McCloskey-Sharp v The Queen [2015] VSCA 87

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The applicant was convicted following pleas of guilty on 15 October 2014 and was sentenced 19 December 2014 as follows:

3 years imprisonment with a non-parole period of 2 years imprisonment

2 The circumstances of the offending were as follows. In the early hours of 31 December 2012, the applicant was in Rye with a group of friends including Dylan Closter and Tyrone Russell. After having a few drinks at the caravan park where they were staying, the group had dinner at the Rye Hotel, before spending time at the Rye carnival. The group later moved to an area near the Rye pier, where they continued drinking together.

3 There were a number of groups of young people at the Rye foreshore that night. One of these groups included David Cassai and eight of his friends. They were strangers to the applicant and his friends.

4 The Cassai group had been celebrating a birthday at the Portsea Hotel. They had been drinking and were in varying stages of intoxication. They left Portsea on a bus at 12:30 am, heading for Rosebud, where they were staying. However the bus only went as far as Rye, so they proposed to walk the rest of the way. Around 12:45 am, they started walking along Point Nepean Road, spreading out into smaller groups as they walked. Their journey brought them into proximity with the applicant and his friends.

5 As they walked along past the shops, one of the members of the Cassai group, Jesse Smith, removed a street sign from its bracket. He trotted along for a while, carrying the sign like a lance or spear, trying to be funny. Some of his friends asked him to put the sign down. The applicant's friend, Closter, saw what Smith was doing and yelled at him to put the sign down. Closter repeated his angry demand and, as he was doing so, began to walk across the road towards Smith and the Cassai group. Smith eventually did put the sign down. At no stage did Smith use, or threaten to use, the sign as a weapon directed at anybody.

6 Closter crossed the road from where he had been standing and confronted another of the group, Cassai, by shoving his shoulder into him. After a short verbal exchange Closter threw a number of punches towards Cassai causing him to stumble backwards onto the roadway. Around this time the applicant and others in the group, including Russell, also crossed over from the other side of the street.

7 Vasu Phillips, who was a friend of Cassai, attempted to help Cassai up and Andrew John, another in the Cassai group, stood between Closter and Cassai. Closter punched John to the head causing him to fall to the ground and continued to pursue Cassai.

8 Cassai and Phillips were seen backing away and holding their hands up. The applicant and Russell came towards Cassai, John and Philips as they backed away. Phillips asked the applicant what was going on. The applicant said he didn't know, so Philips turned away. As he turned away and moved towards where Closter was still trying to hit Cassai, the applicant punched Phillips forcefully to the side of the head, causing a split above the eye. This punch formed the basis of Charge 1 - Recklessly Causing Injury.

9 Two other members of the Cassai group, Julian Geldard and Smith, also ran back towards Cassai and their other friends once they became aware of what was happening. As Geldard tried to break up a scuffle, Russell punched him to the face, causing him to fall sideways on the road. Then, almost immediately after, Russell punched Smith to the face, causing him to fall to the ground too.

10 Closter continued to chase the retreating Cassai, who had his hands up in a passive way. Closter then struck Cassai's head, causing him to fall backwards onto the ground, fracturing his skull and causing the traumatic brain injuries that led to his death later that day.

11 The involvement of the applicant in the attack on the Cassai group formed the basis for Charge 2 - Affray.

12 Russell was charged, along with the applicant, as a co-offender. Following a successful appeal against sentence by the Director of Public Prosecutions, Russell was re-sentenced by the Court of Appeal in the following terms:

Charge 1 - Recklessly Cause Injury = 18 months' imprisonment

Charge 2 - Recklessly Cause Serious Injury = 2 years 6 months' imprisonment

13 A total effective sentence of 3 years' imprisonment was imposed, with a non-parole period of 1 year 9 months.

14 The applicant seeks leave to appeal his sentence on two grounds:

1. The Learned Sentencing Judge erred in failing to impose a non-parole period in the Applicant's case that was sufficiently disparate to the non-parole period imposed in the case of the co-offender Tyrone Russell; and
2. The Learned Sentencing Judge erred in failing to give any mitigating weight to:

(a) the early indication that the Applicant was prepared to plead guilty to the charge of Affray; and

(b) the way the Applicant had conducted his defence with respect to the charges arising out of the "David Cassai" incident.

15 The applicant submitted that in setting a four month differential between the respective non-parole periods of him and Russell, the judge failed to properly apply the principle of parity or disparity, when regard is had to the very serious nature of the additional offence of which Russell was convicted.

16 The applicant concedes that there were some significant differences between the applicant's situation and that of Russell which counted both for and against the applicant. However, the applicant submits that whilst some of the factors in Russell's favour may explain the sufficiency of the nine month differential in the respective head sentences, those factors are not sufficient to explain the sufficiency of the four month differential between their respective non-parole periods.

17 The principle of parity is an aspect of equal justice. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a marked disparity between sentences which gives rise to a justifiable sense of grievance on an applicant's part, the principle may be said to have been infringed.[1] No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[2]

18 The sentencing judge acknowledged the need to reflect an appropriate relativity between the sentences imposed on Russell and the applicant. Her Honour observed in her sentencing remarks:

Parity with Mr Russell's sentence is of some importance. There are some differences between Mr Russell's offending and yours. Mr Russell hit two people in quick succession. He was a trained martial arts fighter and was sober throughout the offending; he would have been well aware of how hard he was punching both of his victims. But although you caused injury to only one victim, it was a serious instance of the offence; you punched Mr Phillips to the head while he was facing away from you, and after you had said words to indicate that you were no threat to him. The following matters also count against you from a parity point of view: you are older than Mr Russell, have a more substantial prior criminal history, and were on a suspended sentence at the time of the offending.[3]

19 The sentencing judge, having herself sentenced Russell, knew that Russell had pleaded guilty to a more serious charge of recklessly causing serious injury, in addition to the charge of recklessly causing injury. Her Honour also had the benefit of the Court of Appeal's decision following the Director's appeal against Russell's sentence at the time she passed sentence upon the applicant.

20 In addition to the fact that Russell had pleaded to an additional charge, her Honour identified the following as particularly relevant to the issue of parity:

• Russell was 21 at the time of the offending, and younger than the applicant who was 24.
• The applicant had a more substantial criminal history than Russell, which included several incidents of gratuitous violence in circumstances which involved the company of others.
• It was an aggravating feature in the applicant's case that he was subject to a suspended sentence at the time of his offending.

21 In assessing these differences, her Honour was entitled to have regard to the fact that the applicant's conduct in punching Phillips was a serious example of the offence, given that it occurred when the victim was looking away in circumstances where the applicant had represented that he posed no threat.

22 The non-parole period fixed by the Court of Appeal in Russell's case was just below 60 per cent of the head sentence. In the applicant's case it was just above 60 per cent. Given the applicant's more substantial criminal history, greater age and the fact that he committed the offence whilst subject to a suspended sentence, it is unsurprising that the applicant's non-parole period was proportionally marginally greater than Russell's. Whilst the Court of Appeal observed in Russell's case that general deterrence was a significant sentencing consideration in the circumstances, specific deterrence was also a significant consideration in the applicant's case, given the applicant's history of violence and disregard for the law.[4]

23 In my view, the parity ground of appeal is not reasonably arguable.

24 The applicant submits that the sentencing judge erred in failing to give any mitigating weight to an early indication that the applicant was prepared to plead guilty to the charge of Affray, or to the way the applicant conducted his defence with respect to the charges arising out of the incident involving Cassai.

25 It was submitted on the plea that the sentencing judge should accept that the applicant offered to plead guilty to the charge of Affray as early as April 2013. Whilst there was some dispute as to whether such an offer was conveyed to the prosecution, email correspondence demonstrates that it was the understanding of the applicant and his family that such an offer was to be put to the prosecution, albeit that it appears that the offer was conditional upon a withdrawal of two charges relating to incidents that occurred prior to those involving the Cassai group.

26 The applicant further submits that the election by the applicant's then counsel not to cross-examine any of the witnesses who were called to give evidence with respect to the incident involving Cassai at the committal is consistent with a desire on behalf of the applicant to achieve an appropriate resolution with respect to the charges arising from that incident.

27 In my view, these submissions should not ultimately be accepted.

28 Her Honour took account of the applicant's plea:

You are entitled to a discount on the sentence to be imposed upon you in recognition of this plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has been spared the time and cost of a trial of these charges against you. The family and friends of Vasu Phillips and the other victims of the affray have been spared what would undoubtedly have been a very traumatic trial.[5]

29 In the result, the applicant received a 25 per cent reduction in head sentence on account of his pleas of guilty and a marginally greater proportionate reduction to the non-parole period.

30 Furthermore, her Honour expressly addressed the question whether the Court should treat his plea as an early plea. Her Honour held that even if offers to plead to a single charge of affray or common assault were made, they were not offers to plead to charges which reflected the full criminality of the offending.[6] For this reason, the discount that would appropriately follow due to the subjective criteria of remorse and acceptance of responsibility was reduced.

31 In Phillips v The Queen, Redlich JA and Curtain AJA (with whom Maxwell P agreed) said:

The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists. Where a judge concludes that these subjective criteria do not exist, either having rejected the evidence or submissions which suggest such criteria are present or because of an absence of such evidence, no allowance will be required within the discount for these subjective criteria. Where there is a finding that the subjective criteria are only present to a limited extent, the supposed discount that would otherwise have been allowed for these subjective criteria may be reduced.[7]

32 Her Honour did not consider that the choice not to cross-examine witnesses in relation to the Cassai incident was sufficient to demonstrate an acceptance of an appropriate level of responsibility for that incident:

At the committal, your then counsel chose not to cross-examine witnesses in relation to the Cassai incident, but only in relation to the offences alleged to have occurred earlier that same night. Your counsel urged me to conclude that this demonstrated remorse, and an acceptance of responsibility for the Cassai incident, as early as the committal. However, as the prosecutor pointed out, you pleaded not guilty to the current offences at the committal; the failure to cross-examine was equally consistent with a tactical decision not to cross-examine on what was the strongest part of the prosecution case.

Whist I do accept that you are now genuinely remorseful for what happened in the Cassai incident, there is no evidentiary basis for me to conclude that your remorse has been long-standing.[8]

33 True it is that at the end of the committal when the applicant entered pleas of not guilty to all charges, the applicant was facing charges which included a charge of Intentionally Causing Injury with respect to the Cassai incident that were ultimately not proceeded with. However, it was open to the applicant to plead to any of the charges including Affray. The fact that he did not, does not indicate, at that stage, an acceptance of responsibility that he was guilty of the charges to which he ultimately pleaded. His plea in respect of the charge of Recklessly Causing Injury, for which he received the base sentence of two years' imprisonment, did not occur until 4 September 2014, approximately six weeks before the trial was due to commence.

34 In the course of argument this morning, counsel for the applicant specifically submitted that independently of these considerations, the email evidence of instructions to the applicant's legal representatives disclosed an intention to plead guilty to the charge of Affray, to which regard should be had pursuant to s 5(2)(e) of the Sentencing Act 1991.

35 I accept counsel for the respondent's submission that that sub-section is concerned with the communication of an intention in the proceeding. The applicant could have indicated a preparedness to plead guilty to the charge on a specific basis at the conclusion of the committal, but he did not. Moreover, in my view, the critical question was addressed by the judge, namely whether she was satisfied or not, on the basis of the evidence as a whole, that the applicant demonstrated remorse and acceptance of responsibility for his offending at an early date. I see no arguable error in her Honour's conclusions in this regard.

36 In the circumstances, it cannot be said that it is arguable that the sentencing judge erred in failing to give sufficient weight to the applicant's offer to plead to the charge of Affray, nor in her treatment of the applicant's election not to cross-examine at committal.

37 Further, when regard is had to the nature and gravity of the offending, there is, in my opinion, no reasonable prospect of a different total effective sentence being imposed by this court in any event.

[1] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610, 613, 623.

[2] R v Wolfe [2008] VSCA 248 [9].

[3] DPP v McCloskey-Sharp [2014] VSC 634 [53] ('Reasons').

[7] [2012] VSCA 140 [69] (citations omitted).