Mendelle v The Queen [2018] VSCA 204

Ground One - The learned sentencing judge denied the Applicant procedural fairness by failing to alert counsel to the possibility that he would find that the Applicant's role in the offending was more serious than that of Mr Brown and thereby warranted a longer sentence.

Ground 2 - The learned sentencing judge erred by failing to apply the principle of totality.

2 The offence, which gave rise to the sentence under challenge, was committed on 11 March 2012. The applicant, accompanied by a co-offender, Michael Brown (sentenced on 3 May 2013 to three years' imprisonment with a non-parole period of two years) entered a 7-Eleven store in Blackburn. The applicant was carrying an imitation firearm.

3 The applicant pointed the firearm at the shop's attendant who initially did not take him seriously. The co-offender then entered the shop, approached the counter, and brandished a serrated knife. At that point, the attendant realised this was no joke. The applicant seized some $250 from the drawer of the cash register, and the two offenders ran from the store.

4 Both men were arrested some three days later, on 14 March 2012. Brown made full admissions and implicated the applicant as the second offender. However, the applicant initially denied any involvement in the crime. He was interviewed again on 20 March 2012 and, having been told that Brown had implicated him, then made full admissions concerning his own involvement.

5 The applicant absconded in breach of his bail conditions. He moved interstate to be with his family. On 7 October 2016 he was arrested on drug charges in South Australia and sentenced to 12 months' imprisonment with a non-parole period of six months. He was extradited to Victoria after serving nearly seven months of his term of imprisonment on that drug charge. In effect, the applicant has been in custody continuously since his initial arrest in October 2016, and his arrival back into Victoria on 26 April 2017.

6 The applicant has a lengthy drug history, going back some years. He has one prior conviction for robbery, albeit an old one, which goes back to 2002. That conviction is nonetheless, significant. He also has a conviction for at least one other offence involving violence, including possession of a weapon. Most of his prior convictions involved summary offences, and many were sustained interstate. The offending in this case was explained, though not excused, by his history of alcohol and drug abuse. He began abusing heroin at around the age of 15, and has had drug problems ever since.

7 During the course of the plea, great weight was placed upon the principle of parity. It was submitted that the applicant should receive the same sentence as did Brown, namely three years' imprisonment with a non-parole period of two years. Initially, during the course of the plea, the sentencing judge indicated from the bench that he could not see any difference between the two offenders, in terms of their respective roles in the commission of the armed robbery. His Honour was asked to take into account by way of totality the seven months that the applicant had served in South Australia. However, he indicated at once that he did not consider that period of imprisonment to be relevant, whether by way of totality or otherwise.

8 During the course of argument, his Honour asked defence counsel whether he would have any argument against the applicant receiving the same sentence as did Brown. Defence counsel indicated that he would have no problem with such a sentence. The prosecutor was then asked the same question, and broadly speaking, although somewhat reluctantly, he agreed. The judge then indicated that he proposed to sentence the applicant to the same term as Brown.

9 It was at that point that defence counsel submitted that Brown's criminal history was worse than that of the applicant. He pointed out that Brown had served at least one significant term of imprisonment. On the other hand, Brown had an acquired brain injury which brought him more squarely within the principles of Verdins.[1] Reflecting further upon the matter, and having viewed the CCTV footage of the robbery, his Honour said that the applicant 'might have to wear an extra three months on the totality, I think'. It seems that no one voiced any great concern at that particular statement by his Honour.

10 Ultimately, as has been seen, the applicant received a sentence that was not three months longer than that of Brown as his Honour had foreshadowed, but in fact six months longer. Moreover, in his sentencing remarks, the judge stated, for the first time, that having viewed the CCTV footage of the robbery again (the judge having previously sentenced Brown in 2013) he considered that the applicant had played the 'leading role and more aggressive role' and was therefore deserving of greater punishment.

11 Before this Court counsel for the applicant submitted that his Honour's departure from his earlier sentencing indication, even though that earlier statement had been tentatively expressed, constituted a failure to accord procedural fairness. A sentencing judge having indicated that he would impose a sentence of three years' imprisonment, with a non-parole period of two years (later adjusted to three years and three months' imprisonment) and having also indicated that the objective gravity of each offender's conduct was about the same, was not entitled to depart from that position without giving counsel for the applicant an opportunity to be heard.

12 Moreover, it was submitted that the judge had erred in failing to take into account the seven months or so that the applicant had served in South Australia, under the rubric of totality. Counsel referred to Morgan v The Queen,[2] which is squarely in point, but was not cited to the sentencing judge.

13 Counsel for the respondent, in his written submissions acknowledged that both these grounds were made good. There had been a denial of procedural fairness, and the judge had erred in failing to give any credit for the seven months served in South Australia. Nonetheless, it was submitted that the sentence imposed upon the applicant had been lenient, and that no different sentence should be imposed.

14 In addition, it was said by the respondent that parity did not require any adjustment of the applicant's sentence. There were matters that Brown was entitled to call in aid which were not available as mitigation to the applicant. For example, Brown had confessed his involvement right at the outset, and implicated the applicant. Had he not done so, the applicant may not have pleaded guilty to this charge. That of itself entitled Brown to some measure of leniency. In addition, Brown had available to him a reasonable discount based on Verdins, not something which the applicant could rely upon.

15 In our view, the respondent's submissions should be accepted. The applicant seeks leave to appeal against his sentence. He has no right of appeal as such.

16 Pursuant to s 280(1) of the Criminal Procedure Act 2009 this Court may refuse an application for leave to appeal under s 278 in relation to any ground of appeal if:

(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed, or

(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence, despite there being an error in the sentence first imposed.

17 Having regard to the objective gravity of this offending, and the applicant's previous criminal history, there is no reason why his sentence should now be reduced from three years and six months to one of three years and three months. Still less is there any reason why a sentence of three years or less should now be imposed.

18 We were greatly assisted by the helpful submissions made to the Court by counsel for the applicant during the course of oral argument this morning. Nonetheless, for the reasons set out above, we consider that leave to appeal should be refused.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] [2013] VSCA 33; (2013) 40 VR 32.