Murrell V The Queen; DPP v Murrell [2014] VSCA 337

Court of Appeal (Vic)|2014-12-18|Before: Mr J, Priest JA, Maxwell P, Redlich JA

DPP v Murrell (Unreported, County Court of Victoria, Judge Howard, 18 December 2013); DPP v Murrell (Unreported, County Court of Victoria, Judge Maidment, 13 March 2014).

CRIMINAL LAW - Appeal - Sentence - Offender appeal - Crown appeal - Offender sentenced for two sets of offences - First sentence: conspiracy to commit armed robbery, aggravated burglary, burglary (3), theft (6), possession of firearms - Total sentence 14y, non-parole period 10y 6m - Prohibited person in possession of firearm - Judge applied incorrect maximum penalty - Crown concession of error - Double punishment - Resentenced on firearms charge - Second sentence: armed robbery, handling stolen goods - Sentence 7y 6m, new non-parole period 12y - Gravity of armed robbery - Victim impact - Prior convictions - Specific deterrence - Second sentence manifestly inadequate - Resentenced - Total effective sentence 17y 6m, new non-parole period 14y.

1 I have had the advantage of reading in draft the reasons for judgment of Priest JA. I would make the orders which his Honour proposes, for the reasons which he gives.

2 I too have had the advantage of reading in draft the reasons for of Priest JA. I would make the orders which his Honour proposes, for the reasons which he gives.

3 On 18 December 2013, Lloyd Anthony Murrell - whom, for convenience, I will describe as the applicant - was sentenced by a judge of the County Court to be imprisoned for 14 years with a non-parole period of 10 years and six months for offences which occurred between 14 October 2011 and 2 November 2011 ('the first sentence'). I will later set out the individual sentences and orders for cumulation, but the offences to which the first sentence related included conspiracy to commit armed robbery, aggravated burglary, burglary, theft of motor vehicles and firearms offences.

4 Some three months later, on 13 March 2014, another judge of the County Court sentenced the applicant on charges of armed robbery and handling stolen goods to be imprisoned for seven years and six months. The judge ordered that two years of the sentence be served cumulatively on the first sentence, leading to a total effective sentence of 16 years' imprisonment, upon which he fixed a new non-parole period of 12 years ('the second sentence').

5 The applicant seeks leave to appeal against both the first sentence and the second sentence, and the Director of Public Prosecutions appeals against the

6 Error having been conceded by the Director with respect to the first sentence, I would grant leave to appeal, allow the appeal and resentence the applicant in the manner which I will describe below. Further, for reasons that follow, I would allow the Director's appeal and resentence the applicant. I would fashion orders so as to sentence the applicant to be imprisoned for 17 years and six months, upon which I would fix a non-parole period of 14 years' imprisonment.

7 The details of the first sentence are set out in the table immediately following:

Prohibited person in possession of an unregistered firearm[5]

Dealing in property suspected of being proceeds of crime[8]

17 years and 6 months' imprisonment, with a non-parole period of 14 years

Forensic Sample Order
Forfeiture and Disposal Orders
Disqualified from driving for 5 years

20 years' imprisonment, with a non-parole period of 16 years

Forensic Sample Order
Forfeiture and Disposal Orders

9 Following amendment of the notice of appeal made by leave granted during the hearing, there are four grounds of appeal relating the first sentence:[12]

The total effective sentence and non-parole period are manifestly excessive, as is the individual sentence imposed on count 12.
The learned sentencing judge erred in the sentence imposed by failing to have regard to the new maximum sentence for the count of possessing an unregistered firearm whilst prohibited.
The learned sentencing judge erred in doubly punishing the applicant by cumulating part or an excessive part of the sentences imposed on charge 9 (Kevin Dennis burglary) and charge 12 (possession of firearm whilst prohibited).
The learned sentencing judge erred in doubly punishing the applicant by imposing an inappropriately heavy sentence on charge 12 (possession of firearm whilst prohibited).

10 The respondent conceded that there was some element of double punishment with respect to the sentence on charge 12, but otherwise sought to uphold the individual sentences and orders for cumulation.

The circumstances of the conspiracy to commit armed robbery and associated offences - charges 1, 9, 10, 11 and 12

11 In October and November 2011, the applicant, Nono Ngaa, Matthew Kamal and Tekin Saner (the applicant's half-brother) joined in a conspiracy to commit an armed robbery at a gaming venue known as JD's Sports Bar in Ballarat (charge 1, conspiracy to commit armed robbery). The applicant was the principal planner and organiser in the conspiracy.

12 The conspiracy came to light when, between 14 and 27 October 2011, New South Wales police intercepted the applicant's telephone conversations which revealed a plan to commit an armed robbery in the Ballarat area. Victorian police were advised by their interstate counterparts, and they subsequently intercepted mobile phone communications between the applicant, Ngaa, Kamal and Saner between 27 October and 2 November 2011. Police also carried out surveillance of the conspirators' activities.

13 Leading up to 2 November 2011, the applicant spoke to Kamal about obtaining a handgun for use in the robbery. The applicant also spoke to Kamal and Saner about the date of the Melbourne Cup. He selected the day after the Melbourne Cup, 2 November 2011, as the date the robbery would be carried out, thinking that the proceeds would be maximised. In discussion with Saner, the applicant anticipated that they might make $20,000 to $30,000 each from the robbery.

14 The applicant and Saner also discussed stealing a car for use as a 'getaway' car. He and Kamal went to several car yards and to streets in Point Cook looking for vehicles to steal. On 30 October 2011, the applicant and Kamal also went to JD's Sports Bar and looked around the premises.

15 Police had the applicant and Kamal under surveillance when, on the morning of 1 November 2011, they drove to Braybrook and parked near Kevin Dennis Motors. Kamal entered the car yard and stole a set of keys which belonged to a Holden Commodore SS sedan, valued at $40,000 (charge 9, burglary). The applicant and Kamal returned later that day, and the applicant entered the yard and used the keys to drive the Commodore away (charge 10, theft of motor car). They drove to Central West Shopping Centre, where Kamal advised the applicant to park the vehicle so as to subsequently collect it. Later, the applicant and Kamal drove the Commodore to Tottenham. They parked it, intending to use it the next day in the planned armed robbery. That evening, however, the car was located by the owner and recovered.

16 There were further discussions about the planned armed robbery that same day. That night, Kamal and the applicant went to Tottenham to retrieve the stolen Commodore but, of course, could not locate it. The applicant suggested they go to Ballarat and steal a car the next day.

17 During the morning of 2 November 2011, the applicant told Saner that Ngaa and Kamal would be going in to the Sports Bar. He said that Saner would be the 'getaway' driver and that he would watch the police station. Police observed the four men leave the applicant's house in Point Cook. The four drove in two cars to Saner's house in Canadian, a Ballarat suburb. At 7.36am the four would-be robbers drove past JD's Sports Bar and to the Ballarat Railway Station. They were seen checking several vehicles. At 8.05am the applicant, Kamal and Ngaa broke into a Holden Statesman sedan while Saner waited in the applicant's Subaru. The applicant forced the ignition of the Statesman using a screwdriver and, with Kamal and Ngaa, drove it to Lydiard Street, Ballarat (charge 11, theft of motor car). They parked the car about 10 metres south of the Sports Bar for use as a getaway car. The four men then returned to Saner's house.

18 After a short time the four men left Saner's house. The applicant drove his Subaru sedan, with Kamal and Ngaa as passengers. Saner followed in a Nissan Pulsar. Four unmarked Special Operations Group police vehicles approached the two vehicles at 8.40am. One police vehicle approached the Subaru from directly in front and activated flashing lights. The applicant swerved, but collided with it. He then reversed, and collided with Saner's Pulsar. The applicant's car then collided with a second police vehicle, and then again with the first, before mounting a traffic island. Police in two other vehicles attempted to block both the Subaru and the Pulsar. One police officer opened the rear driver's side door of the Subaru. He saw a revolver and called out 'gun' to warn other police. Police pulled Ngaa from the car. Inside his jacket police found black cable ties, formed into interlocked loops. The applicant got out of the Subaru. He was told to get down on his stomach and was restrained by police. Kamal had to be physically removed from the car, wrestled to the ground and subdued with a Taser. Saner also had to be physically removed.

19 Significantly, inside the Subaru police found an unregistered .38 calibre 'Smith & Wesson' revolver. It was fully loaded (charge 12, prohibited person in possession of an unregistered firearm).

20 At the applicant's home, police later seized a Taser (summary offence, possessing a prohibited weapon) and large amount of property believed to be proceeds of crime (summary offence, dealing with property suspected of being proceeds of crime).

The circumstances of the aggravated burglary and associated offences - charges 3 and 4

21 During the evening of 26 October 2011, the applicant and Ngaa - wearing balaclavas, gloves and dark clothing, and carrying two handguns - entered a house in Sunshine (charge 3, aggravated burglary). There were two children, aged 12 and 14 years, inside. Seeing the two intruders inside the house, the children tried to hide on the roof. Ngaa saw the children on the roof. He pointed a gun at them and told them to get back inside. The applicant and Ngaa spoke to the children in their mother's bedroom. They pointed their guns at the terrified children, demanded money and gold, and asked to be shown the safe. When the older sister of the children, aged 18 years, and her female friend, aged 16 years, arrived home, the applicant and Ngaa told the children to let them in. Once they were inside the house, the applicant and Ngaa - carrying the handguns - confronted the two girls. One girl tried to run upstairs, but was chased by Ngaa who told her to go back downstairs. The mother of the older sister's friend then arrived, and the applicant and Ngaa left. The applicant and Ngaa stole jewellery, a camera, three laptop computers and a leather backpack from the house (charge 4, theft).

22 On 23 October 2011, some time after 10.00 pm, the applicant, Saner, and a third man went to a house in Miner's Rest and forced their way into the garage and stole a limited edition 1985 Holden Commodore sedan, valued at $30,000 (charge 2, theft). The applicant hid the car in his garage in Point Cook. It was then taken to a factory in Tottenham, where investigators later recovered it.

23 A few days later, at about 9:40pm on 27 October 2011, the applicant, Saner, and a third man went to the City West Yamaha store in Hoppers Crossing. They used a metal pole to smash a surveillance camera, and a pair of bolt cutters to cut off a padlock attached to the main doors. The three men then rammed a stolen Toyota van into the front doors, and entered the store (charge 5, burglary). They interfered with a sensor for the flood lights inside the store so as to stop security flood lights from coming on. Eight motor bikes valued at $18,000 were removed and loaded into the Toyota (charge 6, theft). In the process they knocked over several motorbikes, causing approximately $8,000 damage. They drove to the applicant's house in Point Cook and put the motorbikes in the front bedroom of the house. At about 10:50pm the Toyota van was found by police burnt out in Altona. Following the execution of search warrants at the applicant's and Saner's homes on 2 November 2011, the motorbikes were recovered.

24 Four days after the theft of the motorbikes, on 31 October 2011, the applicant and Kamal entered a home in Seabrook while under police surveillance. Kamal smashed a rear bedroom sliding window, unlatched a window and gained entry to the house (charge 7, burglary). The two men ransacked the house, and stole property such as jewellery and electronic items to a total value of approximately $14,000 (charge 8, theft). Police later observed the two men and the applicant's son taking stolen items into the applicant's Point Cook house. When executing a search warrant at the applicant's home on 2 November 2011, police located items stolen during the burglary.

25 Each of the grounds of appeal, in one way or another, attacks the individual sentence on the charge of being a prohibited person in possession of an unregistered firearm (charge 12). Ground 3 also alleges that the applicant was 'doubly punished' on charge 9; and the first ground claims that the total effective sentence and non-parole period are manifestly excessive.

26 Similar issues to those presently raised were dealt with by this Court in Saner v The Queen,[13] which involved the applicant's co-offenders, Saner and Kamal. In submissions redolent of those made in the present case, Kamal argued that the individual sentence imposed for the charge being a prohibited person in possession of an unregistered firearm (charge 11 on the relevant indictment)[14], as well as the order for cumulation, had the effect of doubly punishing him, as his possession of the firearm formed a part of the conspiracy to commit armed robbery (charge 1). Having referred to several authorities bearing on the question of double punishment - including Armistead[15] and Kruzenga[16] - in upholding Kamal's submissions, Tate JA (with whom Redlich JA agreed) said:[17]

In my view, the circumstances here are clearer than those that applied in Armistead. Here the act of possession the subject of charge 11 was not based upon conduct distinct from the conspiracy to commit armed robbery. It was based upon conduct that took place during the conspiracy and was only discovered when the car in which Kamal was travelling, with Murrell and Ngaa, towards the JD's sports bar, was obstructed by the police when the conspiracy was detected. Moreover, it is also apparent that the judge took into account the conduct that he relied upon in support of charge 11, Kamal's possession of the firearm, as an aggravating factor in the conspiracy to commit armed robbery. In assessing the seriousness of the offending, the judge considered the fact that 'there was a loaded Smith & Wesson revolver found' alongside other aggravating factors including the theft of multiple cars, the fact that disguises and cable ties were to be used, and the consideration that the armed robbery was to take place in broad daylight in a main street of Ballarat. Having treated the possession of the firearm as an aggravating factor in the conspiracy, it was incumbent on the judge not to punish again for the very same conduct.

...

However, while the maximum penalty for the possession offence is substantial, the imposition of a sentence of four years for possession of a firearm would, as Redlich JA noted in Armistead, usually be reserved for those occasions on which the possession was linked to its use for criminal activity. In my view, the severity of the sentence on charge 11 indicates that the judge took into account the association of the possession of the firearm with criminal activity in sentencing Kamal under charge 11 while also taking into account the possession of the firearm in sentencing for that very same criminal activity.

Moreover, the circumstances here go beyond mere overlap. Analogously to the observations made by Weinberg JA in Kruzenga, here the possession of the revolver was for one reason only, for use in the planned armed robbery. It was thus necessary for the judge to take great care not to treat the possession of the revolver as both an aggravating feature of the conspiracy and a separate and distinct offence requiring a significant measure of punishment as well as a substantial amount of cumulation. Yet there is no reference made in the judge's sentencing reasons to any moderation of sentence to avoid the possibility of doubly punishing Kamal.

In my view, the judge failed to take the care required in sentencing Kamal to four years' imprisonment on charge 11, with a cumulation of one year, when he had taken the possession of the firearm into account as an aggravating factor in sentencing Kamal to six years on charge 1, the conspiracy offence. I consider that the judge erred in doubly punishing Kamal. At the hearing of the appeals, the Crown conceded that an element of double punishment had crept into the sentence of four years. It submitted, however, that some degree of cumulation was necessary and that one year might be appropriate.

The Crown further submitted that, as the double punishment argument was not advanced on the plea, Kamal should therefore be prevented from raising it on the appeal. This submission should be rejected. There was no obligation on Kamal to make submissions in anticipation that the judge would fall into the error of doubly punishing him by treating the possession of the firearm as an aggravating feature of the conspiracy offence without modifying the sentence he imposed on the possession offence, in the absence of any intimation that this is what the judge intended to do. In light of the nature of the error, and the obligation that rested on the judge to take the necessary care to avoid doubly punishing Kamal, I consider that a failure to make the relevant submission on the plea ought not preclude Kamal from relying on the submission on his appeal.

27 Later, her Honour dealt with a ground which alleged that the sentencing judge had failed to take into account the lower maximum penalty enacted for the firearms offence. Tate JA noted that, at the time the offence was committed, s 5(1A) of the Firearms Act 1996 provided that, '[a] prohibited person must not possess, carry or use a firearm that is not registered'. The maximum penalty of imprisonment imposed for that offence was 15 years (whereas, by virtue of s 5(1), the offence being a prohibited person in possession of a 'registered firearm' attracted a maximum penalty of 10 years' imprisonment). Her Honour observed that s 5(1A) was repealed in May 2012 by virtue of s 8(2) of the Control of Weapons and Firearms Amendment Act 2012. That Act also substituted a new s 5(1), which provides that '[a] prohibited person must not possess, carry or use a firearm'. A maximum penalty of 10 years' imprisonment is prescribed. Tate JA cited authority, including Driver v The Queen,[18] and said:[19]

The amendment to the Firearms Act has thus created a new offence, one that does not distinguish between the registered or unregistered nature of the

firearm.[20] The new offence created is a hybrid of the two previously distinct offences and the applicable penalty is that which applied to the lesser offence; this would appear to be a natural consequence of it no longer being necessary to the commission of the offence that the firearm of which the offender is in possession is unregistered. The legislative history together with the nature of the legislative amendment are quite different from those which applied in Driver. Nevertheless, one of the purposes of the amending legislation was declared to be to 'combine two offences relating to prohibited persons possessing, carrying or using registered or unregistered firearms.[21] In so declaring, Parliament has indicated that the distinction between registered and unregistered firearms is not to be given the significance previously associated with it in the context of this specific offence.

In my view, it should be concluded that the amendment made here, the repeal of s 5(1A) of the Firearms Act, and its replacement by s 5(1) of the Firearms Act, reflects a change in attitude by the Parliament which enables Kamal's submission to succeed.

28 With respect, much of Tate JA's reasoning in Saner,[22] when dealing with the grounds raised by the applicant's co-offender, Kamal - both as to double punishment and as to the relevance of the reduced statutory maximum - is apposite to the applicant's case. Indeed, I am grateful to be able to adopt a deal of her Honour's careful analysis. Tate JA - with the concurrence of Redlich JA - was of the view that a sentence of 12 months' imprisonment should be imposed on Kamal on the firearms charge, and that three months of the sentence should be served cumulatively on the conspiracy charge. Were it not for the presence of two factors, it would have been appropriate to make similar orders in the present case.

29 First, and most importantly, the applicant's possession of the firearm was not a mere overt act of the conspiracy to commit armed robbery. The evidence revealed - and the judge accepted - that the firearm was also used in the terrifying aggravated burglary which was the subject of charges 3 and 4, which was an offence separate and distinct from the conspiracy. The evidence further supported the inference that the gun was possessed for other criminal purposes. Thus, it was appropriate to punish the applicant for his possession of the firearm, with his intended use of it in other unlawful activities,[23] so long as he was not doubly punished insofar as his possession of the gun was also an overt act of the conspiracy. Secondly, and perhaps less importantly, the applicant's prior convictions were far worse than those of his co-accused, rendering specific deterrence and community protection of greater importance in his case.

30 Taking into account the changed statutory maximum, and also taking into account the extent to which there was some double punishment, in my view it is necessary to resentence the applicant on charge 12. Accordingly, I would impose a sentence of two years and six months' imprisonment on that charge. Given that his possession of the firearm was not a mere overt act of the conspiracy and that he had possession of the gun for intended use in other criminal activity, cumulation in the order of nine months' imprisonment is justified by those features of the firearms offence that are not subsumed within the conspiracy charge as one of its overt acts; in particular, the fact that the applicant relevantly was a 'prohibited person', and that he had possession of the firearm for use beyond the conspiracy.

31 In my view, there is also merit in the submission that the degree of cumulation ordered with respect to the sentence on charge 9 - nine months' imprisonment - results in unacceptable double punishment. The burglary which was the subject of charge 9 was to obtain a 'getaway' car and was, to a large extent, an overt act of the conspiracy. (The judge recognised as much when making no part of the sentences for the actual theft of the first getaway car, charge 10, or the second getaway car, charge 11, cumulative on the sentence for the conspiracy charge.) Although I would confirm the sentence of two years' imprisonment on charge 9, I would order that six months of that sentence be served cumulatively on other sentences.

32 Apart from the individual sentence on charge 12, and the orders for cumulation on charges 9 and 12, I regard all other individual sentences and orders for cumulation made as part of the first sentence as proper. The result of the orders I propose with respect to charges 9 and 12 is that the total effective sentence will be 13 years and six months' imprisonment. Once I have dealt with the Director's appeal, and the application for leave to appeal, on the second sentence, it will be necessary to fix a new global non-parole period.

The Director's appeal and the application for leave to appeal against the second sentence

33 As earlier observed, on 13 March 2014, a judge of the County Court sentenced the applicant on one charge of armed robbery (charge 1)[24] and two charges of handling stolen goods (charges 2 and 3) to a total effective sentence of seven years and six months' imprisonment.[25] The judge ordered two years of this second sentence to be served cumulatively on the first sentence, leading to a total effective sentence of 16 years, and he fixed a new non-parole period of 12 years.

34 The Director appealed against the second sentence on a single ground which complained that the individual sentence on charge 1, armed robbery, the order for cumulation on the first sentence and the new non-parole period are manifestly inadequate.

35 Two grounds were sought to be agitated in the applicant's application for leave to appeal against sentence. The two grounds (each supported by particulars which it is unnecessary to reproduce) are:

The sentence imposed was in error as it was based on an earlier sentence itself affected by alleged error, resulting in a manifestly excessive total effective sentence and non-parole period.
In addition, or in the alternative to ground 1, the sentence imposed on the individual counts and the total effective sentence and non-parole period are manifestly excessive.

36 As I have said, I would allow the Director's appeal and refuse the applicant leave to appeal.

37 The circumstances of the armed robbery charge (charge 1) are extremely disturbing.

38 On 2 or 3 December 2010, the applicant, his sister, Kerry Murrell, and his nephew, Anoir Murrell, visited Stacey Watson in Ballarat. Ms Watson's mother had previously had a relationship with Kerry. During the visit, the applicant asked Ms Watson, 'Who's loaded in Daylesford?'. She told him that, 'Everyone knows its Jim and Dianne Frangos'. At one time, Ms Watson had worked at a café run by Mr Frangos and his wife. The applicant asked Ms Watson about the premises and the safe.

39 A day or two later, on 4 December 2010, at approximately 8.15pm, a male matching the applicant's description asked Frederic Eggleston for the location of the Frangos' home. He pointed it out.

40 Later that day, at approximately 6.30pm, James Frangos arrived home from work. His wife, Dianne, and their daughters, Bianca and Melia, were at home. Also at home were Melia's husband, Timothy Scanlon, and their children, Otis, aged 3 years, Shaemus, aged 2 years, and Raqual, aged 8 months. Bianca, who has Down Syndrome, went upstairs to bed at about 7.00pm; and at approximately 8.00pm, James Frangos went upstairs to read in his bedroom. Mr Scanlon had put his three children to bed.

41 Later, at about 10.30pm, the applicant, Kerry Murrell and, so the prosecution alleged, Anoir Murrell and an unknown offender, entered the loungeroom of the Frangos' home carrying guns and poles. One of the intruders said, 'we want the fucking money', provoking Dianne Frangos to respond, 'what are you on about?'.

42 Hearing Melia scream, James Frangos ran downstairs. Melia had been pushed to the floor. He said to the assailants, 'let my daughter go, you can have what you like'. James Frangos noticed that one of the group was holding what looked like a 9mm pistol; another had a sawn off shotgun; and the other two were holding steel pipes. His wife, Dianne, and son-in-law, Timothy, were also present.

43 The intruder with the shotgun waved it at the family. Seconds later, another hit James Frangos over the left shoulder with the steel pipe. Holding the shotgun pointed at his head, one of the offenders told Mr Frangos, 'don't fucking try anything', whilst another threatened, 'I will fucking crush your skull'. Demands were made for $150,000 cash, the offenders telling James Frangos, 'don't try and tell us you haven't got it, we know you have and we will shoot you'. The assailants then asked about a safe. They told the terrified victims that if they did not comply, they would have to start shooting them and chopping off their fingers. Dianne Frangos then opened the safe. It was empty. She was then told, 'hand over all your gold'. Mrs Frangos then handed over her watch. She told the offenders that there was no cash, and that it must be at their business in Daylesford. The attackers then threatened to cut up her husband. They ransacked the house.

44 James Frangos was asked to take Bianca to the main bedroom. In the meantime, Dianne, Melia and Timothy, were taken to the main bedroom upstairs. The offenders commenced bagging up jewellery, cash and valuables. They told the family not to contact the police. The offenders then left.

45 The family had been locked in. James Frangos used a pipe left behind by the offenders to force the door. He ran to a neighbour's house and raised the alarm. Police discovered that the vehicles sitting in the driveway had been rummaged through. Several items had been stolen from Timothy's vehicle.

46 Several days later, the applicant and Kerry Murrell returned to Ms Watson's house. The applicant said, 'They had fucking nothing Stacey, they had nothing. What did you tell us that for? You told us they were loaded. Jim couldn't even buy curtains for his wife'.

47 Search warrants were subsequently executed at properties belonging to, and being rented by, the offenders. Balaclavas were found. A laptop computer belonging to Timothy was also located. A pistol, a sawn-off firearm and a memory stick belonging to Timothy, were found at Kerry Murrell's house. Porcelain dolls belonging to Bianca were later found at the home of Lisa Bright, who was the partner of Tekin Saner, the applicant's step-brother. A camera belonging to Timothy was later seized by police at the home of Jaymi Watson, who had formerly lived with Kerry Murrell.

48 On 2 November 2011, the applicant was, as I have said, arrested by the Special Operations Group on his way to commit an armed robbery which was the subject of the first sentence. At the time of his arrest he was found to be in possession of an Apple mp3 player which had been reported stolen on the 22 of August 2011 (charge 2, handling stolen goods), together with three compact discs, one Tom Tom receiver and one Procomp device that had been reported stolen on 14 September 2011 (charge 3, handling stolen goods).

49 In my opinion, the applicant's contention that 'the sentence imposed on the individual counts and the total effective sentence and non-parole period are manifestly excessive' cannot succeed. On the other hand, in my view, the Director's submissions that the sentence on charge 1, armed robbery, and the orders for cumulation with respect to the first sentence, are manifestly inadequate, should be upheld.

50 The armed robbery was nasty, vicious and cruel. It was, apart from the plea of guilty, not much mitigated. The members of the Frangos family, who were entitled to feel safe in their home, were subjected to a terrifying ordeal, from which, as the victim impact statements show, in all likelihood, they will never fully recover. Their sense of security has irredeemably been shattered by the applicant's appalling offending. The victim impact statements received from James Frangos and Dianne Frangos (who also spoke of the psychological harm caused to their daughter, Bianca), and of Melia Frangos, speak eloquently of the trauma that they have suffered and continue to suffer. The statements make for sad reading. Their effect was summed up by the judge in his sentencing remarks:

Needless to say, the victim impact statements that are relied upon by the prosecution and tendered before me, show that the impact of your offending conduct on this occasion will have a lasting impact upon your victims. There is no doubt that you have significantly destroyed their quality of life, all three of them, and you have left them with scars that will not heal. They will bear those scars, I have no doubt, for the rest of their lives, and will feel uncomfortable living in their home for the rest of their lives.

You have shattered that sense of safety that a citizen is entitled to feel in his or her home. It is clear from an accompanying psychologist report in relation to Melia Frangos, that she is receiving ongoing psychological treatment, and is likely to suffer from these effects for a very significant part, or the rest of her life. All of those matters I am bound to take into account.

51 Although, of course, the Court must be astute not to become overwhelmed by an emotional response to the reprehensible nature of the offending, and must be careful to approach all of the relevant features of the applicant's offence with objectivity, nonetheless the impact of the offending on the victims remains a highly relevant factor, and bears on the objective gravity of the applicant's crime.

52 As I have observed, there is little in the way of mitigation. The applicant appears to be an incorrigible recidivist. His criminal history is appalling. Although, of course, he is not to be punished again for his prior offences - and no sentencing principle requires that more severe penalties be meted out to those who reoffend - nonetheless the applicant's prior convictions throw light on his moral culpability, his prospects of rehabilitation, his propensity to commit violent offences while armed with dangerous weapons (and thus the perspicuous need for community protection), and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a personal deterrent.[26]

53 The judge made no finding of remorse, and I would not be prepared to find much, if anything, in the way of remorse. I acknowledge, however, that the plea of guilty had a utilitarian effect, and that the applicant is entitled to mitigation of the sentence because of it.

54 There seems little doubt that the applicant had, as the judge noted, 'a very difficult childhood, a deprived background and an extremely difficult start to [his] life'. The applicant, the judge observed, does 'not have a high level of intelligence', and the effect of the various events in the applicant's childhood, has resulted in him suffering from post-traumatic stress disorder of a serious kind. During the plea hearing, the applicant's counsel tendered a report from a clinical psychologist, Dr Cunningham, and various other reports and certificates, which demonstrated that, whilst on remand at the Metropolitan Remand Centre, the applicant had been participating in a number of programs within the Metropolitan Remand Centre. The material showed that the applicant had sought to improve his range of skills, and had used his time as wisely as he could. Further, the judge noted that the applicant had 'been in protection for part of that time', and therefore had not been able to participate as fully as he might otherwise have wished. It was also to the applicant's credit that he had remained drug free while on remand. The judge said:

Dr Cunningham also notes that because of your criminal record and the fact that you have had long terms of imprisonment, you have become institutionalised. That will not have assisted you in dealing with your mental disorders. It is urged upon me that I should take your post-traumatic stress disorder into account. Undoubtedly it will make serving your term of imprisonment more difficult than for a person who did not have such a disorder. And for that reason it requires me to adjust the sentence that I should otherwise impose upon you.

Dr Cunningham does express the opinion that you represent an ongoing risk of re-offending until you engage in ongoing psychological and psychiatric drug and alcohol and community support. There is no doubt that, looking at your criminal record, that opinion is well founded. ...

55 Notwithstanding the slight glimmer of hope, based on his time on remand, that the applicant is not beyond reclamation, the applicant's prospects of rehabilitation must be seen as meagre. His record is very bad. Significantly, he had been released on parole in New South Wales in November 2010, about a month before the armed robbery on the Frangos home. The sentence for which he was released on parole was imposed in the Central Criminal Court on 5 April 2002, when the applicant was sentenced for a series of offences, including several counts of armed robbery, aggravated sexual assault and kidnapping. The total effective sentence imposed was 13 years' imprisonment, with a non-parole period of seven and a half years. Hence he was on parole at the time of the present offences.[27] That is, quite obviously, another feature which militates against the extension of leniency.[28]

56 Apart from prospects of rehabilitation and the need for specific deterrence, general deterrence, just punishment, curial denunciation and community protection are all highly relevant factors in fixing sentence. In my opinion, having regard to the individual sentence passed on the charge of armed robbery, and the order cumulating but two years of the second sentence on the first, the judge has fallen into error.

57 It is worthwhile repeating certain aspects of the principles which guide the Court when a complaint of manifest inadequacy is advanced, even though it might be assumed that they are well understood.

58 Lowe and Gavan Duffy JJ said in R v Taylor and O'Meally:[29]

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere.

59 In a similar vein, in Dinsdale v The Queen,[30] Gleeson CJ and Hayne J observed:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. ...

60 Later, Kirby J (with whom Gaudron and Gummow JJ agreed) said:[31]

The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[32] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[33] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,[34] this Court remarked that:

a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[35] ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[36] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[37]

As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.[38] In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[39]

The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct 'idiosyncratic views'[40] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.

61 As the High Court has recently observed, there is no single correct sentence for an offender and an offence.[41] This Court's power can only be animated if it is satisfied that the sentencing discretion miscarried because the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offending consistently with sentencing standards.[42] The Court must be astute not to intervene simply because its members would have imposed a different sentence if sentencing at first instance.

62 In my view, the Director's contention of manifest inadequacy is made out, and appellate intervention is required. It is, in my view, 'plainly apparent' that the sentence is inadequate. The sentence on the armed robbery is 'manifestly ... too short', and it is plainly apparent that insufficient cumulation was ordered between the first and second sentence.

63 Counsel for the applicant, in written submissions, drew attention to a Sentencing Snapshot for armed robbery.[43] The applicant cannot, however, derive much comfort from it, since it revealed a very great range of sentences. Hence, the length of total effective sentences of imprisonment for armed robbery ranged from three months at the bottom end of the spectrum, to 16 years at the top; while the median total effective length of imprisonment was three years years and eight months (meaning that half of the total effective sentence lengths were below three years and eight months and half were above). Further, the most common range of total effective imprisonment length was three, to less than four, years. Little may be gleaned from the statistics, however, as to the circumstances of the individual cases going to make up the sample from which these bare statistics are drawn. That, in my view, is their greatest limitation. Each sentence requires attention to the individual features that are unique to it, including, of course, the particular circumstances of the offence and the offender, and the peculiar aggravating and mitigating features.

64 The present was a very bad case of armed robbery. It was committed on wholly innocent individuals in their own home. It was accompanied by gross threats of, and actual, violence. It has had a permanently blighting effect on the victims. It was committed by an individual with multiple prior convictions for armed robbery, who, it is plain, has not much been deterred by previous lengthy sentences of imprisonment. It was, apart from the plea of guilty, not greatly mitigated.

65 Armed robbery is punishable by up to 25 years' imprisonment. It may be accomplished in a wide variety of ways, and in a wide variety of circumstances. Although the Court must have regard to current sentencing practices when fixing sentence,[44] that is but one factor in a constellation of many to which the Court must have regard. Current sentencing practices do not constrain the Court to impose a sentence which would be inadequate in light of all the circumstances relevant to the offence and the offender. Moreover, it is, in any event, difficult to discern any current sentencing practice for this offence where it can properly be placed in the worst category. Usually, a home invasion such as the present, where armed offenders steal property using force or the threat of force, results in charges both of aggravated burglary and armed robbery (and injury charges if actual physical injury has been caused). That fact makes this case a little unusual, since only a charge of armed robbery was preferred.[45] Nonetheless, total effective sentences of in excess of eight years' imprisonment - acknowledging that the total effective sentences related to multiple charges - are not unusual for home invasions of the present kind.[46]

66 In my opinion, the applicant's very bad prior history required a significantly greater sentence for armed robbery, and significantly greater degree of cumulation, than was imposed. As I have said, the applicant has not, it seems, been deterred by previous sentences of imprisonment imposed upon him for armed robbery. Although any sentence passed on him must be proportionate, and it would be wrong in principle to 'warehouse' him simply because of his dangerous and anti-social propensities, nonetheless community protection, just punishment, and general and specific deterrence, all demanded a far greater sentence than that imposed.

67 The sentence on the charge of armed robbery is, as I have said, manifestly inadequate. Having regard to all relevant factors discussed above, I would impose a sentence on that charge of nine years' imprisonment. I would not interfere with the individual sentences on the handling charges, charges 2 and 3, or the orders for cumulation relating to them. In the result, the total effective sentence will be one of nine years and six months' imprisonment.

68 Further, the cumulation ordered was, in my view, plainly inadequate. I would order that four years of the present sentence be served cumulatively on the first.

69 The total effective sentence is thus 17 years and six months' imprisonment, upon which I would fix a non-parole period of 14 years' imprisonment.

70 My overall intention is set out in the table below.

71 Since I am required to do so - but fully cognisant of the artificiality of the exercise - pursuant to s 6AAA of the Sentencing Act 1991 I declare that, but for the plea of guilty, I would have sentence the applicant to be imprisoned for 22 years with a non-parole period of 18 years.

Prohibited person in possession of an unregistered firearm

Dealing in property suspected of being proceeds of crime

Total effective sentence on Indictment C1108203.2

Total effective sentence on Indictment C10894854.1

Cumulation of total effective sentence on Indictment C10894854.1 on the total effective sentence Indictment C1108203.2

[5] Firearms Act 1996, s 5(1A)(e). This provision was repealed on 16 May 2012, and was replaced by a new (but similar) offence in s 5(1), with a maximum penalty of 10 years' imprisonment. The new provision provides that a prohibited person must not possess, carry or use a firearm. By way of contrast, the legislation in force at the time of the offending distinguished between a prohibited person carrying a registered firearm (10 year maximum under s 5(1) as it then stood) and a prohibited person carrying an unregistered firearm (15 year maximum under s 5(1A)).

[11] See the table at [7] above.

[12] I have renumbered the grounds and omitted the particulars subjoined to grounds 1 and 2 (as renumbered).

[13] Saner v The Queen [2014] VSCA 134 (Redlich and Tate JJA) ('Saner').

[14] Charge 11 on the indictment against Kamal corresponded to charge 12 on the indictment against the applicant.

[15] Amistead v The Queen [2011] VSCA 84 ('Armistead').

[16] Kruzenga v The Queen [2014] VSCA 10.

[17] Saner [2014] VSCA 134, [118]-[123] (emphasis added).

[19] Saner [2014] VSCA 134, [137]-[138] (emphasis added).

[20] The Firearms Act 1996 continues to treat the registration of firearms as a matter of legal significance. The Chief Commissioner is obliged to maintain a register: s 113. Section 8A provides for proof of registration in proceedings where a firearm does not have a serial number or the serial number has been defaced.

[21] Control of Weapons and Firearms Amendment Act 2012 s 1(b)(iii).

[23] Armistead [2011] VSCA 84.

[24] It should be noted that the indictment was a 'plea' indictment. The single charge of armed robbery embraced the four victims, James Frangos, Dianne Frangos, Melia Frangos and Timothy Scanlon. Kerry Murrell, a co-offender, also pleaded guilty to a single charge of armed robbery relating to the four victims. A third co-offender, Anoir Murrell stood trial on an indictment containing one charge of aggravated burglary and four charges of armed robbery (that is, one charge of armed robbery for each victim).

[25] I note that the Return of Prisoners wrongly records that the applicant was sentenced for aggravated burglary, rather than armed robbery. This is an error which requires correction.

[26] R v O'Brien & Gloster [1997] 2 VR 714, 718 (Charles JA).

[27] Section 16(3B) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed whilst on parole for another offence 'must, unless otherwise directed by the court because of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to in custody in prison on cancellation of the parole order', is picked up by s 27 of the Prisoners (Interstate Transfer) Act 1983: R v BF [2007] VSCA 217; (2007) 177 A Crim R 331, 345-6 [65]. Thus, had there presently been any unexpired portion of the New South Wales sentence imposed on 5 April 2002 still to be served, the principle of totality would have required that it be taken into account in re-sentencing: R v Piacentino 15 VR 501, 515 [62]-[63]. The Court has been informed, however, that the New South Wales authorities regard him as having served the sentence. In short, he was paroled on 2 November 2010. On 11 February 2011 his parole revoked, and a warrant was issued for his arrest (although the warrant was backdated to 31 January 2011). On 16 March 2011, the applicant was received back into custody. A few weeks later, on 8 April 2011, the State Parole Authority (NSW) reviewed the revocation of parole, and it was decided that the revocation order should stand. On 30 July 2011, however, it was decided that the applicant had served all time ordered to be served.

[28] R v Kuru (1995) 78 A Crim R 447, 451 (Phillips CJ, Southwell and Hampel JJ).

[30] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (emphasis added). See also DPP v Werry (2012) 37 VR 524, 534 [52]-[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).

[31] Ibid 339-40 [57]-[60] (emphasis added).

[32] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq); [1999] HCA 3; 160 ALR 588, 609.

[33] Fleming v The Queen (1998) 197 CLR 250, 258-260 [17]-[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297-298 (Glass JA).

[35] See, eg, R v Tait (1979) 24 ALR 473, 476; R v Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] VicRp 83; [1996] 2 VR 520, 522.

[36] Cf House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[37] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519-520; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652, 655.

[38] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[39] R v Valentini [1980] FCA 133; (1980) 2 A Crim R 170, 174; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254, 259-261.

[40] Cf R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); cf R v P [1992] FCA 626; (1992) 39 FCR 276, 285.

[41] Bugmy v The Queen (2013) 249 CLR 571, 588 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[42] Ibid. See also Munda v WA [2013] HCA 38; (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

[43] Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2008-09 to 2012-13, Sentencing Snapshot No 153 (June 2014).

[46] Bonnaci v The Queen (2012) 224 A Crim R 194; Ahmed v The Queen [2012] VSCA 200.

Control of Weapons and Firearms Amendment Act 2012

Weapons and Firearms Amendment Act 2012

(Interstate Transfer) Act 1983

At a glance

Court

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Before

Source

Judgment (140 paragraphs)

Legislation Cited (4)

Cases Cited (12)