R v Bradley [2010] VSCA 70

CRIMINAL LAW - Appeal - Sentence - Offences committed while applicant on parole for murder - Not open to sentencing judge to set 'new overall minimum' - Presumption of cumulation - Totality - Whether applicant will be required to serve balance of parole sentence - Resentenced - Sentencing Act 1991 ss 14(1), 15(1), 16(3B).

1 After a trial in the Supreme Court, the applicant was convicted on two counts of reckless conduct endangering life and one count of intentionally causing injury. He had pleaded guilty to one count of theft and one count of being a prohibited person carrying an unregistered firearm. He was sentenced as set out in the table below.

2 The applicant seeks leave to appeal against conviction and sentence. The sole ground of the conviction appeal is that the conduct the subject of count 3 is also the foundation of count 4 and that his conviction and sentence on both amounted to double punishment.

3 The Crown concedes this ground, rightly in my view, and it is therefore necessary to quash that conviction. I will return later to the question of whether any other order is required following the quashing of the conviction on count 4. The quashing of that conviction means that the sentencing discretion is automatically reopened and it is therefore unnecessary to consider any of the grounds advanced in support of the application for leave to appeal against sentence.

4 It is first necessary to set out the circumstances of the offending. For that purpose I simply adopt as my own the sentencing judge's description of the offending, as follows.

5 In late November 2005 the applicant stole a Hyundai motor vehicle. On 12 February 2006, at about 10.00pm, he crashed that vehicle into the front of a house in Sydenham. A neighbour came out and went over to the car. The applicant was out of the car, or just getting out of the car, which was still running. It was suggested to the applicant by that neighbour that he stay in that location, since he had been involved in the crash.

6 The applicant indicated, by opening his jacket and looking down, that he had a handgun in his possession. It is clear, by the manner in which he did this, that he intended to intimidate the person to whom he was speaking, so that he could proceed out of the area. The neighbours, not surprisingly, reported to the police that there had been an accident and that the person involved was in possession of a firearm. A description of the applicant was given and broadcast over the police radio, including the fact that he was wearing a black leather jacket. He left the scene of the crash and headed towards the Melton Highway.

7 As the applicant was walking along that road, a police car came in the other direction. The officers saw him and realised that he matched the description of the armed man, which had been given over the police radio. Ross McCann was the driver of the police vehicle, Glenn Saw the passenger. Mr McCann pulled over and was on the police radio, saying that they had located the suspect. Mr Saw got out of the police car, which was almost level with where the applicant was walking, and said to him as he got out: 'Keep your hands where I can see them. I want to talk to you.'

8 The applicant continued walking but, in response, reached into his pants and pulled out a gun and started firing. He fired five shots in the direction of Mr Saw. During the firing of those five shots, Mr Saw got back into the police vehicle and hunched himself down in the passenger seat. He returned fire in the direction of the applicant. Mr Saw fired all of the shots in his revolver, but did so without being able to see where he was firing or the position of the applicant, as he was at that stage taking evasive action to prevent himself being shot by the applicant.

9 In the course of this exchange, Mr Saw was injured. A bullet grazed his shin. Another two bullets hit his boots but - very fortunately - the only injury was the graze. Meanwhile Mr McCann got out of the police car and headed down towards the rear of that car. He saw the applicant firing shots, and pointed his gun at him. The applicant then pointed his gun in Mr McCann's direction. The applicant fired one shot, which missed.

10 Mr McCann returned fire. (Mr McCann believed the applicant had fired two shots at him, but the judge acted upon the basis that it was only one shot.) The applicant then left the scene. He disposed of some surgical gloves, some ordinary dishwashing gloves and a balaclava. A bit further on, the applicant emptied the spent cartridges from the gun, and threw away the gun itself. He also disposed of the black leather jacket he had been wearing, which upon examination had three unused rounds of ammunition in the pocket.

11 The applicant was seen by a number of other witnesses. His progress was reported and he was eventually caught a number of streets away from the scene of the shooting, shortly before 11.00pm that evening.

12 On the hearing of the application, counsel for the applicant properly conceded that this was grave offending. I would respectfully adopt what the sentencing judge said in this regard:

These are particularly worrying crimes. Police officers have a dangerous job within our community. Whilst they are protecting our community from harm, they are equally entitled to full protection, from the courts. The statistics that were tendered on the plea, whilst they may be of some assistance in different cases, are in my view, of no assistance in this case. This is a most unusual case and the circumstances of [the] offending, reveal a high level of criminality.

As I said, these offences of reckless endangerment of life, are at a very high level of criminality for that offence. Whilst it is possible to imagine worse case scenarios, involving reckless endangerment of life, that does not detract from the fact, that these offences fall into, what I classify, as the worst case category. There is a need for general deterrence, of a high order. Protection of uniformed members of the police force going about their duty, requires that there be strong condemnation of the conduct on this night. It needs to be clearly understood that neither you nor any other offender can fire shots at police officers performing their duty on behalf of the public and expect anything other than a severe sentence.[1]

13 It can be seen from the summary of the circumstances that the conduct which supports the count of reckless conduct endangering the life of the officer, Mr Saw, is the same as the conduct which supported the count of intentionally causing injury to him. The applicant should not have been convicted on both counts.[2] The fact that the sentence imposed on count 4 was made wholly concurrent with the sentence imposed on count 3 does not alter the fact that the applicant was doubly punished.[3]

14 I turn then to the question of resentencing. The applicant was convicted in the Supreme Court on 2 July 1990 for murder, and sentenced to 20 years' imprisonment. A non-parole period of 16 years was fixed. He was paroled on 30 May 2005. These offences were committed on 12 February 2006 and almost immediately, on 15 February 2006, the Parole Board cancelled his parole. Between 15 February 2006 and the date of sentence, 10 October 2007, the applicant was serving the parole sentence; that is, the balance of the murder sentence.

15 In the sentence appeal, complaint was made about paragraphs 42 and 43 of the sentencing reasons, in which the judge said:

Pursuant to s 16(3)(b) all such sentences are to be served cumulatively upon the breach of parole that you are currently serving, unless I find that there are exceptional circumstances for directing otherwise. I find no such exceptional circumstances, but I have accordingly moderated the sentence that I would have otherwise imposed upon you, to ensure that the sentence would not be crushing.

I am required to impose a new overall minimum, which includes the breach of parole that you are currently serving. I direct, that you are to serve a minimum of seven years from today. I cancel any licence that you hold and disqualify you from being eligible to obtain any licence for a period of five years. I make the retention order pursuant to s 464ZFB, the disposal order, the compensation order and the forfeiture orders.[4]

16 Her Honour thus purported to impose a new overall minimum term which included the balance of the parole term under the murder sentence. The respondent conceded - again rightly, in my view - that her Honour had no power to do that, since there was no unexpired non-parole period. The Sentencing Act 1991 s 15(1) also required that this non-parole period be served first, followed by the balance of the parole sentence: see the decisions of this Court in DPP v Vucko[5] and DPP v Kennedy.[6]

17 Paragraphs 3 and 4 of the respondent's submissions explain succinctly why the course adopted was not correct:

It is conceded that the learned judge did not have power under s 14 of the Sentencing Act 1991 (Vic) to fix a new single non-parole period in respect of the unexpired term of the applicant's previous sentence for murder and the present sentence, because the non-parole period of the previous sentence had expired.

It is further conceded that the combined effect of the orders made and s 15(2) of the Sentencing Act 1991 (Vic) is that the applicant's previous sentence, which he was then serving, was suspended when the present sentence was imposed and he then commenced to serve the non-parole period of the present sentence. When that non-parole period expires, he will have about two years remaining to serve of the previous sentence. Thus, whereas the learned sentencing judge intended that the applicant would be eligible for parole at the end of seven years from the date she imposed sentence, in fact he has effectively nine years to serve, subject to the power of the adult parole board to re-parole him in respect of the previous sentence once he has completed the present non-parole period. Of course, this Court cannot take account of that possibility. Accordingly, it is conceded that some adjustment to the non-parole period ordered in respect of the present offences is warranted to give effect to the learned sentencing judge's intention.

18 The issue relevant to resentencing concerns both the head sentence and the non-parole period. The submission for the applicant was that, because the statute requires that the balance of the parole sentence be served cumulatively on the sentence imposed for the offence committed on parole,[7] the judge failed to take proper account of the totality of the sentence which the applicant would be facing if required to serve both the entire balance of the murder sentence and the full head sentence here imposed. The head sentence for murder having been 20 years and the head sentence imposed here by her Honour being nine years and three months, that total is a little over 29 years.

19 Mr Johns submits that 29 years is 'just too much'. Senior counsel for the Crown responds by drawing attention to the seriousness of any count of murder and to the seriousness of this offending, and submits that in resentencing the head sentence should not be altered on grounds of totality. In my opinion, that submission should be accepted. It seems to me, with respect, that her Honour was fully alive to the issue of totality. I reject the contention that what her Honour did by way of head sentence resulted in an effective period of imprisonment (including the parole sentence) which is disproportionate to the total criminality reflected by the murder conviction and by the convictions on these serious offences.

20 In my respectful opinion, the sentences which her Honour imposed on the counts which remain - that is, counts 1, 3, 6 and 7 - were entirely appropriate, as were her Honour's orders for cumulation. I would reimpose those sentences for those offences and make the same orders for cumulation, producing a total effective sentence of nine years and three months. As to the non-parole period, I have already set out the passage in which her Honour purported to set a single minimum term of seven years. Senior counsel for the Crown quite properly acknowledges that her Honour's obvious intention was that the applicant be eligible for parole from a date seven years from the date of her sentence, which would be October 2014.

21 As things stand, however, once the non-parole period for these offences expires, the applicant will have two years and three months of the parole sentence still to serve. The effect of reimposing a seven year non-parole period would thus be to produce a minimum term of nine years and three months. (That is of course subject to the discretion of the Parole Board, at some point after the expiry of that non-parole period, not to require the applicant to serve the entire balance of the parole sentence. But we are not allowed to - and could not in any sensible way in any event - speculate on what is likely to happen in that regard.)

22 The Crown submits, and I agree, that we should proceed on the assumption that the applicant will be required to serve the full two years and three months of the parole sentence, once the non-parole period for these offences expires. Accordingly, in my opinion, we should fix a non-parole period of four years and nine months. Added to the two years and three months of the parole sentence, which we expect him to have to serve, that will produce the result which her Honour intended. It would be unfair in my view for the result in this Court to produce any less advantageous result for the applicant than that which the judge clearly intended.

23 Finally, there is the question of what should be done in relation to count 4. It is common ground, and it is consistent with the authorities, that there should not have been a conviction on count 4. Accordingly, we should allow the appeal against conviction and quash the conviction on count 4.

24 In both R v RNT[8] and R v Sari,[9] where the same issue arose, the Court did no more than that in relation to the relevant count - that is, quash the conviction on the

double punishment count. This Court took the same view in R v Sessions.[10] The submission for the Crown, however, is that merely to quash the conviction would leave a potentially unsatisfactory position, namely, that there would remain a finding of guilt by the jury on that count, leaving open the question of the disposition referable to that finding of guilt. The solution, so it was said, was to make an order dismissing the charge without conviction under s 7(1)(j) of the Sentencing Act 1991 (Vic).

25 In my view, the point is properly raised but requires a different solution. As Eames AJA pointed out in R v Sessions,[11] dismissal without conviction is still a 'sentencing order' and is 'part of a regime of punishment'. The options available to this Court when a conviction is quashed are those set out in s 568(2) of the Crimes Act 1958 (Vic). The option appropriate to a case such as the present is to direct a judgment and verdict of acquittal to be entered. I would so order.

26 I agree with the presiding judge that the appeal should be dealt with in the way that he has found and I have got nothing further to add.

27 I also agree with the presiding judge and that the appeal ought to be dealt with in the way that he has outlined and I have nothing to add.

[1] R v Bradley [2007] VSC 418, [27]-[28].

[2] R v Sessions [1998] 2 VR 304, 313-4 (Hayne JA), 323 (Eames AJA).

[3] Pearce v The Queen (1998) 194 CLR 610.

[4] R v Bradley [2007] VSC 418, [42]-[43].

[5] [2008] VSCA 270.

[6] [2008] VSCA 263.

[7] Sentencing Act 1991 (Vic) s 16(3B).

[8] [2009] VSCA 137.

[9] [2008] VSCA 137.

[10] [1998] 2 VR 304, 315-6 (Hayne JA); see also R v Ahmed [2007] VSCA 270; (2007) 17 VR 454, [20]; R v Tu Quang Le [2009] VSCA 247, [14].

[11] [1998] 2 VR 304, 323.