Middleton & Ors v The Queen [2018] VSCA 23

1 On 17 November 2016, Shane Middleton was sentenced by his Honour Judge Stuart, in the County Court at Melbourne as follows ('the 2016 sentence'):

Traffick in a commercial quantity of a drug of dependence (MDMA)

[s 71AA Drugs, Poisons and Controlled Substances Act 1981]

Store firearm in an unsecure manner whilst unlicensed

Possession of an unregistered handgun [s 7B(1) Firearms Act 1966]

[s 88 Crimes Act 1958]

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

7 years' imprisonment with a non-parole period of 5 years

2 The 2016 sentence is not the subject of the proceedings before this Court. That sentence is, however, an integral aspect of the application brought by Shane Middleton, to which reference will next be made.

3 On 3 April 2017, Shane Middleton pleaded guilty before Judge Stuart to two charges, entirely unrelated to the 2016 sentence, one of armed robbery, and one of attempting to pervert the course of justice.

4 On 28 June 2017 Shane Middleton was further sentenced as follows ('the 2017 sentence'):

Armed Robbery [s 75A Crimes Act 1958]

Attempt to Pervert the Course of Justice [common law]

6 years' imprisonment (charge 1) and 5 ½ years' imprisonment (charge 2 )

5 Also on 3 April 2017, Shane Middleton's older brother, Simon Middleton, Shane Middleton's partner Renee Comeadow, and Angelo Anagnostou each pleaded guilty to one charge of having attempted to pervert the course of justice.

6 These charges of having attempted to pervert the course of justice all arose out of the combined efforts of the applicants to dissuade a critical prosecution witness from giving evidence against Shane Middleton regarding his involvement in the armed robbery.

7 Simon Middleton and Ms Comeadow were also sentenced on 28 June 2017, to terms of three years' imprisonment with non-parole periods of two years.[1] Mr Anagnostou, whose criminal history was substantial, was sentenced to three years and six months' imprisonment with a non-parole period of two years and six months. Each applicant now seeks leave to appeal against sentence.

8 Shane Middleton proposes to rely upon the following two grounds of appeal (with grounds 1(a) and 3 having been formally abandoned):

GROUND 1

It is submitted that:

...

(b) The order for cumulation of 2 years and 6 months imprisonment from charge 1 on an existing state sentence of 5 years is manifestly excessive.

(c) The individual sentences of 4 years' imprisonment imposed on charge 2 is manifestly excessive;

(d) The order for cumulation of 2 years and 6 months imprisonment from charge 2 on an existing state sentence of 5 years is manifestly excessive.

(e) The total effective sentence of 10 years' imprisonment is manifestly excessive; and

(f) The non-parole period of 8 years is manifestly excessive.

GROUND 2

It is submitted that the learned trial judge erred in setting a non-parole period which is 80% of the head sentence, and failed to give reasons for doing so.

...

9 Simon Middleton proposes to rely upon the following two grounds of appeal:

1. The sentence imposed on the applicant offended the principle of parity when compared to the sentence imposed on his co-offender Renee Comeadow; and

10 Mr Anagnostou proposes to rely on one ground of appeal only:

1. That the sentence imposed is manifestly excessive.

11 Finally, Ms Comeadow proposes to rely on the following two grounds of appeal:

1. The sentence imposed on the charge of attempting to pervert the course of justice (3 years' imprisonment) and the non-parole period fixed (2 years' imprisonment) are manifestly excessive.

Particulars:

(a) The sentences imposed are manifestly too long.

(b) The wrong type of sentence was imposed.

(c) The sentences imposed reflect a breach of the principle of parsimony.

1. The sentencing judge erred in his assessment of the gravity of the applicant's offending.

Particulars:

(a) His Honour gave too much weight (in aggravation) to: (i) the fact that the offending involved four co-offenders; (ii) the charge period; and (iii) the maximum penalty.

(b) His Honour erred, having given too much weight to those considerations, by concluding that this was 'a particularly grave example of [the offence] by almost any yardstick save actual physical violence'.

12 On 21 July 2015, Harry Galousis, became aware that a friend named Luke owed Shane Middleton a sum of money. On the following day, Mr Galousis withdrew $300 in cash and visited Luke at his home. He offered to lend Luke the money so that he could repay his debt. For whatever reason, Luke declined the offer.

13 While at Luke's home, Mr Galousis' lent Luke his phone so that he could contact Ellie Kellett, one of Luke's friends. Later that evening, Mr Galousis purchased a small quantity of methamphetamine (ice) for his personal use. He drove to a park in Clayton South and telephoned Ms Kellett to see if she would like to share it with him. She agreed, and he waited at the park for her to arrive. Mr Galousis had no idea that Ms Kellett would not be coming alone, but would be accompanied by Shane Middleton.

14 Ms Kellett and Shane Middleton arrived at the park at about 10.55 pm. Mr Middleton walked up to Mr Galousis' car, reached through the window and snatched the keys from the ignition. He raised his jumper, exposing a silver handgun concealed inside the front of his pants. He drew the gun, pointed it at Mr Galousis' head and ordered him to 'get the fuck out of the car'. Mr Galousis did as he was told, and asked what was happening. Mr Middleton struck him to the face with his open palm and said 'I'm fucking robbing you, dickhead'. He also said 'If you try to run, I'll pop ya'.

15 Mr Middleton then proceeded to search the vehicle. He took from it a Samsung Galaxy mobile phone, two iPhones, the small quantity of ice which Mr Galousis had brought with him to the park, Mr Galousis' wallet and a toolbox.

16 Gesturing towards his gun, Mr Middleton then ordered Mr Galousis to get inside the boot of the vehicle. Once inside the boot, he told Mr Galousis that he had 'one minute to escape' as he intended to set fire to the car. Mr Middleton and Ms Kellett then drove away. Mr Galousis managed to escape by kicking through the back seat. He contacted police and they attended the scene.

17 The following day, it became apparent to Mr Galousis that the man to whom Luke owed money, Shane Middleton, was the man who had robbed him. Mr Galousis was concerned for the safety of his family and himself. He therefore declined, at that stage, to make an official statement to police.

18 On 2 November 2015, police executed a search warrant at Mr Middleton's property in connection with an unrelated matter. They located a number of personal items belonging to Mr Galousis, as well as a silver handgun and a number of rounds of ammunition. Mr Middleton was remanded in custody on that day and, apart from a short period during which he was on bail, has remained in custody ever since.

19 On 13 November 2015, Mr Galousis provided a formal statement to police in relation to the armed robbery. In that statement, he identified Shane Middleton as the offender.

Summary of facts - attempt to pervert the course of justice

20 Between 1 December 2015 and 3 May 2016, Shane Middleton, whilst remanded in custody, had a series of telephone discussions with Ms Comeadow and his brother Simon. In the course of those discussions, he prevailed upon them to have someone approach Mr Galousis with a view to persuading him to retract his statement to police.

21 Throughout that period, police monitored a total of 47 phone calls which involved discussions concerning the approach that was to made to Mr Galousis. Most of these calls were between Shane Middleton and Ms Comeadow, but there were also several between Shane Middleton and his brother Simon.

22 On 20 December 2015, Simon Middleton, acting at his brother's behest, contacted Mr Anagnostou and arranged a meeting. He informed Mr Anagnostou of Mr Galousis' statement to police and asked him to approach Mr Galousis in order to persuade him to retract it.

23 It was clear from the monitored calls made by Shane Middleton from prison that he was anxious to be kept fully informed as to what was happening regarding the approach to be made to Mr Galousis. According to Ms Comeadow, Simon Middleton was ignoring her attempts to contact him at that time.

24 On 7 January 2016, Ms Comeadow offered to speak to Mr Anagnostou directly. Both she and Simon Middleton continued thereafter to assure Shane Middleton that efforts were being made to have Mr Anagnostou approach Mr Galousis.

25 On 20 February 2016, Mr Anagnostou happened to be driving through an industrial area when he pulled up outside the very factory where Mr Galousis was employed. Mr Anagnostou recognised Mr Galousis as he walked past his vehicle. He called Mr Galousis over and spoke to him from inside his car.

26 Mr Anagnostou told Mr Galousis to withdraw the statement that he had made to police implicating Shane Middleton. He repeatedly requested Mr Galousis' phone number and said to him, 'Shane's not happy you know, he's locked up. He has sent me to fix this'. He offered Mr Galousis up to $5,000 to retract his statement to police and told him that he would contact him again soon.

27 On 21 February 2016, and again on 6 March 2016, Mr Anagnostou attempted to contact Mr Galousis on the phone number that had been provided to him. The calls were not answered.

28 On 3 May 2016, Mr Anagnostou was arrested. He made full admissions regarding his approach to Mr Galousis. He also provided a detailed statement to police.

29 Shane Middleton was aged 27 at the time of sentencing. He had endured a number of difficulties in his early years, and in the period immediately leading up to the commission of the armed robbery. Some years earlier, his mother had been diagnosed with cancer and had undergone months of intensive treatment. Fortunately, she survived. At about the same time, his father had suffered a stroke.

30 Thereafter, a good friend of both Shane and Simon Middleton named Cory had been stabbed to death at a gathering in Clayton. The catalyst for the stabbing had been a confrontation between the brothers. Both felt responsible for Cory's death.

31 It was at about that time that Shane Middleton first became involved in the activities of the Mongols motorcycle club. He eventually rose to a senior position within what is generally described as that 'outlaw motorcycle gang'.

32 Shane Middleton relied, on his plea, upon the evidence of a psychologist, Lisa Jackson. She stated that up until about the age of 18, he appeared to satisfy a diagnosis of 'oppositional defiance disorder', with what she terms a 'co-occurring conduct disorder'. She stated that his adult history suggested that his symptoms had progressed to exhibit features of an 'anti-social personality disorder', 'a mood disorder' and post-traumatic stress disorder. She attributed his later difficulties, in large part, to his having felt responsible for the death of his friend, Cory.

33 It was noted on the plea, that Shane Middleton suffered from a 'substance abuse disorder', and that he had twice attempted to commit suicide.

34 In relation to the armed robbery, it was submitted that Shane Middleton's conduct, after the actual commission of the robbery itself, namely his having locked Mr Galousis in the boot of the car, and having threatened to set fire to it, should not be regarded as in any way relevant to the sentencing process.

35 In addition, counsel noted that a number of aggravating features commonly present in serious cases of armed robbery were not present on this occasion. For example, there was little or no planning involved, and no attempt at disguise. That said, it was not contended before this Court that the sentence of four years and six months' imprisonment on the charge of armed robbery was itself excessive, that ground having been formally abandoned at the commencement of this hearing.

36 In relation to the charge of having attempted to pervert the course of justice, it was submitted that although there had been a good deal of discursive discussion between Shane Middleton, Ms Comeadow and Simon Middleton regarding what needed to be done in relation to Mr Galousis, much of it had been unproductive, and it had not led anywhere. When Mr Anagnostou finally met with Mr Galousis, it was 'by chance', and resulted only in a somewhat desultory offer being made.

37 It was also noted that Shane Middleton's prior criminal history had been largely confined to Children's Court matters, save for those offences that gave rise to the 2016 sentence.

38 In response, the Crown submitted that all of the circumstances surrounding the commission of the armed robbery, including the confinement of Mr Galousis in the boot of his car, should be taken into account in assessing the overall gravity of this offence. The armed robbery was a serious example of an always serious offence, having regard to the applicant's use of a firearm, which he had pointed at the victim.

39 The Crown described the applicant's offending in relation to the attempt to pervert the course of justice as both active and persistent. It noted in particular that Shane Middleton was to be the ultimate beneficiary if Mr Galousis' statement were withdrawn. The effect of that could well have been to leave the prosecution bereft of any case against him. That of itself, made this offence one of very considerable seriousness.

40 Turning then to Simon Middleton, he was aged 30 when he came to be sentenced. He was a qualified carpenter, having completed an apprenticeship in 2005. His counsel relied on his previous good character, and his solid employment history, as matters of mitigation. He also drew the Court's attention to the impact upon him of the death of his friend Cory.

41 It was submitted that Simon Middleton's business had failed during the period of the offending. In addition, a three year relationship had broken down. This resulted in him having moved back into his parents' home. It was said that he had been abusing prescription medication and alcohol at this time.

42 It was submitted that Simon Middleton had not been directly involved in the planning of the attempt to pervert the course of justice. Rather, he had only been marginally involved in its implementation. His role was to act as an intermediary, or messenger, on behalf of his brother. He was simply to pass on to Mr Anagnostou his brother's request that Mr Galousis be approached, and offered money to retract his statement.

43 It was said to be evident, through Shane Middleton's obvious frustration, that Simon was not taking a sufficiently active role in carrying out his brother's wishes. It was submitted that Simon Middleton's involvement should be regarded as 'low level', and in any event, of limited duration. It was noted that the eventual approach by Mr Anagnostou had been in the form of an 'inducement' rather than a 'threat', thereby lessening the objective gravity of the offence.

44 With regard to Simon Middleton's prospects of rehabilitation, it was submitted that there had been a marked improvement in his circumstances since being granted bail in November 2016. He had not incurred any further charges. He was living with his parents, and was in a new relationship. He had also stopped abusing drugs and alcohol, and had started a new business.

45 In response the Crown submitted that this particular attempt to pervert the course of justice had to be viewed as very serious indeed. It emphasised the need for general deterrence, despite this applicant's previous good character and his good prospects of rehabilitation.

46 Dealing next with Ms Comeadow, she was 28 years old at the time of sentencing. Together with Shane Middleton, she had a three year old daughter. While he was incarcerated on the charge of armed robbery (and other matters), Ms Comeadow continued to care for their daughter. She also undertook studies in community service, and youth work.

47 By way of mitigation, counsel for Ms Comeadow relied on her plea of guilty, entered at an early stage, as well as her previous good character. It was submitted that she had a strong skill set and excellent work history. Prior to the birth of her daughter, she had worked as a bank teller, and also as a bar manager.

48 In relation to the attempt to pervert the course of justice, it was submitted that her involvement, though unquestionably important, had been motivated by her loyalty and commitment to her partner Shane Middleton. That explained, though it did not justify, why she had done what she did.

49 The Crown submitted that Ms Comeadow's role in the offending had been 'active' and 'persistent'. It submitted that she had effectively acted as a conduit between Shane Middleton and the other co-offenders. The extent of her involvement was said to be evidenced through the large number of phone calls that she took part in with her partner, Shane.

50 Finally, Mr Anagnostou was 34 years old at the time of sentencing. He had, at one stage, worked in the car maintenance field. However, from the time he was incarcerated in 2007, he had not found regular employment. Since early 2017, he had been helping to maintain his family's house-painting business, after his father sustained serious injuries as a result of a fall.

51 Unlike his co-offenders, Mr Anagnostou had a lengthy criminal record. This included convictions for offences of violence, and possession of controlled weapons. Counsel for Mr Anagnostou submitted that approximately 10 years ago, his client had been diagnosed with bi-polar disorder, anxiety and depression. He tendered a report by Carla Lechner, a psychologist, who stated that the applicant's mental health had been extremely unstable at the time of the offending. This was said to have resulted from issues in relation to the custody and care of his young daughter (whom he had recently discovered was not his biological child).

52 Mr Anagnostou had been prescribed Lithium for his bi-polar condition. However, he had stopped taking that drug due to its side effects. He had attempted to self-medicate with cannabis, and had also used ice. His history of drug use went back to when he was 15 years of age.

53 Whilst in custody, and on remand for these matters, Mr Anagnostou was not provided with his medication. He engaged in self-harm, resulting in his placement in psychiatric facilities. It was submitted that limbs 1, 2, 4, 5 and 6 of R v Verdins[2] applied in his case.

54 In relation to the attempt to pervert the course of justice, it was acknowledged that viewed objectively, it was a serious offence. However, it was submitted that Mr Anagnostou's involvement was at the 'lower end'. Counsel argued that the fact that the approach to Mr Galousis was 'by chance', that no further attempts were made to contact him after various unsuccessful phone calls, and that there was no evidence of any benefit to be gained by this applicant, mitigated his involvement in this offence. Counsel also relied on the lack of any actual or threatened violence in the approach made to Mr Galousis which, he submitted, lessened the objective gravity of the offence.

55 It was noted that Mr Anagnostou had not reoffended from the time of his arrest for this offence, and that he had complied fully with his bail conditions.

56 In response, the Crown reiterated its submission regarding the seriousness of the matter, and emphasised again the importance of general deterrence as a key sentencing factor.

57 With regard to Shane Middleton, in relation to the charge of armed robbery, the judge noted in his sentencing remarks that his conduct constituted a particularly serious example of that offence. His Honour considered general deterrence to be a primary factor in sentencing, along with just punishment and denunciation.

58 In relation to the charge of having attempted to pervert the course of justice, the judge considered the number of people involved in, and the duration of, the offending. He also took into account the seriousness of the charge of armed robbery, the eventual approach to Mr Galousis, and the offer of $5,000 to retract his statement made to police, as indicating how serious this offence happened to be.

59 His Honour noted that the fact that Parliament had set a maximum penalty of 25 years' imprisonment for attempt to pervert the course of justice spoke volumes as to just how grave an offence this was considered to be. As to the moral culpability associated with this particular variant of that offence, he observed that it should be viewed as a particularly serious example, 'by almost any yardstick save actual physical violence'.[3]

60 The judge found that Shane Middleton's prospects of rehabilitation were 'guarded'. It should be recalled that when the his Honour had earlier sentenced Shane Middleton in 2016, he had found his prospects of rehabilitation to be 'reasonable'.[4]

61 With regard to Simon Middleton's involvement in the attempt to pervert the course of justice, the judge indicated that it was sufficient for an offender to be aware of the general nature of the alleged offending which was sought to be avoided, without necessarily having detailed knowledge of every aspect of it. Simon Middleton clearly had sufficient knowledge of the nature of the armed robbery to fix him with moral culpability for the attempt to pervert the course of justice.

62 His Honour found that Simon Middleton engaged in that attempt, having armed Mr Anagnostou with the information that he required in order to make the relevant approach to Mr Galousis. He considered that Simon Middleton 'played an essential role' in the attempt to pervert the course of justice. His prospects of rehabilitation were, nonetheless, assessed as 'good'.

63 The judge noted that the charge against Ms Comeadow involved conduct that took place whilst she was on bail. That resulted in a separate charge being brought against her. Unlike her co-offenders, the judge considered her prospects of rehabilitation to be 'excellent'. He did so in light of her background and strong indications of remorse. He noted, however, that:

Of all who were involved in [the attempt to pervert the course of justice], other than Shane Middleton, you perhaps knew most of what was going on. You were in it from beginning to the end.[5]

64 With regard to Mr Anagnostou, the judge described his role in the attempt to pervert the course of justice as 'discrete', but 'essential'. He considered Mr Anagnostou's extensive criminal record to demonstrate a long-standing disregard for the law. Between 2000 and 2013, he had been before the court on no fewer than 14 occasions in relation to 82 separate charges. A number of these offences were very serious. He had convictions for offences of violence, and several for possession of controlled weapons. He also had a number convictions for drug trafficking, and for offences of dishonesty.

65 His Honour acknowledged Mr Anagnostou's diagnosis of clinical depression. He was not satisfied, however, that this condition was so serious as to render imprisonment more burdensome for him than it would be for a normal healthy prisoner. Thus, Verdins principles 5 and 6 did not apply. Nor, in his Honour's view, did the other Verdins principles, since there was nothing to suggest that Mr Anagnostou's depression had in any way been causally connected to his involvement in this offence.

66 The judge, in his overall assessment of the gravity of the attempt to pervert the course of justice, considered what had been said by Kyrou JA (with whom Redlich JA agreed), in Director of Public Prosecutions v Oksuz:[6]

The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence - or truthful evidence - in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown's ability to secure a conviction against an accused person and thus bring him or her to justice.

...

As the Crown pointed out, individual sentences of between two and four years have regularly been imposed for the offence of attempting to pervert the course of justice.[7]

67 It was submitted on behalf of Shane Middleton that the combination of the individual sentences imposed, the orders for cumulation, the total effective sentence and the non-parole period had resulted in a sentence that was wholly outside the range of sentencing options available to the judge below.

68 In relation to the attempt to pervert the course of justice, it was submitted that the sentence of four years' imprisonment was 'entirely inconsistent with current sentencing practices' for that offence.[8]

69 Specifically, in relation ground two, it was submitted that a non-parole period of eight years, fixed in relation to a total effective sentence of 10 years' imprisonment, did not fall within a 'common proportional range', and invited close scrutiny.

70 In support of ground two, counsel relied on Gray v The Queen.[9] In that case, Nettle JA (with whom Tate JA agreed), observed that a non-parole period constituting 75 per cent of a total effective sentence might well be appropriate in the 'wost category of case'. It was suggested that, at least by implication, his Honour was of the view that outside that category, 75 per cent might be too much.[10]

71 Thus, it was put on behalf of the applicant that, in circumstances such as the present, where the offending plainly was not in the 'worst category', a non-parole period of 80 per cent was at least suggestive of sentencing error.

72 Central to the applicant's argument, in support of this ground, was the sentencing judge's failure to explain why, in this case, he considered a non-parole period of eight years on a head sentence of 10 years to be warranted. The applicant relied on Diver v The Queen,[11] where Ashley JA (with whom Neave and Weinberg JJA agreed) stated:

It is true that there is no 'normal or usual' period of parole. Even so, this Court has, on occasion been prepared to conclude that a non-parole period is proportionately so great - and in that sense 'unusual' - as to indicate, particularly in the absence of judicial explanation, that something went wrong in the sentencing exercise.[12]

73 In response the Crown submitted that Shane Middleton's conduct, in instigating the attempt to have Mr Galousis retract his statement, constituted a particularly grave example of attempting to pervert the course of justice. Despite the fact that the victim had not been threatened with physical harm, the Crown pointed to the background circumstances of the armed robbery, which it described as 'extremely violent'. It submitted that this must be viewed as part of the context within which the approach to Mr Galousis was made.

74 The Crown further submitted that the sentence of four years' imprisonment on charge two sat comfortably within current sentencing practices for this offence. It submitted that there were many and varied circumstances surrounding offences of this kind, and that a sentencing judge had a broad discretion in dealing with the particular facts of the case. It noted that sentences typically imposed for this offence ranged from a few months' imprisonment (or less) to three or four years' imprisonment.[13]

75 It noted further that there was one instance, arising out of the assistance provided to Tony Mokbel to escape Australia, of sentences of 12 years, 11 years and eight years' imprisonment having been imposed for this offence.[14] However, the Court in that case made it clear that the circumstances were unique, and the offending extraordinarily egregious. It recognised that the sentences that had been imposed vastly exceeded any sentence previously given in this State for attempting to pervert the course of justice.[15] It also noted that the maximum penalty for attempting to pervert the course of justice under Commonwealth law was only five years' imprisonment,[16] as distinct from the 25 years specified by s 320 of the Crimes Act 1958 for the State offence.

76 The Crown also argued that the orders for cumulation in the 2017 sentence (whereby a further five years were added to the 2016 sentence), could not be regarded as manifestly excessive. Nor could it be said to be contrary to principle to cumulate two years and six months of the four years imposed for attempting to pervert the course of justice on the 2016 sentence.

77 In relation to the non-parole period of eight years, the Crown submitted that it could not be characterised as 'unreasonable' or 'plainly unjust', in accordance with the principles in House v The King.[17] It relied upon the following propositions in support of its response to Shane Middleton's second ground of appeal:

(a) where a total effective sentence increases, the non-parole period may become a larger proportion of such a term to avoid an offender becoming subject to an inordinate parole period;

(b) this applicant's prospects of rehabilitation were not good, but were rather described merely as 'guarded'; and

(c) it may no longer be appropriate to speak of a 'usual' or 'normal' non-parole period.[18]

78 It should be noted that the Crown, very fairly, drew attention to a serious error in the calculation of the applicant's non-parole period arising out of the combination of the 2016 and 2017 sentences. This would have the effect of requiring him to serve a substantially longer period before being eligible for parole than the judge below had intended. Although this matter did not fall squarely within the applicant's complaint under ground two, as formulated in the Written Case, we heard full argument on the matter. We shall return to consider it later in these reasons for judgment.

79 In relation to Simon Middleton's first ground of appeal, his complaint of lack of appropriate parity with Ms Comeadow, it was submitted that there was no justification for his having received the same sentence as did she. It was said that her culpability in relation to the attempt to pervert the course of justice was significantly greater than his. Both applicants had pleaded guilty at an early stage, both were found to have positive prospects of rehabilitation, and neither had any relevant criminal history.

80 In contrast to Simon Middleton, however, the judge below found that Ms Comeadow had a greater degree of involvement in the commission of this offence. She had known, in far more detail than he, precisely what was going on. Moreover, she had been 'in it from beginning to the end', whereas he had played a much lesser role. He had also been involved for a significantly shorter period.

81 In support of Simon Middleton's second ground of appeal, that of manifest excess, his counsel relied on the fact that his conduct consisted merely of an approach to Mr Anagnostou, at the behest of his brother. The actual attempt to pervert the course of justice (as distinct from the broad ranging and inconclusive discussions that led up to that attempt), involved Mr Anagnostou meeting Mr Galousis 'by chance'. Moreover, the approach that was made consisted only of a short conversation, and an offer of money. There was no threat of violence, or actual force.

82 In its response, the Crown submitted that Simon Middleton's conduct was in fact more culpable than that of Ms Comeadow. It was he who approached Mr Anagnostou, and gave him the message, asking him to approach Mr Galousis. The Crown conceded, however, that apart from that difference, much of what could be said in favour of Ms Comeadow, could also be said in favour of Simon Middleton.

83 In relation to the ground of manifest excess, the Crown submitted that Simon Middleton had played an integral role in the commission of the offence. It cited a number of cases with respect to current sentencing practice for attempting to pervert the course of justice.[19] It submitted that a sentence of three years' imprisonment, with a non-parole period of two years, was not wholly outside the range for offending of this gravity.

84 It was submitted in oral argument that Ms Comeadow had been dealt with harshly, having regard to the circumstances surrounding the commission of the offence. It was submitted that she did not play a major role in facilitating the offer made to Mr Galousis.

85 It was further submitted that she had powerful mitigating factors that could be called in her aid. These included her lack of any relevant prior convictions, and the extremely positive findings made by the sentencing judge regarding her prospects for rehabilitation. These were described by his Honour as 'excellent'.

86 The Crown submitted that Ms Comeadow had been involved in the scheme, almost from the very outset, and had continued her involvement throughout the entire period of its development and implementation. It submitted that she exhibited no reluctance to become involved, even though she knew perfectly well the seriousness of the offence with which Shane Middleton had been charged.

87 Finally, the Crown submitted that the judge, in his sentencing remarks, had referred specifically to all of the mitigating factors present in her case. These included her personal circumstances and, in particular, the fact that she was the mother of a very young child.

88 Counsel who appeared for Mr Anagnostou recognised that his client, alone among the various participants in this offence, faced the very considerable difficulty of having an extraordinarily lengthy criminal record. He had been given a number of chances in the past, but had never taken advantage of them.

89 Mr Anagnostou also faced the difficulty of having been at the 'cutting edge' of the commission of this offence. It was he who actually made the approach to Mr Galousis that constituted the actus reus of the attempt to pervert the course of justice.

90 Nonetheless, it was submitted that the sentencing judge had mischaracterised the gravity of this particular offence. It was noted that, on the evidence accepted by his Honour, the actual approach by Mr Anagnostou to Mr Galousis had occurred purely 'by chance', rather than as a result of careful planning, and that this reduced its objective gravity.

91 Finally, it was noted that there were subjective factors relating to Mr Anagnostou's mental state that, while perhaps falling short of Verdins, nonetheless should be regarded as justifying some measure of leniency.

92 The Crown submitted that the sentence imposed upon Mr Anagnostou was well within range, having regard to the role that he played in the commission of this offence, and his appalling criminal record.

93 Dealing first with Shane Middleton, we are of the view that there is no substance to his complaint that the sentence of four years' imprisonment on the charge of having attempted to pervert the course of justice, was manifestly excessive. He was the instigator of that offence, and he pursued it vigorously over a number of months. In his desperation to avoid being held to account for the armed robbery that he had committed, he put severe pressure on Ms Comeadow, and on his brother, to find a way to persuade Mr Galousis to resile from his statement to police. His moral culpability had to be regarded as great.

94 Nor can it be said that the orders for cumulation, both as between the 2016 and 2017 sentences, and as between the sentences for armed robbery and attempting to pervert the course of justice, were in any way inappropriate. Indeed, if one were to view the sentence for these latter two offences in isolation, a total of five years' imprisonment for a very bad armed robbery, coupled with a most serious attempt to pervert the course of justice, would have to be regarded as well within range.

95 A problem arises, however, in relation to ground two. Once the 2017 sentences were imposed, and orders for cumulation made with regard to the 2016 sentences, s 14(1) of the Sentencing Act 1991 required the fixing of a new single non-parole period in respect of all of the sentences that the applicant was to serve or complete. The sentencing judge did exactly that, and fixed a new single non-parole period of eight years. That was 80 per cent of the new total effective sentence, resulting from the combination of the 2016 and 2017 sentences.

96 The figure of 80 per cent is undoubtedly somewhat unusual, and might be viewed as high, though not necessarily appealably so.[20] It must be remembered that Shane Middleton had, only some months earlier, been viewed by the same judge as having 'reasonable' prospects of rehabilitation. However, there was a change in his situation between the 2016 and 2017 sentencing processes. He was no longer, in relation to the 2017 sentencing exercise, to be viewed in the same light as he had been in relation to 2016 exercise.

97 By the time he came to be sentenced for the armed robbery and attempt to pervert the course of justice, Shane Middleton's prospects of rehabilitation had declined. They were no longer, in his Honour's view, 'reasonable', but were now simply 'guarded'. That change, of itself, would justify a different relationship between the new total effective sentence and the new single non-parole period that had to be fixed.

98 The question is whether a change from 'reasonable' to 'guarded' prospects of rehabilitation, of itself, warranted a shift from the original 60 per cent ratio between the total effective sentence of five years' imprisonment with a non-parole period of three years to an 80 per cent ratio between the total effective sentence of 10 years' imprisonment with a new single non-parole period of eight years.

99 Another way of considering this matter is to note that the effect of the 2017 sentence was to add five years to the five year sentence imposed in 2016, making a total of 10 years' imprisonment. That was not, in itself, problematic. However, the new single non-parole period of eight years had the effect of adding five years to the non-parole period previously fixed.

100 In one sense, Shane Middleton might be said to have received a sentence of five years' imprisonment as a head sentence for the armed robbery and attempt to pervert the course of justice, with a non-parole period of five years for those same two offences. In other words, five years was added to each component of the 2016 sentence, effectively a head sentence of five years with a non-parole period of five years.

101 At the very least, this was a somewhat surprising outcome. Indeed, senior counsel who appeared for the Crown on this application, very fairly acknowledged that he had never come across a combined sentence so structured. He also acknowledged that he found it difficult to justify that outcome.

102 The sentencing judge was faced with a most difficult sentencing task in this particular case. That was so, not just in relation to Shane Middleton, bearing in mind the need to fix a new single non-parole period in respect of two quite separate episodes of offending, but also to have regard to complex issues of parity regarding a number of offenders who played quite disparate roles in the attempt to pervert the course of justice, and came before the Court with very different personal backgrounds.

103 His Honour discharged his sentencing task with care and skill. We are constrained, however, to conclude that when he came to fix the new single non-parole period with regard to Shane Middleton, he may have lost sight of the need to ensure that this new non-parole period adequately reflected both the 2016 and 2017 sentences, and the findings as to prospects of rehabilitation separately made in both matters.

104 In our respectful opinion, the applicant should not have lost the entire benefit of the finding made in relation to the 2016 sentence that, at that time, his non-parole period should be about 60 per cent of the total effective sentence. The shift from a standard 60 per cent to a most unusual 80 per cent appears to us to have been too great. Moreover, it must be said, that this shift was inadequately explained.

105 We would accordingly grant leave to appeal to Shane Middleton on ground two, and allow his appeal on that basis. We would set aside the new single non-parole period of eight years fixed by his Honour, and substitute a new single non-parole period of seven years. We would otherwise affirm all individual sentences and other orders made in relation to Shane Middleton.

106 With regard to Simon Middleton, we consider that his sentence of three years' imprisonment, with a non-parole period of two years, was not merely stern, but outside the range reasonably available to the sentencing judge. That is so, having regard to his level of involvement, and matters personal to him. We also consider that his parity complaint regarding his having received the same sentence as Ms Comeadow, has substance. He should have received a somewhat lesser sentence than she did.

107 In our view, his Honour failed to give adequate weight to the very limited role Simon Middleton played in this particular criminal enterprise. Plainly, he came into the matter much later than both Shane Middleton and Ms Comeadow. He was obviously reluctant to become involved, and had to be constantly pressured to speak to Mr Anagnostou, about approaching Mr Galousis. After he spoke to Mr Anagnostou, he did little or nothing to further the scheme.

108 Not only did Simon Middleton play a limited role in this attempt to pervert the course of justice, but he was entitled to call in aid his prior good character, and the judge's positive assessment of his prospects of rehabilitation.

109 In these circumstances, a sentence of three years' imprisonment with a non-parole period of two years seems to us to have been excessive. We would grant Simon Middleton leave to appeal, and order that his appeal be allowed. We would set aside that sentence, and substitute a sentence of two years' imprisonment, with a non-parole period of 15 months.

110 Turning then to Ms Comeadow, her sentence of three years' imprisonment, with a non-parole period of two years, also strikes us as being excessive. She was entitled to rely upon powerful personal factors. These included the judge's finding that her prospects of rehabilitation were 'excellent'.

111 We are also mindful of the pressure that she would have been under from Shane Middleton to assist him, given his desperation to avoid conviction for the armed robbery. Despite her seeming enthusiasm for the scheme, as shown in her recorded conversations with her partner, her actual role in the attempt to pervert the course of justice consisted largely of talk, and very little action.

112 In the case of Ms Comeadow, we would grant her leave to appeal and order that the appeal be allowed. We would set aside the three year sentence imposed upon her and substitute a sentence of two years and three months' imprisonment. We would fix a non-parole period of 18 months.

113 Finally, we turn to Mr Anagnostou. His case falls into an entirely different category to those of Simon Middleton and Ms Comeadow. His criminal record is, as we have said, simply appalling. He was the central figure in the actual approach made to Mr Galousis. The fact that his offer to Mr Galousis is said to have occurred 'by chance', rather than as a result of planning, seems to us to be of marginal significance as a mitigating factor.

114 Mr Anagnostou's sentence was, in our view, well merited. His conduct warranted significantly greater punishment than that of either Simon Middleton, or Ms Comeadow. He is entitled, of course, to receive a lesser sentence than Shane Middleton who was, after all, the instigator of the entire plan, and drove it from beginning to end. However, because of his criminal history, his sentence of three years and six months' imprisonment seems to us to have been entirely appropriate. Accordingly in his case, we would refuse leave to appeal.

115 We are, of course, conscious of the fact that by reducing the non-parole period fixed for Shane Middleton, and reducing the sentences upon Simon Middleton and Ms Comeadow, we must be careful not to create undue and unfair disparity between Mr Anagnostou's sentence and the sentences of his co-offenders. We are satisfied that the changes to the sentences imposed upon his co-offenders, as a result of this proceeding, do not leave Mr Anagnostou with any legitimate sense of grievance.

116 We said, at [78] of these reasons for judgment, that there was a problem with the calculation of Shane Middleton's non-parole period, as fixed by the trial judge. The point was picked up by senior counsel for the Crown who drew it to our attention.

117 In a sense, because we are proposing in any event to allow Shane Middleton's appeal on ground two, and therefore to substitute a new single non-parole period of seven years, it is unnecessary to set out, in all of its elaborate and confusing detail, the problem that the Crown identified in the way in which the sentence had originally been expressed. However, for the sake of completeness, we will say something briefly about that matter.

118 We were told that Central Records had assessed the expiry of Shane Middleton's total effective sentence, as it stands, as being 14 December 2025. That is because he has been in custody since 2 November 2015, save for a period of 43 days on bail. That expiry date seems to be correct. One might therefore have expected the new single non-parole period of eight years to expire on or about 14 December 2023, two years before the expiry of the total effective sentence.

119 However, the date at which Shane Middleton has been assessed as being first eligible for parole, having regard to the sentencing judge's reasons and declarations of pre-sentence detention is said, by Central Records, to be 21 February 2025. That is a mere 10 months before the expiration of his total effective sentence. Such an outcome would be perverse, and entirely contrary to the sentencing judge's explicit statements of intent. In his sentencing remarks, he stated that 'I direct that you not be eligible for release on parole until you have served eight of those ten years of imprisonment'.[21] In the formal orders, his Honour recorded that 'the minimum term be served before being eligible for parole is eight years' imprisonment'.

120 Plainly, the sentencing judge had in mind a period of two years on parole if Shane Middleton were to be granted parole at the first opportunity. However, Central Records maintains that the effect of his Honour's orders, is that there would be a period of only some nine months and two weeks on parole, if granted at the earliest opportunity.

121 The best explanation for this state of affairs may be that the applicant has failed to receive the benefit on the new single non-parole period of eight years of the earlier pre-sentence detention declaration of 211 days made when he was sentenced on 17 November 2016. In addition, it seems that he may also have failed to receive the benefit, as a matter of totality, of the period that he spent as a sentenced prisoner between 17 November 2016 and 28 June 2017, a period of 223 days.

122 It is unnecessary to go into further detail as to how this situation could have been avoided. One possibility would have been to state explicitly that the new single non-parole period of eight years commence on 28 June 2017, and then ensure that both pre-sentence declarations, 211 and 126 days, were brought to bear upon that non-parole period. That seems not to have occurred.

123 When it comes to re-sentencing Shane Middleton, it is essential, in our view, to ensure that there will be a period of three years between his earliest date of eligibility for parole, and the date he completes his total effective sentence. It is not disputed, as we have said, that the latter date is, as calculated by Central Records, 14 December 2025. Accordingly, we contemplate that, his new non-parole period, as fixed by this Court, should expire in such a way as to allow for the possibility of three years of supervision on parole.

124 We order that the Shane Middleton's total effective sentence, being 10 years' imprisonment with a new single non-parole period of seven years, commence today. We further order that the time that he has spent in custody since his initial arrest on 2 November 2015 (clearly excluding the 43 days that he was on bail), be taken into account in the calculation of both the total effective sentence and the new single non-parole period. We calculate that period of pre-sentence detention to be declared as 793 days, not including this day.

125 For the avoidance of doubt, Shane Middleton's total effective term should therefore expire on or about 14 December 2025. If parole were to be granted at the earliest possible date, that should fall on or about 14 December 2022.

[1] Ms Comeadow also pleaded guilty to one charge of having committed an indictable offence whilst on bail, and was sentenced to one months' imprisonment for that offence. The sentence was made wholly concurrent with the sentence for attempting to pervert the course of justice.

[2] (2007) 16 VR 268 ('Verdins').

[3] DPP v Middleton (Unreported, County Court of Victoria, Judge Stuart, 28 June 2017) 207 [50].

[4] This downgraded finding as to prospects of rehabilitation assumed some significance during the course of argument before this Court.

[5] DPP v Middleton (Unreported, County Court of Victoria, Judge Stuart, 28 June 2017) 210 [71].

[6] [2015] VSCA 316; (2015) 47 VR 731.

[8] The applicant relied on Tognolini v The Queen [2011] VSCA 113; (2011) 32 VR 104, where this Court reduced a sentence for attempt to pervert the course of justice from six years to four years' imprisonment, in circumstances where it was submitted, the conduct giving rise to that offence was more culpable, than that of the applicant in this matter. In addition, the offender in that case had a more significant criminal history than did Shane Middleton.

[9] [2010] VSCA 312.

[11] [2010] VSCA 254.

[13] See, eg, Byrne v R (2015) 73 MVR 350; R v Johns [2010] VSCA 63; DPP v Oksuz [2015] VSCA 316; (2015) 47 VR 731; R v Zaydan & Ors [2004] VSCA 245; Thymiopoulos v R [2012] VSCA 220.

[14] Pantazis v The Queen [2012] VSCA 160; (2012) 38 VR 446.

[16] _Crimes Act 1914 (_Cth) s 43.

[17] [1936] HCA 40; (1936) 55 CLR 499.

[18] See, eg, Romero v R [2011] VSCA 45; (2011) 32 VR 486, 493 [25]; Kumova v R [2012] VSCA 212; (2012) 37 VR 538, 541 and 545.

[19] See, eg, Byrne v R (2015) 73 MVR 350; R v Johns [2010] VSCA 63; DPP v Oksuz [2015] VSCA 316; (2015) 47 VR 731; R v Zaydan & Ors [2004] VSCA 245; Thymiopoulos v R [2012] VSCA 220.

[20] See, eg, Gray v The Queen [2010] VSCA 312; Diver v The Queen [2010] VSCA 254; R v VZ [1998] VSCA 32; [1998] 7 VR 693; Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538.

[21] DPP v Middleton (Unreported, Country Court of Victoria, Judge Stuart, 28 June 2017) 209 [65].