R v Bardsley [2008] VSCA 174

2 He admitted 113 prior convictions arising from 21 court appearances between April 1989 and March 2006. They related to a number of driving, drug and firearm offences, resisting a police officer in the lawful execution of duty and offences of violence and dishonesty. We note specifically in the present context that the appellant had been previously convicted at the County Court at Melbourne on a count of manslaughter and had, over the period, appeared in the Magistrates' Court in relation to 15 charges of burglary, one of robbery, 21 charges of theft, two charges of the theft of a motor vehicle and three charges of going equipped to steal. He was undergoing a suspended sentence at the time of the offending with which we are here concerned.

3 After hearing a plea in mitigation of penalty, the sentencing judge, on 19 September 2007, imposed on all counts an aggregate term of four years and six months' imprisonment in respect of which a non-parole period of two years was fixed.

4 The present appeal is based upon the grounds set out in the appellant's Full Statement of Grounds that:

1. The learned sentencing judge erred in sentencing the appellant to an aggregate sentence in respect of the three counts.
2. The learned sentencing judge erred in failing to identify the extent of concurrency and cumulation that had been employed as the components of the aggregate sentence.
3. The learned sentencing judge erred in that he failed to give adequate and sufficient weight to the appellant's guilty plea.
4. The sentence imposed is manifestly excessive, both as to the head sentence and as to the term to be served before the appellant becomes eligible for parole.

5 We now turn to the circumstances of the offending.

6 On Thursday 6 July 2006, at about 9.00pm, the appellant went to a residential flat situated in Brunswick Street, Fitzroy. Present were the occupants, Joseph Shanmugan and Christopher Nolan and a visitor, a man known as Foad. The appellant entered through the unlocked front door and went into the lounge room where he approached Shanmugan and demanded his money. The appellant then proceeded to remove his wallet, containing four $50 notes, from Shanmugan's back pocket. He also took some money from Foad. He then took Nolan's 'Motorola' brand mobile telephone from the table in the lounge room. Not happy with the amount he had secured, he indicated that he wanted 'more.' Shanmugan told the appellant that he would be able to give him more if he could go to the bank. The appellant said he would return in 40 minutes for it, telling his victims, as he left, 'Don't try to call the cops on me because I'll get you.'

7 The appellant was next seen at 2.00am in the foyer of the building and confronted by Shanmugan. Police officers, who had been notified, arrived a short time later, and, after he was located, the appellant was arrested. When searched, the police found Nolan's mobile telephone and three $5 notes in his possession. The appellant was conveyed to the Fitzroy Police Station and, after a more thorough search was conducted, five $20 notes were recovered.

8 As counsel appearing on behalf of the Crown has conceded, his Honour undoubtedly failed -

... to identify ... separate events giving rise to specific counts, or groups of counts, and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent.

9 Section 9(3) of the Sentencing Act 1991 requires that -

If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender-

(a) the decision to impose an aggregate sentence and the reasons for doing so; and

10 Kellam AJA in DPP v Felton[1] stated with respect to that provision -

...if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify ... separate events giving rise to specific counts, or groups of counts and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. ...

In my view, to include an unstated element of cumulation in an aggregate sentence does not provide for the transparency required in the sentencing process. It does not enable proper analysis by the community, the offender, or an appellate court of the sentence and in particular of the unidentified components of the aggregate sentence. On the other hand, if the aggregate sentence is to comprise partially, or wholly, appropriate cumulation it will be necessary for the sentencing judge to identify the basis and nature of that. In effect the only safe course will be to approach the sentencing process in accordance with the general principles set out in Grabovic, and as one would do if the discretion provided for by s 9 of the Sentencing Act did not exist. It is necessary that the approach be similar to that suggested by Doyle CJ in R v Major.... That is that if an aggregate sentence is imposed, using s 9 of the Sentencing Act then the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process consideration must be given to whether the sentences imposed should be concurrent or should have some degree of cumulation. As Olsson J said in R v Major, when an appropriate aggregate sentence has been arrived at it is necessary to "stand back and review the result in light of the totality principle".

...As both Ormiston and Tadgell JJA observed in R v Bibaoui, it is necessary for an appeal court to understand not only the penalty imposed, but the reasoning behind the imposition of each penalty.

11 It is important to remain mindful of the function and jurisdiction of this Court when considering a case in which a sentencing judge has failed to comply with s 9(3). Under s 568(4) of the Crimes Act -

On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order[2] made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal.

12 Obviously, it does not follow from the failure to provide the reasoning underpinning an aggregate sentence that a different one ought to have been handed down. An aggregate sentence is, in effect, the total effective disposition arrived at by a sentencing judge after account is taken of the appropriate sentences for the various individual offences, the extent of cumulation required and the totality principle. As a very experienced judge, it is reasonable to assume that his Honour addressed all of these considerations, but in consequence of his failure to identify the elements of the sentence at which he arrived, the necessary transparency of the reasoning on which his determination rested is not present. In order to ascertain whether a different sentence should have been imposed and therefore the appeal allowed and appellant re-sentenced, the task must be undertaken by this Court.

13 His Honour made the following findings, relevant to the determination of an appropriate sentence, none of which have been impugned before us:

... you entered as a trespasser the room of the victim for the purpose of stealing and once inside the room you fulfilled that purpose and robbed him of some $200 and stole a mobile phone. Although the door was unlocked it was nonetheless an invasion of a person's home. Violence, and the threat of violence were employed. You were not known to the victim. Although there was no victim impact statement tendered it was, I am sure, nonetheless a frightening experience for both him and the two other people that were present.

You are aged 36 years. You have never known your father. You were brought up by your mother in a Housing Commission area in an outside environment of drugs and violence. By the word "outside" I do not mean that your mother or anyone in the house was using, but the area was an area or environment of drugs and violence. You were sentenced to serve time and did serve time in Pentridge at a young age and there you experienced even more violence and drug use.

You left school at age 15. You mixed with an older crowd and learned their ways which again seemed to involve violence and drugs. You yourself commenced to use cannabis at the age of about 15 and as so many do graduated to heroin whilst you were in prison, or on your release and as your counsel put it from that point on it was all downhill.

Your prior convictions are directly, or indirectly, drug related, as were the instant offences. What can be said in your favour is that since being taken into custody on 7 July of last year you have, and I suspect for the first time, made a serious effort to reform. You have remained drug free as is confirmed by the screens that have been tendered. You have completed a dozen or so courses, indeed every one available. Now I know that some of those courses are a half hour course, or a half day course, or whatever, but nonetheless you have done what is available.

You are on a Methadone Program and on a program which involves a reducing dose and you are apparently complying with that. You are, as your counsel put it, being proactive in your attempts to reform. You have the continuing support of your mother who is here in court to support you. You have a nine year old son of whom you have custody, de facto, if not de jure, I am not sure. Although he is cared for by your mother, you have a good relationship with your son and you wish to be able to properly care for him and to relieve your mother of the burden that is cast upon her. So you do have an added incentive to remain drug free and to commence to make a proper life for yourself.

His Honour accepted that, notwithstanding the appellant's extensive criminal history, he had demonstrated a desire to reform and had some prospects of reformation. In this context he said, referring to the submission of the appellant's counsel -

...I agree that you would benefit from the supervision and assistance provided by the Parole Board and in the circumstances a non-parole period of somewhat shorter than otherwise might be in this case warranted. It is clearly in the interests of the community that your rehabilitation continue and be promoted. This may be the last chance you ever have to achieve that. I will say it again. This may be the very last chance you here have to achieve reform and rehabilitate and achieve a different lifestyle.

14 This was a serious example of aggravated burglary and robbery carried out in a brash and confident manner. The invasion of a person's home for criminal purposes, as this Court has made clear on a number of occasions, and as his Honour stated, is regarded extremely seriously. Those who indulge in this form of behaviour must contemplate that the response of the courts will reflect that view. He was a seasoned criminal with a substantial history of relevant offending and at liberty under a suspended sentence at the time. He was, it would appear, sufficiently comfortable with his personal level of control over his victims that he returned to the building, presumably anticipating that he would be able to take more money from them. It follows that, in his case, the principles of general and specific deterrence are applicable. Nevertheless the significance attributed to them must be regarded as reduced in view of the various mitigating factors to which his Honour referred.

15 Whilst the offences were committed within the context of a single incident, separate serious crimes were committed, the commission of which must, subject to the operation of the totality principle, be reflected in the aggregate sentence reached. Clearly double sentencing must be avoided and a substantial level of concurrency directed.

16 In the event we have concluded that the following sentencing structure would have been appropriate:

On count 1 - three years and three months' imprisonment;

with the service of 12 months of the sentence imposed on count 2 and three months of that imposed on count 3 directed to be served cumulatively upon each other and upon the sentence imposed on count 1. This would create the same total effective sentence as that imposed by his Honour on 19 September 2007 and very likely represents the broad assessment of his Honour, whether or not he formally structured the aggregate sentence in this way. For the reasons provided by him, the non-parole period fixed by the sentencing judge appears, in our view, to be entirely reasonable.

17 These grounds, in effect, constitute particulars in support of a claim that the sentence imposed was manifestly excessive in the circumstances. As this Court has been required, in the consideration of ground 1, to determine for itself the appropriate sentence and reached the same result as the judge in the court below, there is no need to address them.

18 Having arrived at the decision that no different sentence should have been imposed, we dismiss the appeal.

[1] [2007] VSCA 65; (2007) 16 VR 214, 229-30, [46]-[48].

[2] No argument has been advanced that a 'different order', as distinct from a 'different sentence', should have been made.