Court of Appeal (Vic)|2010-09-16|Before: ASHLEY and WEINBERG JJA

Key v The Queen [2010] VSCA 242 (16 September 2010)

R v Key (Unreported, County Court of Victoria, Judge Nicholson, 19 December 2008)

1 Rochelle Key, a woman now aged 28, appeals by leave against sentence passed in the County Court on 19 December 2008. On that day, having pleaded guilty to a count of armed robbery and a count of attempted armed robbery, the appellant was sentenced on the first of those counts to 38 months' imprisonment and on the second to 28 months' imprisonment. The judge cumulated 4 months of the latter sentence on the former. The total effective sentence was thus 42 months' imprisonment. The judge fixed a non-parole period of 26 months' imprisonment. She made certain ancillary orders.

2 The learned judge also sentenced a co-offender, Damian Greer, on the same day. He was sentenced to 34 months' imprisonment on the count of armed robbery, and to 24 months' imprisonment on the count of attempted armed robbery. With partial cumulation, the total effective sentence was 38 months' imprisonment. The judge fixed a non-parole period of 18 months' imprisonment, made ancillary orders, and made a declaration with respect to pre-sentence detention.

3 On 16 June 2009, the appellant instituted an application for extension of time within which to lodge a notice of appeal. The application was granted on 6 October 2009. Buchanan JA granted leave to appeal on 12 February 2010, the Crown having conceded that it was reasonably arguable that the learned sentencing judge had undervalued the appellant's guilty plea.

4 There are three grounds of appeal, the third being added by leave this morning:

The learned sentencing judge erred in failing to have sufficient regard to the appellant's plea of guilty.

2. The sentence imposed is manifestly excessive.

The learned sentencing judge erred in the application of the parity principle.

5 The circumstances of the offending were as follows: Adele Rama was driving a vehicle in Flemington at about 6.30pm on 8 April 2008. There was a passenger in his car, Mohammed Cameron. A vehicle driven by Greer, in which the appellant was a passenger, overtook Mr Rama's vehicle, and the offenders gestured to Mr Rama to pull over. Both vehicles pulled into a driveway. The offenders approached Mr Rama's vehicle. Mr Rama and Mr Cameron remained inside that vehicle. Greer then pulled out a knife, threatened Mr Cameron, and demanded money. Mr Cameron gave over $100, and also a mobile telephone.[1] At the same time, the appellant produced a small knife and pointed it at Mr Rama's chest through the open window of the vehicle. The appellant asked Mr Rama what he was doing. He replied he was going to call the police. The appellant said - 'Whatever. Give me money. You as well'. The demand came to nothing.

6 The Crown case was that the offenders either acted in concert, or else that one aided and abetted the other in committing the offences.[2]

7 Mr Cameron and Mr Rama made victim impact statements. The former stated that he was 'quite scared at this time', as he believed the man would have used the knife. The latter stated that he was 'very scared and so was my friend. He thought that 'they were going to use a knife, and I would be injured, maybe killed'.

8 Greer was arrested on 10 April 2008. He was interviewed and made some admissions, albeit incomplete.

9 On 17 April the appellant was interviewed at the Dame Phyllis Frost Centre, where she had been detained in relation to other matters. The mobile phone taken from Mr Rama was found. The appellant later made, apparently on legal advice, a 'no comment' record of interview.

10 The appellant pleaded guilty to the charges upon which she was eventually sentenced at a committal mention on 4 July 2008. That was the earliest available opportunity in the court process.

11 On the plea, the appellant's early plea of guilty was called in aid. The learned judge said this:

By each of your pleas the community has been spared the time and cost of a trial and witnesses, including your victims, have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that each of you intimated early your intention to plead guilty to these matters and I accept that that indication was at the earliest opportunity at the committal mention. I have referred t your investigation and arrest and the fact that you made certain admissions in your record of interview, Mr Greer. I have already referred to your 'no comment' record of interview, Ms Key.
In the circumstances, I am prepared to accept, in each of your cases, that your plea does indicate true remorse for your actions. Those matters were confirmed when you gave evidence before this court, Ms Key. I found your evidence to be credible in parts and I considered you to be genuine in your expression of remorse and empathy for your victims.

12 The judge said this about the appellant's personal circumstances:

... you are 27 years of age, a single parent in effect. You have a seven year old son Tyler who lives with his father in Rosebud. You also have a young daughter, Isabelle who is currently in foster care. I have referred to your hopes and aspirations in relation to resuming custody in respect of each of your child and take those matters into account.
Ms Key, you are the only child. Your father left home when you were approximately five years of age and you were left in the care of your mother in a house in Coburg. You reported to Dr Wong about concerns you had and difficulties you experienced when growing up. I am told that your mother suffered severe depression after the marriage breakdown. The property had to be sold to cover the costs of medical expenses, she was unable to provide proper care for you and as a result you were sent to Canberra to live with your father. When your mother recovered you returned to Melbourne to keep her company. At that stage you lived with your mother in a bungalow in the back of a house in Deer Park. You stayed there for a number of years before your mother saved enough money to buy another house in Melton.
Over that time, your mother found she was too ill to care for you and at those times you were sent back to Canberra. I am told and accept the matters placed before the court that when your mother entered into a new relationship you felt abandoned and you were sent to Canberra. You did not return to Melbourne until you were 13 years of age and upon your return you found it difficult to relate to your mother's new family. You also had concerns about your mother neglecting you and you began to behave unreasonably. You frequently confronted your mother, causing arguments on a regular basis.
I am told about the contact your mother made with the Department of Human Services and that you were subsequently removed from the family home and placed in foster care. Unfortunately, those arrangements came to an end when you were about 14 years of age and you were placed in a woman's refuge. At that point of time you met a number of so-called friends through the refuge arrangement and they introduced you to heroin and other illicit drugs. You also committed a number of criminal offences around that time. I have been told about the tragic death of your mother and other relevant matters. Dr Wong also refers to your hope to continue your rehabilitation and to regain custody of your children.
Dr Wong opined that you obviously have experienced drug-related difficulties and that you do not have any neurological impairment. However, he was of the view that given your drug abuse, there could be a high risk of damage to your brain and other issues. He said the key to working with you, Ms Key, would be to focus on teaching you to be more inner directed and to structure your environment. He recommends effective counselling which also should include a detoxification program and many other matters. He contended that without intervention you face a high risk of increased drug-related problems. I have taken that opinion into account.
I have also taken into account the contents of the report from Dr Kara Grainger dated 17 November 2008 and the Certificate of Completion dated 17 November 2008 in relation to a program you had undertaken through SHARC in relation to renegotiating relationships. I have also taken into account your evidence in relation to your efforts at rehabilitation and your proposals in relation to rehabilitation upon your release and resuming custody of your children.

13 The judge took note of the appellant's prior convictions. This is what she said:

I now turn to your prior convictions, Rochelle Key. There are some 52 such convictions from seven court appearances between 27 September 1996 and 24 September 2007. A number of those prior convictions involve convictions for dishonesty offences including theft, possession of property being the proceeds of crime and offences including failing to answer bail, possession of a drug of dependence, and possession of a dangerous article. I have also taken into account that you have prior convictions for recklessly causing injury, unlawful assault, recorded on 3 May 2004. You also have two prior convictions for assault recorded on 9 July 2007. I consider those prior convictions to be relevant to my task in sentencing you today. I note and take into account that you have breached previous court orders including a Community-based Order and a suspended sentence.

14 There were also subsequent matters in the appellant's case:

... I have been informed of a number of matters for which you were sentenced on 12 June 2008 at Melbourne Magistrates' Court when you were sentenced to a Total Effective Sentence of 11 months' imprisonment. 65 days were reckoned as pre-sentence detention. You were convicted in respect of a number of offences including offences of dishonestly dealing with property suspected as proceeds of crime, driving under the influence of drugs and an attempt to commit an indictable offence. The commission of those offences took place from 29 November 2007 through to 9 April 2008.

15 The subsequent matters, the learned judge understandably said, 'obviously give the Court some concern about the prospects of your rehabilitation and likelihood of re-offending'.

16 Nonetheless, her Honour accepted that the appellant had 'some prospects of rehabilitation'. She accepted also that the appellant had 'made a promising start in [her] campaign to address [her] drug problem', this giving the Court 'grounds for optimism'.

17 The judge said this about the relationship between the appellant's drug abuse and the instant offending:

Much has been mentioned about your respective battles with drug addiction. I have also taken into account, Ms Key, that you had made efforts in the past to undertake counselling in relation to that matter. I accept that your offending was drug related and was motivated by a desire to feed your respective heroin habits by stealing money. However, each of you, as others in the community, must realise, the commission of crime in order to support a drug habit is no excuse for the commission of offences. However, in each of your cases, it does go a long way to explain the nature of your offending.

18 Concerning the gravity of the offending, the learned judge said this:

I accept each of your counsel's submissions that, in one sense, your offending was unsophisticated and without the usual hallmarks of an armed robbery. However, you each had a knife when you made threats to your victims and I accept counsel's submission that no effort was made to disguise identity and your offending was destined to be detected. However, it was perpetrated on innocent victims, whilst in their car, and the rights and safety of members of this community who travel and use our highways must be protected. It cannot be tolerated that innocent people will be exposed to abuse, violence or the threat of personal injury as they travel along the roads of this State. You verbally interfered with and endangered your victims and therefore you and others who embark on such a course of conduct must anticipate that the response of the courts will be stern.

19 The judge noted that commission of the instant offences meant that the appellant breached the terms of a partly suspended sentence imposed in the Magistrates' Court in July 2007; and further, that the offences were committed whilst she was on bail for other offences. The latter circumstance called s 16(3C) of the Sentencing Act into play.

20 The judge accepted that imprisonment would impose some hardship upon the appellant. But it was not of an extent, in her Honour's opinion, as to call for the imposition of an otherwise inappropriate sentence.

21 The judge concluded that the entire circumstances of the offending and of the offenders meant that the appellant should be sentenced somewhat more heavily than Greer.

22 The appellant had been in custody since 9 April 2008. Although the judge's remarks at [85] are somewhat confusing, it appears that the period of custody between 9 April 2008 and sentence on 19 December 2008 was entirely attributable to matters dealt with on 12 June 2008. That is why no pre-sentence detention was to be brought to account. On the other hand, the concept of totality - both generally and as exemplified by R v Renzella[3] - was in point, and the learned judge stated that she was giving effect to those principles in the sentence imposed.

23 In my opinion there is one plain defect, and two probable defects, with respect to the sentence which the learned judge imposed. The latter involve the sentence having implications which the judge seems unlikely to have intended.

24 In the first place, the declaration which the judge made under s 6AAA of the Sentencing Act shows that she allowed a minimal discount for a plea of guilty[4] made at the earliest opportunity, a plea which had utilitarian value and which the judge considered was accompanied by true remorse. Without attempting to be prescriptive as to what discount will be appropriate in given circumstances, I think it is very clear that the discount allowed here was altogether too little, and thus indicative of sentencing error.[5]

25 Second, the sentence which the judge imposed, by reason of s 16(3C) of the Sentencing Act, commenced, subject to contrary direction, when the 11 months' sentence imposed on 12 June 2008 ended. In consequence, the appellant faced, at time of sentence in December 2008, the prospect of uninterrupted custody between 9 April 2008 and 9 September 2012.

26 The learned judge twice stated that it was not her intention that the appellant should serve the sentence which she imposed cumulatively upon the sentence which the appellant was then serving.[6] However, her Honour also said that she would make the appropriate declaration with respect to pre-sentence detention in the case of both offenders - although there was no such declaration to be made in the appellant's case; and she also said, presumably referring to the appellant, that -

...I have determined to exercise appropriate discretion and the time you have served in custody, which is not the subject of a Section 18 Declaration, is doubly warranted and will be taken into account to the appropriate degree.[7]

27 In the event, the minimum effect of what her Honour did - because she did not 'otherwise direct' - was that the sentence which she imposed was cumulated on about 8 months (out of 11) of the June 2008 sentence.[8] Upon that assumption, the appellant's overall sentence would expire in mid June 2012, after 4 years and 2 months of continuous custody.

28 For two reasons, it seems improbable that this is what her Honour intended. (1) The difference between the overall period of imprisonment to be served by the appellant and the period to be served by Greer under his head sentence was thereby much expanded. (2) There was very little apparent application of Renzella - the appellant being 'allowed' 3 months out of 11.

29 Third, the judge fixed a non-parole period.[9] Because a non-parole period was not fixed in June 2008, s 15(1) of the Sentencing Act applied. In the result, as I apprehend it, the appellant did not begin to serve the non-parole period until about 9 March 2009.[10] Effectively, that period will not end until May 2011. The learned judge's attention was not directed to s 15(1).

30 In her sentencing remarks, her Honour noted that counsel for both offenders had argued that longer than usual non-parole periods should be fixed; and she stated that she had taken those submissions into account. Whilst that was somewhat ambiguous, plainly she did not reject the submissions. The effect of s 15(1), however, is that the non-parole period - being a little less than 29 months (not 26) out of 42 - represents about 70 per cent of the head sentence which her Honour imposed.[11] It seems improbable that this is the outcome which her Honour intended.

31 The error - or errors - necessitate the appeal being allowed and appellant being re-sentenced. There was no argument to contrary.

32 Before proceeding to re-sentence the appellant, seven matters should be noted. First, counsel for the appellant emphasised in his submissions today that although it was legitimate for the judge to conclude that the sentence imposed upon his client should be a little heavier than the sentence imposed on Greer, the effect of what her Honour did, both in respect of the overall period of imprisonment to be served and the non-parole period, was to produce a substantial and unwarranted difference in the sentences to be served by the offenders. The overall period raised an issue of totality. The non-parole period raised an issue of disparity.

33 Second, it is a corollary of the matter just mentioned, appellant's counsel submitted, in substance, that the effect of this Court's orders should be to bring close the total periods of imprisonment to be served by his client and Greer; likewise the non-parole periods. Counsel for the Crown did not demur, though submitting that a differential needed to be maintained.

34 Third, counsel for the appellant tendered certificates and testimonials which brought up to date his client's steps towards rehabilitation whilst in prison.[12] Their content was quite impressive, and relevant to what sentence this Court should impose. The real test of the appellant's rehabilitation will come, of course, when the she is back in the community.

35 Fourth, both counsel agreed that, the sentence imposed by the Magistrates' Court having now been fully served, this Court when re-sentencing the appellant need have no regard to s 16(3C) of the Sentencing Act. I am content to proceed on that footing.

36 Fifth, s 17(1) of the Sentencing Act states that, subject to ss16 and 18, sentence commences on the day that it is imposed. If s 16(3C) is treated as being irrelevant, the appellant commenced to serve her sentence for the instant offences on 19 December 2008; and she will continue to do so under the orders made by this Court. Section 15(1) does not gainsay that. It has its own area of operation. See DPP v Kennedy.[13]

37 Sixth, in order to achieve acceptable totality, in doing so to give effect to Renzella, it will be necessary to impose lesser sentences upon the appellant in respect of the instant offences than would otherwise seem appropriate. The sentences which I propose need to be understood in that light.

38 Seventh, the non-parole period which I propose has been reduced to reflect the fact that, by reason of s 15(1) of the Sentencing Act the appellant could not commence to serve that period until the expiry of the sentence imposed by the Magistrates' Court - that is, in March 2009.

2. The sentence passed below is quashed. In lieu thereof, the appellant is sentenced on count 1 to 2 years and 6 months' imprisonment, and on count 2 to 1 year and 6 months' imprisonment. Direct that 4 months of the sentence on count 2 be cumulated on the sentence on count 1. The total effective sentence is thus 2 years and 10 months' imprisonment. Fix a non-parole period of 20 months' imprisonment.

40 I would declare, pursuant to s 6AAA of the Sentencing Act, that but for the appellant's plea of guilty I would have sentenced her, assuming conviction, to a total effective sentence of 3 years and 6 months' imprisonment; and that I would have fixed a non-parole period of 2 years and 5 months' imprisonment.

41 I would make an appropriate declaration in respect of pre-sentence detention.

42 For the avoidance of any doubt, I should add this: it is the intention of the orders which I propose that the overall sentence imposed upon the appellant should end 42 months after April 2008 - that is, in approximately October 2011; and that the appellant should be eligible for parole 20 months after the expiry of the Magistrates' Court sentence in March 2009 - that is, in November 2010.

[1] The latter in fact belonged to Mr Rama.

[2] That is, Key aided and abetted Greer in the armed robbery, and Greer aided and abetted Key in the attempted armed robbery.

[4] It is permissible to consider a s 6AAA declaration in this connection: R v Howard [2009] VSCA 281.

[5] The judge also allowed a very small discount for the co-offender's plea of guilty. This tends to emphasise that something went inexplicably wrong in the sentencing exercise.

[6] Sentencing Remarks [65] and [74]. See s 16(3C) of the Sentencing Act.

[8] Arguably, the effect of s16(3C) was that all of the sentence which she imposed was cumulated on the entirety of the Magistrates' Court sentence.

[9] Her Honour did not have to fix a new non-parole period under s 14 of the Sentencing Act, because no non-parole period had been fixed in the June 2008 disposition.

[10] Counsel for the appellant informed us that Corrections Victoria is treating the non-parole period as having commenced at time of sentence in December 2008. Accepting that this is so, the question which remains is what the Sentencing Act dictates.

[11] Although it will be a considerably lesser percentage of the total period which the appellant prospectively faces in custody.

[12] They were admitted as an exhibit on the appeal.

[13] [2008] VSCA 263; (2008) 21 VR 431, 437 [24]-[26]. See also R v BF [2007] VSCA 217, a case which considered the correct approach to sentencing where ss16(3B), s 15(1)(b) and totality were in point.

Key v The Queen [2010] VSCA 242

At a glance

Court

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Judgment (68 paragraphs)

Key v The Queen [2010] VSCA 242 (16 September 2010)

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Cases Cited (1)