R v Aleksov [2003] VSCA 44

2. The appellant, who is now aged 30, pleaded guilty in the County Court to a presentment containing one count of armed robbery (count 1), one count of aggravated burglary (count 2), one count of common assault (count 3) and one count of robbery (count 4). The maximum custodial penalty for armed robbery and aggravated burglary is 25 years' imprisonment. For common assault it is 5 years' imprisonment and for robbery 15 years' imprisonment. The appellant admitted three findings of guilt and 105 previous convictions from 18 court appearances between February 1990 and December 1999. On the last such occasion he had been convicted of robbery and sentenced to three years' imprisonment, which was wholly suspended for an operational period of three years. That suspended sentence was breached on 31st October and 14th November 2000, when the appellant was found in possession of heroin, and the charge and summons arising from those breaches were before the court too. The four offences on the presentment were also committed within the operational period.

5. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant to five years' imprisonment on count 1, two years' imprisonment on count 2, twelve months' imprisonment on count 3 and three years' imprisonment on count 4. Her Honour ordered that six months of the sentence imposed on count 2 and twelve months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence, thus far, of six-and-a-half years' imprisonment. In relation to the breaches of the suspended sentence in October and November 2000 which her Honour had imposed, she ordered that the sentence of three years' imprisonment be wholly restored and "confirmed" that the restored sentence was to be served cumulatively upon that term of six-and-a-half years' imprisonment. That made a total effective sentence, all told, of nine-and-a-half years' imprisonment. A non-parole period of five-and-a-half years was fixed and a declaration made regarding pre-sentence detention.

8. Leave to appeal was granted by a single judge pursuant to s.582 of the Crimes Act 1958 on 11th October 2002. In doing so, his Honour observed that the "only possibility of argument on appeal" was that the judge should not have ordered that the whole of the restored sentence was to be served cumulatively. There was, he continued, an arguable ground that the discretion conferred by s.31(6)(b) of the Sentencing Act 1991 was not exercised at all or, if it was exercised, had miscarried. The sentencing judge adverted separately to s.31(5A) and (6)(b). She was aware of their terms. The word "confirmed" suggests to me that the discretion was exercised, but it is still necessary to consider whether it miscarried.

(a) in her application of s.31(6)(b) of the Sentencing Act 1991;

(b) in ordering that the whole of the restored suspended sentence be served cumulatively upon the other sentences;

(c) as to the extent of cumulation ordered in total.

3. The total effective sentence infringes totality.

4. The sentences on counts 1 and 4 are manifestly excessive."

21. Before turning to counsel's submissions I shall say something briefly about the facts on which the appellant was sentenced. It should be recorded that the two persons present at the commission of the armed robbery to which I am about to refer denied any involvement.

24. On the morning of 10th February 2001, Tan Van Tran, the victim of count 1, went to a McDonald's restaurant in Footscray. The appellant approached him and asked him what he was doing. Mr Tran said he was thinking of going to the pokies and the appellant offered him a lift. Mr Tran had seen the appellant in the Footscray area for several years. He accompanied the appellant to the car and they got into the back seat. In the front were the driver, who was the appellant's brother, and another man. They drove off down Gordon Street. The driver asked Mr Tran whether a necklace he was wearing was 9 carat or 18 carat gold. Mr Tran replied that it was 18 carat. The driver then turned into another street and parked the car, at which stage the appellant began to punch and elbow the victim and attempted to pull his necklace off. When Mr Tran attempted to escape he was prevented from doing so. The passenger got out of the car and jammed the car door against his leg. The appellant continued to punch him. The driver then attempted to remove the necklace using a screwdriver. When that did not work the appellant grabbed a knife from under the driver's seat and said to Mr Tran, "Show me how to take it off. If you don't take it off, I'll stab you." The victim then tried to undo the clip himself, while the appellant held the knife to his right side. The necklace was eventually removed and cash, a packet of cigarettes and a mobile phone were also taken. The appellant continued to punch Mr Tran when he said that he did not know the code for the mobile phone. Taking the victim's driver licence, the appellant read out his address and said that, if he talked to the police, the appellant would come and kill all his family. Mr Tran was then ejected from the car.

27. The offences the subject of counts 2, 3 and 4 took place on the afternoon of 24th February 2001. The victim of the first two offences was Charon Reyes, who operates a wholesale bakery business with her husband in Tottenham. At approximately 5.20 p.m. she was alone cleaning up the bakery, when she heard a noise from the front doors. As those doors were normally locked, she suspected that someone was trying to break in. She turned and found two men standing inside the bakery, one of them holding a knife which was pointed towards her. The man with the knife told her, in a threatening and angry voice, to be quiet and not to scream. The appellant was observed standing behind him, keeping a lookout and carrying a small square box which looked like a portable stereo. Seizing a moment when the man with the knife was off guard, Mrs Reyes hit him with the end of a broom. Both the appellant and the co-offender then left the premises and ran down Sunshine Road to escape.

30. The offence the subject of count 4 was committed a few minutes later. The appellant approached Brad Causon and his friend, both aged 13, who were riding their skateboards near the intersection of Sunshine Road and Dempster Street, Tottenham. Brad had a mobile phone. The appellant said, "Give me your phone or I'll cut your throat." He had his right hand underneath his tracksuit jacket to give the impression he was armed. The boy handed the phone over and the appellant then demanded $50. Brad said he only had $5, which the appellant took. In response to the boy's entreaties he then gave the phone back. Brad and his friend ran away and Brad rang the police.

33. It will also be as well to say something more about the appellant's previous court appearances. They were mainly for offences of dishonesty and included two convictions for robbery. As the learned judge observed, the appellant had received community-based orders, intensive correction orders and suspended sentences, most if not all of which appeared to have been breached. He had served terms of imprisonment on at least nine separate occasions. The efforts he has since made towards rehabilitation are to be taken into account in his favour, but such a record of recidivism cannot be overlooked. The appellant's offending has been drug related. As Dr Lester Walton remarked in his psychiatric report, it remains to be seen whether the appellant can follow through with his expressed determination not to offend again.

36. Mr Wraight adopted for the most part an outline of submissions that had been filed by previous counsel for the appellant. He developed those submissions and supplemented them. Turning first to grounds 2 and 3, he reminded us that, although counsel for the appellant on the plea had conceded that there were no exceptional circumstances making it unjust to restore the whole of the suspended term, he had submitted that the judge should take the principle of totality into account in determining how much of the suspended term should be served cumulatively. Mr Wraight submitted that her Honour erred in ordering that the restored sentence be served wholly cumulatively upon the other sentences that she had decided to impose. He advanced a number of contentions in support of that submission.

39. First, it was said that the contrast with the orders for partial cumulation that her Honour had made in relation to counts 2 and 4 on the presentment suggested that she considered that there was a very strong, perhaps an almost irrebuttable, presumption in favour of total cumulation of the restored suspended sentence, but, counsel submitted, that is not the case. Section 31(6)(b) establishes no more than a prima facie rule of the kind referred to in R. v. Lomax[1] and R. v. Mantini[2]. The principle of totality might afford a good reason for ordering at least some concurrency. Secondly, it was submitted, the principle of totality had not been applied, or had not been given due weight, in deciding to order total cumulation. In particular, it appeared, counsel said, that her Honour had not stood back and considered the total effective sentence in the manner described in the joint judgment in Mill v. R.[3] So, too - and this was counsel's third contention - there appeared to have been no consideration given to the express submission that had been made on behalf of the appellant on the plea that totality was applicable at that stage of the sentencing process and not only in considering the counts on the presentment. Fourthly, Mr Wraight referred to the unusual gap between the total effective sentence and the non-parole period as casting doubt on the manner in which the sentencing disposition had been arrived at. It may be, he suggested, that her Honour had overlooked that a non-parole period could be fixed in relation to a restored suspended sentence.[4] Finally on this branch of the case, counsel contended that, even if no specific error could be discerned in her Honour's approach, a total effective sentence of nine-and-a-half years' imprisonment over-represented the appellant's total criminality and undervalued factors in mitigation such as his plea at the committal stage, remorse, family support, relative youth (he was 26 at the time of the robbery the subject of the suspended sentence and 28 at the time of the offences on the presentment) and the courses and counselling that he had undertaken.

42. No separate argument was directed to ground 1 or to the total effective sentence of six-and-a-half years' imprisonment on the presentment but, under cover of ground 4, it was submitted that the sentences imposed on counts 1 and 4 were manifestly excessive. Again reliance was placed on factors in mitigation of the kind to which I have just referred. Particular emphasis was placed on the sentence imposed on count 4, which offence was said to be unpremeditated and not deserving of three years' imprisonment.

45. Mr Wraight's submissions on re-sentencing followed logically from the contentions he had advanced. He submitted that the sentences imposed on counts 1 and 4 should be reduced, that there should be only partial cumulation of the restored suspended sentence and that there should be a lesser non-parole period.

48. Mr Elston likewise addressed grounds 2 and 3 first before turning to ground 4 but, in relation to all three grounds, he emphasised the appellant's criminal history and the large number of lenient dispositions of which he had not taken advantage. He also reminded us of what the learned judge had described as "a spectacular breach" of the suspended sentence that she had imposed. (I take that to be a reference to the counts on the presentment rather than to the offences the subject of the charge and summons, but of course they too breached the suspended sentence and were properly taken into account in the way her Honour did.) Mr Elston acknowledged that totality had been referred to in the course of the plea, but, he submitted, it had not been overlooked by the judge, who had specifically referred to the principles of concurrency, cumulation, totality and proportionality. In the light of the escalation in the appellant's offending, total cumulation was, he submitted, the only reasonable disposition, but, if that be thought too bold a submission, at all events it was within her Honour's discretion.

51. Turning to ground 4, Mr Elston supported the sentences that had been imposed on counts 1 and 4. The facts relevant to the former demonstrated, he said, a violent armed robbery by the appellant, acting in company with two others, whilst holding a screwdriver and knife to the victim, threatening to stab him unless he cooperated. Mr Tran was severely traumatised by his experience. The value of the property stolen was approximately $2,500. As I have already said, and as counsel pointed out, the appellant made a parting threat that he would come and kill the victim's family if the victim complained to the police. The count of robbery (count 4) saw the appellant confront two 13-year-old children and make demands accompanied by a threat of serious and frightening violence. It was contested that the sentencing disposition or any part thereof was manifestly excessive, but, as I have explained, it is unnecessary to give separate consideration to ground 1.

54. I would uphold grounds 2 and 3. Section 31(6)(b) of the Sentencing Act provides only that, unless the court otherwise orders, the restored term of imprisonment is to be served cumulatively. It is, as Mr Wraight submitted, a prima facie rule of the kind explained in R. v. Mantini. It does not abrogate the principle of totality. It is unnecessary to say anything about other provisions which establish a rule that may be excluded only where there are exceptional circumstances or subsequently arising exceptional circumstances.[5] It is enough to say that s.31(6)(b) says "unless the court otherwise orders", unlike s.31(5A), which speaks of "exceptional circumstances which have arisen since the order suspending the sentence was made". The words "unless the court otherwise orders" are no different in effect from the words "unless otherwise directed by the court" in ss.6E and 16(1).

57. In my opinion, a sentence of nine-and-a-half years' imprisonment, made up of the six-and-a-half years' imprisonment in relation to the four offences on the presentment and the three years of the restored sentence, offends the principle of totality. Like manifest excess, that is often a matter of impression. One must sometimes be content to say, with respect, that one is satisfied that the learned judge fell into error, but the error is, perhaps, confirmed by the four-year gap between the head sentence and the non-parole period. That gap is unexplained by the appellant's prospects of rehabilitation or other relevant factors. On the contrary, her Honour observed that it was very difficult for the court to gauge the appellant's prospects of rehabilitation having regard to the significant escalation in offending conduct that had occurred during the operational period of the suspended sentence. Both general and specific deterrence were, she said, the most significant sentencing factors. The gap is at least consistent with my view that the head sentence is too long. The corollary is that, in re-sentencing the appellant, there need be little, if any, reduction in the non-parole period.

60. 18 I would not uphold ground 4. In my opinion, each of the sentences imposed on counts 1 and 4 was within the range. The armed robbery was a nasty example of a serious offence. The robbery was committed against a child. I agree with Mr Elston's submissions in that regard. The question remains whether we are obliged to consider those sentences for ourselves. In my opinion we are not. Her Honour's error with respect to totality stems entirely from her decision with respect to the restored sentence. That was a decision made separately from the sentences she imposed on the presentment. It is true that we shall have to consider the non-parole period for ourselves, but not for any error therein adverse to the appellant, only as a consequence of directing a lesser measure of cumulation.[6] This is not a case like R. v. Pope, where, as is commonly the case, an error in the non-parole period re-opens the head sentence. Mr Wraight correctly conceded that the foregoing analysis was correct. In any event I think no different sentences should be passed or directions for cumulation given in relation to the counts on the presentment.

63. Should the other members of the Court agree, I propose that the appeal be allowed in part by setting aside the order for total cumulation between the restored sentence and the sentences imposed on counts 1, 2, 3 and 4 and ordering in lieu that only twelve months of the restored sentence be served cumulatively. That would make a total effective sentence of seven-and-a-half years' imprisonment. Applying the principles in R. v. VZ[7], giving full weight to the efforts that the appellant has made towards rehabilitation whilst in custody, but not forgetting the other sentencing objectives in s.5 of the Act, I would fix a non-parole period of five years.

The order made below that the restored suspended sentence be served cumulatively upon the other sentences imposed by the County Court on 22nd April 2002 is set aside. In lieu thereof it is ordered that only twelve months of the restored suspended sentence is to be served cumulatively upon those other sentences.

The sentences imposed by the County Court on 22nd April 2002 and the directions for cumulation given are otherwise confirmed, resulting in a total effective sentence of 7½ years' imprisonment.

The non-parole period is set aside and in lieu thereof a non-parole period of 5 years is fixed.

It is declared that the period of 713 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] [1998] 1 V.R. 551 at 553.

[2] [1998] 3 V.R. 340 at 348.

[3] (1988) 166 C.L.R. 59 at 63.

[4] See R. v. Hatch [1998] 3 V.R. 693 at 696-700 and 703 and R. v. PAS [1998] VSCA 128; [1999] 1 V.R. 892 at [18]. The latter was a case arising under the repealed s.28 of the Sentencing Act.

[5] See, for example, ss.16(3) and (3B) and 31(5A).

[6] Compare R. v. Gibb [1997] 2 V.R. 576 at 579-580, R. v. Sener [1998] 3 V.R. 749, the cases there cited by Batt, J.A. at 752-753 and by me at 754 and R. v. Pope [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at [29].

[7] [1998] VSCA 32.