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[2020] VSCA 219
Court of Appeal (Vic)
2020-09-02
Mr P, Hargrave JA, Forrest JA
Original judgment source is linked above.
[2019] VCC 392 (Judge McInerney)
CRIMINAL LAW - Appeal - Sentence - Sentencing considerations - Manifest excess - Exercise of sentencing discretion - Principle of totality - Principle of proportionality - Impact of prior criminal history on sentencing - Prior convictions and purpose of protection of the community - Prior convictions and purpose of deterrence; ; , ; , ; considered, , ,
1 On 27 February 2019 the appellant pleaded guilty to the charges set out in the table below. On 13 March 2019 he was sentenced by a judge of the County Court as follows:
Aggravated Reckless Exposure of Emergency Workers to Risk by Driving
(s 18(1)(a) Road Safety Act 1958)
(s 30B Bail Act 1977)
(s 18(1)(a) Road Safety Act 1958)
(s 51(2) Summary Offences Act 1966)
(s 6(1) Control of Weapons Act 1990)
(s 30B Bail Act 1977)
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Section 6AAA Statement:
7 years with a non-parole period of 5 years and 2 months
On Charge 2 - Driver Licence/s cancelled and disqualified for 24 months
On Charge 27 - Driver Licence/s cancelled and disqualified for 12 months
2 The appellant was granted leave to appeal pursuant to s 280 of the Criminal Procedure Act 2009 on the following ground:
Ground 1
The individual sentences imposed on each of Charge 1, 2, and 4, the orders for cumulation made on Charges 1, 3, and 4, the total effective sentence and the non-parole period fixed are each manifestly excessive.
3 Thus the focus of this appeal is around charges 1 to 4. We shall set out a summary of offending. This is largely derived from the Summary of Prosecution Opening ('SPO') tendered at the plea hearing.[1] We observe that not all of the criminality alleged in the SPO was captured by the charges on the indictment; nevertheless it was before his Honour without any objection on the appellant's part.
4 On 11 May 2018 at approximately 8:30 pm, the appellant drove a blue Ford Territory with registration 1GW 2DP to a 7-Eleven service station in Pascoe Vale. He used a fuel pump to put $94.61 worth of petrol into the vehicle.
5 The appellant entered the store and told a staff member that he did not have any money to pay for the fuel, and requested a 'Drive-Off' form. When the staff member refused to provide the appellant with this form, the appellant became abusive, which caused the staff member to dial '000'. The appellant then lifted up his shirt and showed the staff member what the staff member perceived to be the handle of a handgun. The appellant told the staff member to cancel police attendance, and he pretended to comply.
6 The appellant returned to his vehicle and sat in the driver's seat for around five to 10 minutes before two police officers arrived at the 7-Eleven. Both members were wearing high-visibility police uniforms with associated technical equipment. They spoke to the staff member and then approached the appellant.
7 As they approached, the appellant started the engine, reversed the vehicle and attempted to leave the service station. He stopped at the exit, waiting for traffic to clear along Pascoe Vale Road. Police approached the vehicle again, yelling, 'Police, stop the car, I need to talk to you.' The appellant drove the vehicle approximately 25 metres along Pascoe Vale Road but could not travel further due to other, stationary vehicles. Police again approached the vehicle from the footpath and yelled numerous times, 'Police, stop the car, I need to talk to you.' The appellant replied, 'Why? What the fuck do you want me for?', before driving off.
8 As at 11 May 2018, the appellant was unlicensed, his licence having expired on 17 October 2013. The vehicle was also unregistered. (Summary charges 12, 27 and 28 - Driving unlicensed, failing to stop at police request and driving an unregistered vehicle.)
9 Apparently, some time later, the appellant returned to the service station and paid an attendant $100 in satisfaction of his petrol debt. No charges were before the judge relating either to theft of the petrol or whatever it was that the appellant had had under his shirt.
10 On 14 May 2018 at approximately 9:20 pm, the appellant drove his vehicle while unlicensed into the Coles Express on Bell Street, Coburg and filled it with petrol to the value of $119.63. He then re-entered the vehicle and left the service station without making any attempt to pay for the fuel. (Charge 1 - Theft; Summary charges 13 and 15 - Driving unlicensed, committing an indictable offence while on bail.) He was bailed to appear before the Sunshine Magistrates' Court on 8 August 2018 in relation to these charges.
11 On 15 May 2018 at approximately 10:30 am, police observed the appellant parking an unregistered vehicle in the middle of Marshall Road, Airport West. He was still without a licence. The vehicle was facing in an easterly direction. The appellant exited the vehicle and attempted to push it backwards (in a westerly direction) on Marshall Road.
12 A little while later, at approximately 10:40 am, a number of members of the police Special Operations Group ('SOG'), drove an unmarked police vehicle west along Marshall Road, parking parallel to the appellant's vehicle. The applicant was standing on Marshall Road, next to the open driver's door.
13 Four SOG members exited the unmarked police vehicle and identified themselves as police by saying, 'Police, don't move.' The appellant entered his vehicle and drove off quickly. At this point the SOG members were beside the appellant's vehicle and attempting to open the doors. They were forced to jump back from the vehicle as it took off.
14 A second unmarked police vehicle operated by two SOG members was also parked on Marshall Road. The driver of this police vehicle activated the lights and sirens. The appellant veered to the wrong side of the road, colliding with the front passenger side of the police vehicle, causing minimal damage, and then hit another car which was parked on the side of the road. The appellant continued driving at high speed and turned left onto Louis Street. The police did not pursue the appellant due to the erratic nature of his driving. (Charge 2 - Aggravated offence of recklessly exposing an emergency worker to risk by driving.)
15 Between 10:44 am and approximately 12:30 pm, the appellant remained intermittently under police surveillance. The appellant was observed to run numerous red lights, exceed speed limits, drive on the wrong side of the road and perform an illegal U-turn. His driving was protracted, erratic and extraordinarily dangerous to other road users. (Charge 3 - Conduct endangering persons; Summary charges 16, 24 and 31 - Driving unlicensed, committing an indictable offence while on bail and driving an unregistered vehicle.)
16 At 12:07 pm, the appellant called emergency services twice and also contacted the Moonee Ponds police station. During his call to the Moonee Ponds police station the appellant told Constable Gasevski that 'police with machine guns were after [him]', and asked, 'Why are police after me? I don't know what I've done.'
17 At 12:22 pm, Acting Detective Sergeant Kahlon telephoned the appellant to arrange for him to surrender himself to police. He directed the appellant to park his vehicle in the carpark of the Moonee Ponds police station, exit the vehicle and lay down on the ground with his hands visible as he waited for the police. The appellant arrived at the carpark in a car with fraudulent number plates (registration WX1 188) at approximately 12:40 pm, but remained in the driver's seat with the car door open and the engine running.
18 Acting Detective Sergeant Kahlon attempted to call the appellant on his mobile phone again, however, the appellant did not answer. Police approached the appellant's vehicle and said, 'Get out of the car, show me your hands and lie on the ground.' The appellant replied, 'What do you want me for?', and said, 'I am about to drive off.'
19 Acting Detective Sergeant Kahlon observed a kitchen knife within reach in the appellant's car. As police approached the vehicle, the appellant began to move the gearstick. The appellant was directed again to exit the vehicle and when he did not comply, police approached and pulled him out of the car. The appellant resisted and was forcibly placed on the ground. (Charge 17 - Resisting emergency workers.)
20 Police searched the vehicle under warrant and located the following items:
21 In his police interview, the appellant made the following admissions:
24 In relation to the arrest on 15 May 2018, the appellant denied that he was resisting arrest, and stated that he had been in the process of getting out of the vehicle when he was arrested.
25 During the plea hearing, the appellant admitted an extensive criminal history. We shall refer to this in some detail later in these reasons. In comprehensive written submissions, counsel for the appellant set out, inter alia, the following:
(a) After the 11 May 2018 offending, the appellant returned to the 7-Eleven store and paid the staff member $100.
(b) A context was sought to be placed around the 15 May 2018 offending: the appellant asserted that he had believed, initially, that the occupants of the van that approached his car were members of a rival gang who had recently assaulted him and who wished to do so again.
(c) The appellant has spent a significant portion of his time on remand in 23-hour lockdown as he has been a target of other prisoners.
(d) It was submitted on the appellant's behalf that his prospects for rehabilitation were guarded and largely dependent on his capacity to remain drug- and alcohol-free. He is motivated to do so, so it was submitted, by his recently becoming a parent. He will have significant support upon release from his family.
(e) The appellant pleaded guilty at an early stage, cooperated with police in the police interview and was entitled to a utilitarian discount for his willingness to facilitate the course of justice.
(f) Remorse and insight could be inferred from the appellant's plea of guilty and from the observations of Dr Scally.
27 The prosecutor urged the judge to reject the appellant's account that he did not initially appreciate that his pursuers on 15 May 2018 were police (charges 2 and 3), and submitted that charge 2 was a 'mid-range example of the offence'. The risk identified in that charge was attached to the danger presented to the four police officers on foot, together with the police still in the police vehicle. This elevated the 'seriousness of the risk ... above the lowest and ... [i]n fact into the mid-range'. Insofar as charge 3 was concerned, the information in the SPO was extracted from more comprehensive statements by surveillance operatives. The prosecutor reminded the judge that the appellant's forensic neuropsychologist found that a high risk of recidivism existed. She directed the judge to the appellant's prior convictions, which she described as 'relevant'.
28 The prosecutor also urged the judge to give weight to deterrence, denunciation and just punishment which recognises the difficulties police face in doing their job. She submitted that the prospects for rehabilitation were guarded at best. She further submitted that, absent the recent birth of the appellant's daughter, most of the prosocial supports said to be vital to his rehabilitation were in fact present during the years prior to the relevant offending.
29 The judge agreed with the respondent's assessment of the seriousness of charge 2 as 'mid-range', and assessed charge 3 as falling 'somewhere between mid-range and high' in the objective range of seriousness. His Honour did not make reference to the objective seriousness of any of the other offences. His Honour rejected the applicant's contention in relation to charge 3 that he thought he was being pursued by rival criminals. We agree with the judge on this aspect.
30 His Honour cited numerous mitigating factors that had impacted upon his sentencing. These included:
31 It was clear that the appellant's long history of prior convictions had a significant impact on the judge's exercise of his sentencing discretion. In his reasons, his Honour made repeated and pointed reference to the appellant's criminal history, and described him as a 'serial criminal pest'. The judge expressed concern about the sheer length and persistence of the appellant's offending - he noted that the appellant's prior convictions were 'not top category priors [but] they [mounted] up'. His Honour noted that the appellant was not before the Court to be re-sentenced for past offences, however he made it clear that this prolific history of offending, as much as the nature and relative seriousness of the appellant's instant offending, had impacted upon his weighting of different sentencing considerations. Given the appellant's history and the seriousness of the instant offences, considerations of general deterrence, specific deterrence, denunciation and punishment were called for.
32 The judge also considered that the defendant's prior offending alone (ie without any reference to the nature and seriousness of the instant offences) invoked the further consideration of protection of the community: 'In this case, there is a need, given your history, to consider ... the importance of protecting the community.'[4] This was particularly so due to the appellant's tally of convictions for assaulting police and driving endangering the public. In assessing the appellant's risk to the community, his Honour considered the risk of recidivism. His Honour quoted from Dr Scally's report detailing the appellant's substance use disorder, personality disorder, anxiety and ongoing trauma symptoms, and periods of heightened paranoia resulting from drug use to illustrate the appellant's 'higher risk' of re-offending, and to the community.
33 The appellant relies on one ground of appeal, which contended that the sentences on charges 1, 2 and 4 were manifestly excessive, and that the orders for cumulation made on charges 1, 3 and 4 were similarly manifestly excessive. In particular:
(a) The value of the theft the subject of charge 1 was $119.63. The sentence of two years' imprisonment is disproportionately high and out of step with current sentencing practices.
(b) Assuming charge 2 can be fairly characterised as 'mid-range', the sentence of three years' imprisonment is manifestly excessive when regard is had to the early plea of guilty and the appellant's personal circumstances.
(c) Charge 4 deals with the dishonest handling of a pair of stolen number plates. A sentence of two years' imprisonment is, like that imposed on charge 1, disproportionately high and out of step with current sentencing practices.
34 In the written response to the appellant's written case, the respondent observed that the offending took place over three separate dates, in the face of repeated police intervention, and endangered both police and members of the public. The appellant has an appalling prior criminal history with scores of relevant prior convictions. He was unlicensed and on bail at the times of offending. Protection of the community loomed large as a relevant sentencing factor. Thus it was submitted that the overall sentence imposed was not wholly outside the available range. In these submissions the respondent contended that the sentences imposed on charges 1 and 4 may appear steep but were within range given the appellant's prior convictions for theft, handling stolen goods and similar offences. The respondent further submitted that the value of the property stolen is not the sole indicator of the seriousness of the offence of theft, and that handling stolen goods is in itself a serious offence. The characterisation of charge 2 as mid-range offending was appropriate, and that the sentence imposed was 30% of the maximum reflected that characterisation. There were six victims who were the subject of charge 2, and the offence was aggravated by damage being caused to a police vehicle after the appellant had veered onto the wrong side of the road.
35 In the written response, the respondent also contended that the cumulation was not manifestly excessive, pointing out that:
36 On the day before the hearing of the appeal, the respondent changed its previously expressed position and advised that it intended to concede that sentences imposed on charges 1 and 4 were manifestly excessive. At the oral hearing of this matter, Mr Bourke for the respondent also conceded that cumulation would also need to be adjusted to reflect the concessions made on charges 1 and 4.
37 We will summarise as briefly as possible the appellant's prior criminal history. He has regularly offended since adolescence. He has spent long periods imprisoned since 1999. As best we can calculate, the appellant has been dealt with, over the years, on 91 occasions for theft, 16 occasions for theft of a motor vehicle, 11 occasions for handling, receiving or disposing of stolen goods, two occasions for dishonestly receiving stolen goods, and on six occasions for dealing in property the suspected proceeds of crime. The appellant has a dreadful driving record, including at least eight convictions for driving in a manner or at a speed dangerous to the public, as well as one for reckless conduct endangering life. He has numerous Firearms Act convictions, numerous burglary convictions and at least 11 for resisting or assaulting police. The judge was entitled to feel a sense of exasperation with the appellant.
38 Despite this atrocious criminal record, the appellant must be sentenced according to law. He did not fall to be punished a second time for his previous offending. His appalling prior criminal history was highly relevant to a number of sentencing considerations, including the assessment of the appellant's character, specific deterrence, general deterrence and protection of the community.[6] However, he fell to be punished for the offences committed and the impact of his prior convictions must be limited by what is a proportionate penalty to the offence under consideration. Whilst a 'continuing attitude of disobedience of the law'[7] can readily be distilled from the appellant's criminal history and will inform considerations of deterrence and protection of the community, it cannot lead to a penalty disproportionate to the gravity of the instant offending. Further, courts must approach the consideration of community protection with caution. A sentence cannot be lengthened beyond what is proportionate to the gravity of the offending merely to protect the community. As the majority of the High Court said in Veen [No 2]:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[8]
39 In our view, the term of imprisonment of two years imposed for charge 4 (dishonestly handling stolen number plates) is disproportionate to the objective gravity of that offence. We have further concluded that a sentence of two years' imprisonment on charge 1 (theft of petrol to the value of $119.63) is also disproportionately heavy. Each is wholly outside the range of sentences reasonably available for this offending.[9] No elaborate explanations for these conclusions are necessary.[10]
40 In written submissions, the respondent submitted that the value of the property stolen is 'not the sole indicator of the seriousness of the offence of theft'. This is strictly correct. Other considerations may include: the circumstances of the victim; the impact of the offending; and the nature of the stolen goods - but in our view the value of the stolen property remains, in this case, the single most important factor in the evaluation of the objective gravity of the offending. Similarly, while dishonestly handling stolen goods is a serious offence, the value of the goods handled will be powerfully relevant to an assessment of the objective gravity, and is so in this case.
41 It follows that these sentences are wholly outside the range of sentences reasonably available to his Honour in the exercise of his sentencing discretion. The Crown's concessions as to the manifest excess of the sentences imposed on charges 1 and 4 were well made. They are manifestly excessive and the sentencing discretion is reopened.
42 It will be recalled that as part of ground 1 the appellant also contended that the sentence imposed on charge 2 (placing emergency workers at risk of their safety) was manifestly excessive. We are not satisfied that this aspect of the appellant's contentions has been established.
43 The offence of recklessly placing emergency workers at risk of their safety and its aggravated form[11] have only recently been incorporated into the Crimes Act 1958[12] and have not yet been considered in sufficient numbers to build up a sentencing profile. We understand that this is the first occasion that this Court has had to consider this offence in a sentencing context. The aggravated offence carries with it a maximum sentence of 10 years' imprisonment. Whilst judges must exercise caution when characterising offending as falling within a 'range' of seriousness,[13] in our view there is no error in the judge's characterisation of this offence as 'mid-range'. We consider his sentence of three years well within the range available to his Honour, and in all the circumstances moderate. While the appellant's appalling prior driving history cannot make the offence more serious than it is, the sentencing purposes of community protection, denunciation and deterrence must weigh heavily against him.
44 We have adjusted the orders for cumulation to reflect the individual adjustment of sentences on charges 1 and 4, and have also adjusted cumulation on charge 3. We have done so to give appropriate recognition to the principle of totality.
45 We propose to allow the appeal against sentence. We shall re-sentence the applicant in line with the table below:
Aggravated Reckless Exposure of Emergency Workers to Risk by Driving
(s 18(1)(a) Road Safety Act 1958)
(s 30B Bail Act 1977)
(s 18(1)(a) Road Safety Act 1958)
(s 51(2) Summary Offences Act 1966)
(s 6(1) Control of Weapons Act 1990)
(s 30B Bail Act 1977)
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Section 6AAA Statement:
6 years with a non-parole period of 4 years and 6 months
On Charge 2 - Driver Licence/s cancelled and disqualified for 24 months
On Charge 27 - Driver Licence/s cancelled and disqualified for 12 months
46 The total effective sentence will be four years and seven months' imprisonment, with a minimum term to be served before parole of three years and four months. We will declare pre-sentence detention to be 841 days.
[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
[6] See Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ) ('Veen [No 2]'); Weininger v The Queen (2003) 212 CLR 629, 640 [32] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[7] Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477.
[8] Ibid 473 (Mason CJ, Brennan, Dawson and Toohey JJ).
[9] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[10] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).
[11] Crimes Act 1958 ss 317AE and 317AF.
[12] Inserted by Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017.
[13] See DPP v Weybury [2018] VSCA 120, where it was held that the characterisation of offending in terms of a 'range' was 'undesirable': at [33]-[36] (Maxwell P and Hargrave JA).
Nelson
The Queen [2020] VSCA 219
(2000) 202 CLR 321
(2007) 16 VR 269
(2003) 212 CLR 629
(1988) 164 CLR 465
(2011) 32 VR 361