearing, ground 1 was expressly abandoned.

10 The first ground upon which the applicant proposes to rely is best described as somewhat technical. It is also, in our opinion, devoid of merit. He contends that the non-parole period of two years that was fixed contravenes the statutory requirement under s 11(3) of the Sentencing Act 1991 that there be a gap of at least six months between the head sentence and the non-parole period when such a period is fixed. He submits that the judge's decision to affirm the four month aggregate sentence imposed by the Magistrates' Court involved an exercise of appellate, rather than original jurisdiction. Accordingly, so it is said, the judge was wearing 'a different hat' when he affirmed that sentence on appeal.

11 It was submitted that the effect of this distinction was that the non-parole period should be viewed as only being linked to the sentences imposed in the exercise of original jurisdiction, which, of course, amounted to a total of two years and two months. That would mean, if it were correct, that his Honour imposed a total effective sentence of two years and two months, and fixed a non-parole period of two years. That would be the very thing that s 11(3) of the Sentencing Act 1991 precluded him from doing.

12 In our view this argument must fail. Section 11(4) of that Act requires a court, when sentencing an offender in respect of more than one offence, to fix a non-parole period in respect of the 'aggregate period of imprisonment' that the offender will be liable to serve under 'all the sentences then imposed'.

13 The judge who sentenced the applicant exercised both original and appellate jurisdiction, and did so simultaneously. It would be artificial in the extreme to treat the resolution of the appeal as a separate and distinct proceeding, involving the passing of a sentence itself separate and distinct, from the sentences imposed in the exercise of original jurisdiction. Contrary to the applicant's submission, his Honour was not wearing a 'different hat', when dealing with the appeal, from that which he wore when dealing with the contravention. All of these matters were not just interrelated, but also dealt with as part of the one proceeding.

14 Moreover, it must be remembered that the sentence imposed in relation to the appeal was, pursuant to s 256(5) of the Criminal Procedure Act 2009, a sentence of the County Court 'for all purposes'. Those words mean exactly what they say.

15 That takes us to the remaining two grounds. In essence, these are manifest excess, and a failure to give proper weight to the principle of totality.

16 Section 83AR(3) of the Sentencing Act 1991 provides that where a court orders an offender to serve a term of imprisonment that had been held in suspense, the sentence must be served immediately, and, unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.

17 Since s 83AR(1) contemplates that the court will determine whether there has been a breach of the suspended sentence prior to determining what effect, if any, that breach should have upon the suspension, it appears that there is a presumption of cumulation in relation to the restored sentence. That presumption can, of course, be rebutted.

18 In our opinion, it was well open, in the particular circumstances of this case, to restore the two year sentence originally imposed in its entirety. It may be that not every judge would have done so. Clearly, it would also have been open to restore that sentence in part, rather than as a whole. Nonetheless, the gravity of the original offending, and the extraordinary generosity afforded to the applicant when he received a wholly suspended sentence, made it perfectly reasonable, in this case, to do what his Honour did. As we have said, the applicant behaved deplorably by twice breaching orders that he not drive during the relevant period of his licence suspension. His offending was compounded by his having been warned, in the clearest of terms, of the likely consequences of his actions.

19 At the same time, it must be acknowledged that the applicant has now been severely punished for his wanton disregard of court orders. Section 83AB(1) of the Sentencing Act 1991 explicitly contemplates that a person may receive a penalty for breaching a suspended sentence, in addition to the sentence for the offence constituting the breach. Nonetheless the Crown, very fairly, has acknowledged that orders for complete cumulation are unusual, even where the presumption is in favour of such cumulation. The Crown has also acknowledged that the overriding principle of totality must be borne in mind, even in a case such as this.

20 The judge gave no reasons why he considered it appropriate to cumulate, in their entirety, all of the three separate sentences he imposed. We consider, with respect, that his Honour ought not to have ordered such cumulation, and certainly ought to have given reasons as to why some measure of concurrency was not appropriate.

21 There is a particular danger, in a case such as this, that the applicant will end up having been punished excessively for what he has done. It is true that he twice drove while his licence was suspended. He did so brazenly, and with full knowledge, each time, that he was in breach of court orders. Nevertheless, his stupidity in that regard has resulted in him having to serve a substantial term of imprisonment, and one extending far beyond what the actual contravening conduct itself could ever have merited.

22 As we have previously said, the four month term of imprisonment for the two driving offences is not before this Court. However, his Honour's order that that sentence be served cumulatively upon both the sentence for the breach and the restored sentence is effectively under challenge through the complaint about the failure to have regard to the principle of totality. In our view, there should have been some measure of concurrency, at least, given the somewhat unusual circumstances of this case.

23 In addition, the applicant has received a non-parole period which, at two years on a total effective sentence of two years and six months, is 80 per cent of the head sentence. The judge gave no explanation as to why such a high non-parole period was fixed. In accordance with established principle, that of itself invites appellate scrutiny. In this case, the length of the non-parole period does not withstand such scrutiny.

24 We would grant leave to appeal and treat the appeal as having been heard instanter. We would affirm the sentences imposed on the charge of recklessly causing serious injury and the charge of contravening a suspended sentence order and the orders for cumulation made in relation to them.

25 We would set aside the order that the aggregate sentence of four months' imprisonment imposed below be served cumulatively upon the sentences imposed on the charges of recklessly causing serious injury, and contravening a suspended sentence order. In lieu thereof we would order that the aggregate sentence be served concurrently with those two sentences.

26 That makes a total effective sentence of two years and two months' imprisonment. The sentence will take effect from 7 November 2013 in order to ensure that the applicant receives the benefit of the four month aggregate sentence (which, in accordance with s 15(1)(a) of the Sentencing Act 1991, has already been served) being now made concurrent with the other two sentences. We would fix a non-parole period of 18 months.

27 Pursuant to s6AAA of the Sentencing Act 1991, we state that, but for the applicant's plea of guilty, a total effective sentence of three years, with a non-parole period of two years, would have been imposed.