R v Alashkar; R v Tayar [2007] VSCA 182

Court of Appeal (Vic)|2007-09-06|Before: VINCENT, REDLICH and KELLAM JJA

SENTENCE - Whether sentence manifestly excessive - Re-offending while on parole - No action taken by Parole Board by time of sentencing - Whether evidence of subsequent cancellation of parole admissible as "fresh evidence" on appeal - Totality principle relevant where Parole Board has cancelled parole after sentencing - Consideration of totality principle requires regard to be had to the legislative intention of s 16(3B) of the Sentencing Act 1991 - Appeal dismissed.

**1 Both current appeals are concerned with sentences which were imposed before the Parole Board had determined to cancel orders for parole made in relation to earlier sentences imposed upon the respective appellants. The primary question which arises in each case is whether this court may now take into account the additional period of incarceration to which the appellant has become subject, and if it may do so, whether it considers, having regard to the principle of totality, that the sentence imposed below should be varied to avoid a miscarriage of justice. A second question, which arises as a consequence of the order pronounced in Tayar's case, is whether the sentencing judge can make an order for cumulation or concurrency pursuant to s 16(3B) of the Sentencing Act 1991 in circumstances where parole has not been cancelled.

2 In R v Piacentino[1] it was held that where an offence was committed whilst the offender was on parole so that its commission constituted a breach of parole but at the time at which sentence was imposed no determination had been made by the Parole Board, the sentencing judge could not take into account the possibility that the offender might have been required to serve the balance of the head sentence earlier fixed. By contrast, where at the time of sentence for the offence which constitutes the breach of parole, the parole board has taken action and cancelled the parole, the sentencing judge is bound to have regard to the period which the offender may be required to serve in custody. The sentencing judge is thus able to give effect to the sentencing principle of totality as discussed in R v Hunter[2] and applied in Piacentino.

3 In each appeal it is not in issue that at the time of the commission of the offences for which the appellants were sentenced, each appellant was on parole, the offences constituted a breach of parole, the appellants' plea of guilty constituted evidence of that breach, that from that time each appellant was at risk of having his parole cancelled, and that the Parole Board cancelled each appellant's parole some time after the imposition of the sentences.

4 Counsel for both appellants submit that the cancellation of parole and the consequent liability to serve the outstanding portion of the earlier sentence constitute "fresh evidence" in accordance with the established principles set out in R v Duy Duc Nguyen[3] as follows:**

"(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the appellant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice." (Footnotes omitted)

They argue that, for the purposes of the fresh evidence rule, the facts which were in existence at the time of the sentence were: first, that the offender's parole had been breached; and secondly, there was a risk of his parole being cancelled as a result. It is submitted that at that stage in each case the significance of breach of parole was not known as there was no more than a risk that the parole order would be cancelled nor was it known what period the appellants might be required to serve. That, it is said, has now materialised into a certainty. It is submitted further, that at the time of sentence the breach, and the risk that the appellants would be required to serve an additional period of incarceration by reason thereof, could not be taken into account as a matter of law.[4] These were not cases of a "working out" of facts which were known and taken into account by the sentencing judge.[5] Accordingly counsel contend that this court should now take the effect of cancellation into account, and applying the principle of totality, should impose lower sentences in the same way as a sentencing court would have been required to do, had the cancellations occurred prior to the time that the appellants fell to be sentenced for the present offences.[6]

**5 Counsel for the Director, however, submits that evidence of the cancellation of the earlier parole order and its consequence does not fall within the "fresh evidence" rule and should not be received on appeal as it does not relate to a fact which could have been taken into account by the sentencing judge. He argues that the consequence of this court's decision in Piacentino is that sentencing judges are not permitted to have regard to the fact that persons such as the appellants are at risk of having to serve the remainder of their parole periods. Accordingly, he contends that there was no fact relevant to sentencing which was in existence at the time of sentence or one which could take on a new significance in light of fresh evidence. Rather, counsel submits, the revocation of parole is a matter arising after sentence which can be taken into account only by the executive in the exercise of its prerogative of mercy, or by this court in the exercise of its residual discretion.

6 In our view, the primary submission made on behalf of the Director is misconceived. First, Piacentino which gives effect to s 5(2AA) of the Sentencing Act also reflects the principle that a sentencing judge cannot take account of a risk that cannot be evaluated by the sentencing judge at the time of sentence.[7] Secondly, authority indicates that fresh evidence relating to a sentencing factor may be admissible on appeal even where that factor was not 'capable' of being taken into account in the court below. In the case of R v Eliasen,[8] the appellant was awaiting the results of an HIV test when he was originally sentenced. The sentencing judge was informed of this and made reference to it in his sentencing remarks, without stating that he had taken the matter into account. The appellant argued that the judge had erred in law in failing to have regard to the greater burden of incarceration on the appellant as a result of his condition. Crockett J, with the concurrence of McGarvie and Phillips JJ, considered it 'perfectly plain' that the sentencing judge had made no such error[9] because, we interpolate, no regard could have been had to a medical condition from which the appellant may not have been suffering at the time of sentence. The court concluded that the fresh evidence of the appellant's diagnosis was admissible on appeal, and cited with approval the following passage from King CJ's judgment in R v Smith:**

"it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence."[10]

**7 Crockett J noted that the Court could 'readily infer' that the appellant had AIDS at the time the sentence was imposed in the Court below.[11] We reject the contention that no inference about a fact in existence at the time of sentencing could be drawn in the cases now before the Court. In our view, in a situation in which the present appellants' parole orders had not been cancelled at the time they were sentenced, Eliasen's case remains an analogous one. Indisputably, each had breached his parole, and when sentenced each was subject to the risk that the parole order would be cancelled. There is no relevant distinction between this kind of fact and the fact of the appellant's undiagnosed illness as in Eliasen. In both sets of circumstances the Court below was not in a position to take the matters into account for want of enough information. That is to say, an offender awaiting the results of a medical test at the time of sentencing is in a relevantly similar position to an offender awaiting a determination by the Parole Board with respect to the cancellation of parole. Both cases depend on future outcomes, which may require the imposition of a lesser sentence when the principle of totality is applied.

8 Another analogous circumstance is where at the time of sentence, the property of the offender is the subject of possible forfeiture because of an extant application but there is no sound way that the sentencing judge can evaluate the risk and extent of any likely forfeiture. In a judgment published today by a differently constituted Court,[12] it was held that where an offender's property was forfeited after the offender was sentenced,[13] evidence of the forfeiture was admitted on appeal as fresh evidence as it showed the true significance of the risk of forfeiture which existed at the time of sentence. In that case, the Crown did not submit that at the time of sentencing there was no "fact in existence" which would justify the admission of fresh evidence.

9 Counsel for the respondent also contends that to admit evidence of the cancellation of parole would greatly enlarge the scope of the fresh evidence rule so that it could hereafter be invoked whenever circumstances have changed after the original sentence. However, as will be apparent from Eliasen's case and the principles summarised in Duc Nguyen, we consider that the present cases do not involve any expansion of the fresh evidence rule. It remains the law that evidence of events occurring after sentence has been handed down are not admissible unless they can be said to throw light on a circumstance which existed at the time of sentence.[14] Counsel for the Director referred to the likely increase in applications of this kind which would come before this Court as a result of the combined consequences of the decision in Piacentino and a decision that the fresh evidence rule would apply in these circumstances. This eventuality would not be a sound basis upon which to restrict the application of the rule. It will be a matter for Parliament to decide whether the effect of the cancellation of an offender's parole on the sentence already imposed should be considered by this court on appeal, or whether the offender should have a right to apply for reconsideration of his sentence by the judge, if available, or the court which sentenced the offender. In our view the sensible course would be to have the matter referred to the sentencing judge or to the court which sentenced the offender.

10 It is submitted correctly on the appellants' behalf that the interests of justice would not be served if this court were unable to take the additional periods of custody to which they are now subject into account so that the principle of totality could be applied to all of the sentences being served by them.[15] To deny the appellants such a right would also result in unfairness and inconsistency in the sentencing process. It would mean that offenders who were sentenced after their parole had been cancelled could benefit from the application of the principle of totality whilst those sentenced before their parole was cancelled would be denied its operation.

11 In Piacentino, Eames JA gave sound reasons why the potential for this kind of unfairness should not be overstated.[16] Nevertheless, this risk of unfairness led counsel for the Director to concede that the court had a residual discretion to take such a matter into account in preventing an obvious injustice which would otherwise occur. He submits that the evidence of the cancellation of parole and the consequences thereof should be received and considered, but only in the context of the exercise of the residual discretion to avoid what would otherwise be an inherent unfairness.

12 We are of the view that the cancellation of each appellant's parole and the consequences thereof do constitute fresh evidence which this court should receive. That evidence establishes the true significance of each appellant's breach of parole. In these circumstances it is unnecessary to consider whether these appeals should be the subject of the exercise of the residual discretion reposed in this Court.

13 It remains to consider the effect of the fresh evidence and whether the sentences imposed should be varied in the light of that evidence. Before considering each appellant's circumstances it is convenient to deal with a further argument advanced in the appeal of Tayar.

14 Upon the hearing of the appeal counsel for the appellant Tayar was granted leave to add a ground of appeal under which it is alleged that the sentencing judge fell into error in failing to consider whether there were "exceptional circumstances" under s16(3B) of the Sentencing Act before making an order that the sentences he imposed were to be served cumulatively upon any sentence that the appellant "may be required to serve" by reason of breach of parole. He submits that even though the appellant's parole had not been cancelled at the time of sentencing, the sentencing judge was obliged to consider the order to be made pursuant to s16(3B). It is submitted that the reasoning of this court in Hunter applies regardless of whether or not parole had been cancelled at the time of sentencing. Counsel for the Director submits that as the parole had not been cancelled the sentencing judge was bound to make an order for cumulation. Both parties have wrongly assumed that it was open to the sentencing judge to make an order pursuant to s 16(3B).

15 Section 16(3B) of the Sentencing Act is invoked when persons who are on parole re-offend, abrogating the rule established by s 16(1) Sentencing Act that generally sentences are to be served concurrently.[17] The section provides that unless otherwise directed by the court because of the existence of exceptional circumstances, every term of imprisonment imposed on a person for an offence committed whilst released on parole:**

"must ... be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order."

**16 The amendment to s 16(3B) enacted in 1997 reflects a deliberate return to uncompleted sentences of imprisonment being served cumulatively in the absence of exceptional circumstances.[18] Prior to Piacentino, the court was required to have regard to the application of s 16(3B) when persons who are on parole commit further offences, first by determining if exceptional circumstances exist and secondly, if they do not, by ordering cumulation of any term of imprisonment which may have to be to be served upon cancellation of parole.

17 The circumstances in the case of Hunter differed from those in this case in that in the case of Hunter the parole order had been cancelled prior to sentencing and the sentencing judge had not considered the application of s 16(3B). The sentencing approach discussed in Hunter was not concerned with circumstances where the parole had not been cancelled at the time of sentencing of the appellant. In such cases no order can be made pursuant to s.16(3B). With the overruling of Orphanides by Piacentino, and for the reasons stated in Piacentino, the possibility of the Parole Board in the future cancelling parole and requiring the offender to serve an additional period of incarceration may not be taken into account in any manner. As Piacentino states, s 5(2AA) of the Sentencing Act does not permit a sentencing judge, in sentencing an offender, to have regard to any possible future decision of the Parole Board which may affect the length of time the offender will have to spend in custody. Where parole has not yet been cancelled, the making of an order pursuant to s 16(3B) for cumulation or concurrency of a new sentence on any period of imprisonment which may be required to be served on a future cancellation of a parole order would offend s 5(2AA) as the sentencing judge would be having regard to the possible effect of any executive action on the part of the Parole Board to cancel parole.

18 If the Parole Board has cancelled parole prior to sentencing by a court in relation to offences committed on parole, the circumstances are quite different. A sentencing judge must then consider the sentence to be served upon cancellation of parole when determining the appropriate sentence to be imposed for offences committed by an offender while the offender was released on parole. This must be done for the purpose of considering whether there exist exceptional circumstances which would justify moderating the order for cumulation which would otherwise have to be made.

19 It was readily acknowledged by counsel for the appellant before us that it had not been suggested on the plea nor could it now be suggested that at the time of sentence any exceptional circumstances existed which should have led to a different order being pronounced. There being no suggestion that exceptional circumstances existed, it was not necessary for the sentencing judge to recite that fact before proceeding to make an order. For these reasons the submission is without substance.

20 With these principles in mind we turn to consider the circumstances of each appellant's appeal.**

**21 On 24 February 2006, the appellant pleaded guilty before the County Court at Melbourne, to a single count of robbery. At the time of the commission of the offence he was on parole for other offences. That parole period was cancelled after the handing down of the sentence presently under consideration.

22 He also admitted 37 prior convictions arising from nine court appearances between 17 February 1992 and 12 November 2002. They related to offences of theft, burglary, the possession of a prescribed weapon, the possession of a regulated weapon, attempted robbery, the handling of stolen goods and deception. Of particular importance in the present context was his conviction on five counts of armed robbery in the County Court on 16 June 2000, for which a sentence of five years' imprisonment with a non-parole period of 30 months was imposed.

23 After hearing a plea in mitigation of penalty, the sentencing judge ordered that the appellant serve a term of five years' imprisonment, in respect of which a non-parole period of three years was fixed.

24 Having been granted leave to do so, the appellant now appeals against his sentence upon the grounds that:**

2. The learned sentencing judge failed to take into account the effect of s 16(3B) of the Sentencing Act 1991.[19]
3. The learned sentencing judge erred by finding or having regard to evidence that a knife was with the other articles identified as coming from the store (paragraph [5]). The inference to be drawn from this evidence was that the appellant had the knife in his possession at the time of the offence, which, if true, would have rendered the appellant liable to conviction for a more serious offence.
4. The appellant seeks to lead fresh evidence, in the form of affidavit material, as to the action taken by the Adult Parole Board in respect to the breached parole period, so as to demonstrate that a lesser sentence should now be passed."[20]

**25 At approximately 6.15 am on 3 October 2004, the appellant entered a 7-Eleven store situated in Station Street, Fairfield. He was wearing a black jacket, black pants and black dress shoes. His face was covered with what appeared to be a piece of yellow coloured clothing and he had some material or another piece of clothing draped over one of his arms.

26 The attendant on duty was unpacking newspapers outside the console area when the appellant approached him, pointing his cloth-covered arm in his direction, as if he had a weapon, and demanding that the attendant open the cash register and give him money. Unsurprisingly, the victim was frightened and acceded to his demands.

27 The appellant took all the notes from the register and placed them in a plastic bag. He then demanded cigarettes which the attendant placed into plastic bags. The appellant made a further demand for cash, saying, "Where's all the money? Where's all the money?" all the while making gestures with the hand hidden by the draped material. The attendant gave him coins from a change box, coins in small plastic bags and a cloth bag containing cash.

28 The appellant took the money and cigarettes and ran from the premises. As he did so, he was observed by a witness, who immediately rang the police. A short while later the appellant saw this person watching him and gestured that he had some sort of weapon and mouthed the words, "Piss off". The appellant was arrested not long afterwards in the rear yard of a nearby house. The money and cigarettes were recovered and a knife was located nearby. Fifty five packets of cigarettes valued at $761.00 and a total amount of $685.00 was stolen.

**30 In support of this ground, it is submitted by counsel for the appellant that the judge fell into error in having regard to evidence that a knife was found with other articles identified as having come from the store.

31 The impugned finding was made in paragraph [5] of his sentencing remarks which reads:**

"Although a knife was found with other articles which had been identified as coming from the store, it is the Crown case in this plea that you pretended to have a knife or some other implement in your possession in order to intimidate the operator to do your bidding."

"I accept, however, for the purpose of this plea, that you did not have a knife in your possession but what occurred was clearly a demand accompanied by at least an implied threat of violence to your victim if he did not cooperate."

His Honour had earlier enquired in the course of the hearing:

"HIS HONOUR: How should I use the evidence that the witness had the strong impression that the offender had a weapon? He's not been charged with armed robbery, how should I make use of that material?

PROSECUTOR: The Crown puts the case on this basis: that he did not have an object, that his hand was used underneath the material to infer to the console operator that he did have a weapon. That's how the Crown puts its case, your Honour.

PROSECUTOR: Thank you, your Honour. In my submission that indication from the prosecution is the appropriate way that your Honour can use that material.

HIS HONOUR: He was pretending to have it. It seems to me it's an aggravating factor, in a similar way of someone raising a clenched fist and saying, "Unless you give me your money I'll smash your head in" sort of thing.

PROSECUTOR: It's aggravating because it creates that impression and is intended to create that impression, but obviously it's a lesser offence because you don't actually have - - -

HIS HONOUR: He's only charged with a lesser offence, you couldn't be convicted of anything else.

PROSECUTOR: On the count of robbery it's an aggravating circumstance that it was an impression that he was creating that he was armed and that clearly creates greater fear in the victim.

**32 It is certainly unsurprising that the sentencing judge appears to have contemplated the possibility that the appellant may indeed have been armed with the knife located by the police, but he made it clear that sentence was not being imposed on that basis. He stated specifically that for sentencing purposes he accepted that the appellant was not armed.

34 In the course of the plea, counsel appearing on behalf of the appellant drew the sentencing judge's attention to:

(d) his criminal history and the escalation of offending after 1999 as a consequence of that drug addiction.

(e) the development of a gambling problem by October 2004;

(f) the courses that he had undertaken whilst in custody;

(g) the presence of family and other support for him on release;

(i) the lengthy period of time that the appellant had been in custody following his arrest;

35 Although his Honour addressed these considerations very briefly in his sentencing remarks, and in what could be described as a global fashion, there is no reason to suppose that he may not have taken them into account appropriately. However he was mindful of the serious nature of the conduct in which the appellant had engaged on this occasion and the fact that he had;

"prior convictions for six similar types of offences as well as other prior convictions for criminal conduct."

**36 There is no need to recite any of the many statements by this Court concerning the gravity with which the robbery of persons who are sometimes termed "soft targets" is viewed.[21] It is both a reality and a necessity in our community for many people to work in isolated situations that render them vulnerable to criminal attack. Taxi drivers, service station and convenience store attendants, and person operating small family businesses, such as milk bars, spring readily to mind in this context. They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term.[22] The explanation that the perpetrator was in need of money for drugs is highly unlikely to possess appeal to a terrified and recovering victim and only limited weight can be given to it as a mitigatory consideration in such cases.[23]

37 In the circumstances of the present matter, we consider that the proper exercise of sentencing discretion required the imposition of a substantial term of imprisonment, and are far from persuaded that that handed down was not available to a sentencing judge.**

**38 That leaves only the question of whether the fresh evidence of the cancellation of parole leads to a conclusion that in the residual discretion of the Court the sentence now to be served by the appellant should be varied. The evidence is that the Parole Board cancelled the appellant's parole on 22 March 2006 in consequence of the conviction and sentences the subject of this appeal. The effect of that cancellation is that the head sentence is now to expire on 16 December 2011. In the circumstances before us the totality principle requires the Court to have regard to all sentences which the prisoner is now undergoing.[24] The principle requires the Court to evaluate the overall criminality involved in all the offences for which the prisoner is undergoing sentence and to ensure that there is appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, including circumstances whereby the sentence currently being served derives from a breach of parole.[25]

39 In the circumstances before us the appellant is now aged 34 years. In June 2000 he was convicted of five counts of armed robbery and sentenced to five years' imprisonment with a non-parole period of 30 months. He was released on parole on 19 June 2002. On 12 November 2002 he was convicted of attempted robbery, unlawful assault and using a drug of dependence, heroin. He was sentenced to 12 months' imprisonment to be served cumulatively upon any period that the Parole Board might require him to serve. In consequence of this conviction his parole was cancelled on 15 January 2003. He was further released on parole on 18 May 2004 and committed the offences the subject of the present appeal on 3 October 2004. As stated above, on 24 February 2006 the appellant was sentenced to 5 years' imprisonment with a non parole period of 3 years. On 22 March 2006 the parole board cancelled his previous parole. The additional period of incarceration required to be served by reason of the cancellation of the parole order is 2 years 2 months and 21 days. The fact that the appellant has breached his parole on two occasions, with the result that his parole has been cancelled on two occasions, combined with the fact that the sentences for his convictions have been imposed cumulatively upon the period of imprisonment which he is required to serve upon the cancellation, now means that he has an effective head sentence to expire on 16 December 2011. He is eligible to be released on parole on 25 September 2007, but we must assume that he may be required to serve every day of his full sentence. The question is whether, taking into account the determination of the parole board, a sentence of 5 years' imprisonment with a non parole period of 3 years in all the circumstances, offends the principle of totality.

40 The consideration of that principle must take into account the obvious intention of s 16(3B) of the Sentencing Act that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed. In our view, taking that matter into account, together with all other relevant circumstances including the length of that sentence, the sentence imposed cannot be said to be an unjust or an inappropriate measure of the total criminality involved. The appeal should be dismissed.**

**41 The appellant pleaded guilty in the County Court at Melbourne, on 20 September 2006, to one count of armed robbery (count 1) and two counts of common law assault (counts 2 and 3).

42 He admitted 61 prior convictions from 11 court appearances between 23 June 1998 and 7 May 2004. These included various offences for robbery, burglary, theft, assault, various motoring offences, failing to answer bail and, on 1 April 2004, armed robbery and arson. At the time those offences were committed, the appellant was on parole.

43 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 10 October 2006, imposed the following sentences:**

On count 1 - five years and six months' imprisonment;

His Honour directed that three months of the sentences imposed on each of counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of six years' imprisonment in respect of which a non-parole period of four years was fixed.

Having been granted leave to do so, on 16 March 2007, he now seeks to appeal against the sentences imposed upon him on the grounds that -

The learned sentencing judge erred in failing to avoid a situation whereby the appellant suffered "double punishment".
That in light of fresh evidence relating to the cancellation of the appellant's parole the sentencing discretion should be re-opened.

**44 The background facts in the appeal of Tayar may be stated briefly. On Monday 21 November 2005 the appellant and a co-offender, Homsi, drove to the Watsonia Post Office which they entered. At the time of entry they were wearing gardening gloves, sunglasses, canvas hats and overalls. Inside the Post Office at the time of their entry were two Post Office employees, Michael Elsmore and Helen Nazr. In addition there was an 11 year old boy who was in the Post Office as a customer. The appellant approached Helen Nazr and demanded that she provide him with cash. He said "put all your cash in a bag and there won't be any trouble". At the time of saying this he produced a knife which was approximately 20 to 25 centimetres in length. Ms Nazr refused to comply with these demands and the appellant waved the knife in her vicinity and threatened to jump over the counter whilst doing so. She continued to refuse to hand over any money. Subsequently he did jump over the counter thrusting the knife towards Ms Nazr's chest and yelling at her. Those circumstances are the subject of count 3 on the presentment, a charge of common law assault of Ms Nazr. As this was occurring the appellant's co-offender one Homsi produced a similar knife, and told the other Post Office employee, Mr Elsmore to empty his cash drawers. The appellant took money from one open drawer and jumped back over the counter. Those circumstances are the factual basis of count 1, a count of armed robbery of Mr Elsmore.

45 In the course of the armed robbery the 11 year old boy who was present in the Post Office had a knife pointed towards him. He was in such fear that he urinated in his pants. Those circumstances are the factual basis upon which count 2 a charge of common assault was alleged. As the appellant and Homsi made their escape from the Post Office a witness observed the registration number of the car they were driving and soon thereafter police intercepted the car. A total of $7000.85 was stolen.

46 Before turning to the manner in which the appeal of Tayar should be resolved, it is necessary to refer to a further ground raised by the appellant Tayar.**

Ground 1. The sentencing judge erred in failing to avoid a situation whereby the appellant suffered "double punishment"

47 It is contended by counsel for the appellant that it is "highly unusual" for counts of assault to be included in a plea presentment where those counts involve the same actions and demands as those made in the commission of an armed robbery. It is argued that an element of the armed robbery involved the appellant using force, or putting a person in fear that that person will be subjected to force. It is argued that in all the circumstances, by imposing sentences upon the two counts of common assault, and in particular by directing part cumulation of each of those sentences, the sentencing judge imposed "double punishment". Counsel for the appellant relies upon Pearce v The Queen[26] in support of his argument that the sentencing judge "was required to avoid punishing the appellant twice for the same conduct". In that case, the appellant was indicted on a count of "maliciously inflicting grievous bodily harm" and on a separate count of breaking and entering a house and "while therein inflicting grievous bodily harm". It was clear in that case that a single act (i.e. the appellant's infliction of grievous bodily harm on his victim) was an element of each of the offences on the indictment. In their joint judgment McHugh, Hayne and Callinan JJ said:[27]

"The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics."

48 In the case under consideration by us, it cannot be said that the two assaults the subject of the separate counts of assault were part of a single act. In particular and in relation to count 2 involving the assault upon the 11 year old boy, the sentencing judge said:

"I propose to sentence you on the basis that when you entered the post office to commit the armed robbery your intention was, according to the scope of the arrangement you entered into with Homsi, to assault anyone in the post office, that is tellers, customers, to the extent that they would be placed in fear, in order for you to achieve your purpose, that is to steal money.

The greater number of the victims that were placed in fear of course is an aggravating feature of your criminal conduct and consequently to my mind allows that fact to be reflected by accumulation of sentences in respect of any persons assaulted over and above, of course, the assault, which is the necessary element of count 1, [of] the person who was robbed."

**49 On the material before his Honour it was clear that there was a separate and independent assault upon the young boy by one of the two accomplices. It was not part of the single act of the armed robbery of the Post Office employee Michael Elsmore. It was a separate and identifiable act.

50 Furthermore, and insofar as the second count of common assault is concerned, the evidence before his Honour was that after one of the Post Office employees, Helen Nazr, refused to comply with the demand of the appellant to put all of the cash in her drawer into a bag, the appellant threatened to come over the counter. He made this threat whilst waving the knife in her vicinity. He then jumped over the counter. When he did so he thrust the knife towards her chest and yelled at her. Thus there was a specific assault upon a separate victim other than the victim of the armed robbery.

51 It is apparent that his Honour, who is an extremely experienced criminal judge, was acutely aware of the issue now raised by this ground of appeal. In the course of submissions on the plea the prosecutor submitted:**

"It should not be forgotten your Honour that with respect to the presentment, there were three different victims and offences committed with respect to three different victims."

"That in the past, don't you remember, whilst they were bank robberies where you would have a team running, somebody would shoot out the camera and somebody would jump across the counter with the sawn-off shotgun and $10,000 or $11,000 would go and there would be one count of armed robbery, often. Here, I can remember one count of armed robbery on the presentment for the standard mode of armed robbery which is the same as Little John and Robin Hood committed 800 years ago, if they ever did it, but this one has got the assaults on it."

"Well that's right and in the end it is a question of the totality and proportionality, but your Honour in the case of Homsi, designed a sentence achieving that and a similar thing could be done here Your Honour."

52 In this regard it should be noted that Homsi had been previously sentenced by the sentencing judge on the same basis of one count of armed robbery and two counts of common assault. The judge responded to the prosecutor by saying:

"[The appellant's counsel] says if Pearce is right, I should have given Homsi his just desserts on the count of armed robbery and not tailored that to give an overall sentence of totality."

53 In circumstances whereby there were three separate victims and separate acts in relation to each of the three victims there is no basis to say that his Honour imposed "double punishment". Whilst it is true that had there been a single count of armed robbery on the presentment, his Honour would have been entitled to take into account the separate acts against separate victims as aggravating features of that offence, it is clear from his Honour's sentencing remarks that he did not treat those matters as being aggravating features of the armed robbery but treated them as separate matters allowing the factors of them being separate matters to be reflected by cumulation of sentences "over and above ... the assault, which is the necessary element of count 1, [of] the person who was robbed."[28] It might well be argued that it would have been better for the assault of Ms Nazr to have been relied upon by the prosecution as part of the totality of the circumstances of the armed robbery, rather than as a separate matter. However, the position before his Honour was that the presentment was filed as a "plea presentment" and the appellant raised no issue as to the nature of the presentment before pleading guilty to it. In our view it is apparent in all the circumstances that his Honour well understood the nature of the presentment and the factual basis upon which the plea was made before him and took care to ensure there was no double punishment. This ground is not established.

**54 We have already concluded that the cancellation of parole by the Board constitutes new evidence which should be received. The question now to be determined is whether the sentence imposed should be varied in the light of that evidence and in the exercise of our re-sentencing discretion. The appellant was convicted of armed robbery and arson on 1 April 2004 and was sentenced to four years' imprisonment with a non-parole period of two years' imprisonment. He was released on parole on 9 September 2005. The offences which resulted in the breach of parole and which are the subject of this appeal, were committed on 21 November 2005. As stated above, on 10 October 2006 the appellant was sentenced to a total of 6 years' imprisonment with a non parole period of 4 years. The effect of the cancellation of parole on 13 December 2006 is that the appellant's head sentence does not expire until 19 November 2013. The principal question to be determined in the exercise of our discretion is whether in all the circumstances the sentence which is now required to be served by the appellant, who is now 22 years of age, breaches the principle of totality.

55 The appellant was aged 20 years at the time of the offence. He committed the offence in company with an older co-offender who the sentencing judge considered was "perhaps the motivator" for the offending conduct of the appellant. There was evidence before his Honour that the appellant had a background of serious abuse and emotional neglect. He had become drug dependant and indeed was "significantly substance affected" at the time of the offence. There was some evidence before his Honour to the effect that the appellant had "matured" and developed some insight into his offending behaviour. Taking these matters into account, and notwithstanding the seriousness of the offending and the fact that the offence took place very soon after the appellant's release from parole on similar offences, we conclude that the effect of the cancellation of that parole results in a sentence that does not reflect the principle of totality appropriately. We consider that the appropriate sentences should be as follows:

56 We would direct that 3 months of the sentences imposed on each of counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on Count 1. This results in a total effective sentence of 5 years' imprisonment. We would direct that the appellant not be eligible for parole until he has served 3 years' imprisonment.

[4] As a result of this Court's decision in Piacentino.

[5] Cf R v McLachlan [2004] VSCA 87; (2004) 8 VR 403.

[6] See R v Hunter [2006] VSCA 129 [29].

[7] See [2007] VSCA 49, [140]-[142] (Nettle and Redlich JJA).

[12] R v McLeod [2007] VSCA 183.

[13] Pursuant to the Confiscation Act 1997 (Vic).

[14] See R v Babic [1998] 2 VR 79, 80-81 (Brooking JA).

[15] See generally R v Postiglione [1997] HCA 26; (1997) 189 CLR 295.

[16] [2007] VSCA 49, [75]-[76].

[18] Ibid [26]. See also R v Cowburn (1994) 74 A Crim R 385 which refers to prior amendments made in 1993 whereby violent and sexual offenders could be punished "more severely". See also R v Mantini [1998] 3 VR 340, 345-6 (Callaway JA) in terms of the intention of the amendments being to increase Total Effective Sentences.

[19] This ground was abandoned subsequent to the handing down of Piacentino on 23 March 2007.

[20] The appellant's full statement of grounds was amended by leave and granted by the Court on 15 January 2007.

[21] R v Kittikhoun [2004] VSCA 194; R v Lee [2006] VSCA 80.

[22] R v Cotry [2002] VSCA 13; R v Swingler [2001] VSCA 26.

[23] R v Orlikowski, (Unreported, Court of Appeal, Winneke P, Charles JA and Hampel AJA, 16 October 1997).

[24] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.

[25] R v Sullivan [2005] VSCA 286, [20].

At a glance

Court

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Judgment (120 paragraphs)

Cases Cited (3)