R v Carey [2007] VSCA 319

Court of Appeal (Vic)|2007-12-20|Before: BUCHANAN JA and COLDREY and CURTAIN AJJA

Criminal Law - Sentencing - Attempting to pervert the course of justice - Threat to kill - Prohibited person carrying an unregistered firearm - Effect upon the operation of the totality principle of s 16 (3C) of the Sentencing Act and the refusal of the Adult Parole Board to consider parole for previous offence - Error in total cumulation of individual offences - Appellant re-sentenced.

3 At the time of the commission of these offences, the appellant was aged 39 and, at the time of sentencing (on 7 December 2006), he was 41 years old. On that day he was sentenced to 2 years' imprisonment on count 1, to be served concurrently with any sentence the appellant was then undergoing. (At that time the appellant was, in fact, serving the balance of the sentence of 12 months imposed on 20 July 2006 by Judge Millane for the offence of criminal damage.)

4 On count 2 the appellant was sentenced to 9 months' imprisonment and, on count 3, a period of imprisonment of 12 months. Both terms were to be served cumulatively upon count 1 and cumulatively with each other. The total effective sentence was, therefore, 3 years and 9 months and a period of 2 years and 9 months was fixed before eligibility for parole. Pre-sentence detention was declared to be 267 days.

5 The maximum penalties for attempting to pervert the course of justice, threat to kill, and being a prohibited person carrying an unregistered firearm are 25, 10 and 15 years' imprisonment respectively. In relation to the last of these offences, a fine of 1,800 penalty units is also available.

6 The appellant had some 50 previous convictions from 12 court appearances between July 1983 and July 2003. A considerable number were for dishonesty and minor street offences, but there were also convictions for unlawful assaults including assault with a weapon, being armed with an offensive weapon, reckless conduct**

endangering life, causing serious injury recklessly and causing injury recklessly. A gradual escalation in the seriousness of the offences is discernible from 1999. According to the appellant's counsel at his plea, this coincided with the use of amphetamines which commenced as a means of maintaining wakefulness as a truck driver. In 1992, after an incident at a nightclub which culminated in the appellant driving his tow truck in pursuit of persons who had assaulted his brother, he lost control and caused a number of persons to suffer injuries. This episode resulted in convictions for the offences of reckless conduct endangering life, causing serious injury recklessly and causing injury recklessly, to which I have previously referred and he received a total effective sentence of 4 years and 8 months' imprisonment with a non-parole period of 3 years and 4 months.

**7 The appellant's last prior convictions were recorded at Melbourne Magistrates' Court in June 2003 when he was convicted and fined $1,000 for offences of assault with a weapon and unlawful assault where the victim was apparently his de facto partner.

8 As the sentencing judge in the present case correctly observed, the appellant's history revealed a consistent pattern of violent offending and warranted a significant measure of specific deterrence.[1]

(2) The learned sentencing judge erred by failing properly to apply the principles (sic) of totality.

As the appellant's argument was developed before this Court, it became clear that the basis of the ground of manifest excess was to be found in ground 2.

10 The failure to properly apply the principle of totality was said to have a number of aspects which were listed in counsel's submissions. These may be paraphrased as:

(a) the total cumulation of counts 2 and 3 upon count 1;

(b) the erroneous exclusion of the totality principle when applying s 16(3C) of the Sentencing Act 1991 ('the Act');

(c) the failure to take into account, and properly reflect, other sentences imposed upon the appellant relating to the same period of offending (and having their genesis in a common factual matrix);

(d) the failure to take into account and reflect in the total sentence imposed the appellant's lost opportunities for parole on two earlier sentences, the Adult Parole Board having deferred consideration of parole eligibility pending the resolution of the present matters.

**11 In order to sensibly assess these propositions it is necessary to trace both the history of the events culminating in the current sentence and the chronology of the prior sentences imposed.

12 In about 1989 the appellant met a lady named Cassie Boxer whose father, Graham Boxer, operated a trucking business, Boxer Transport. The couple developed a relationship, living together first at Altona and later at premises in Rockbank. Two children, a girl and a boy, from this association, resided with the couple as well as the young son of Ms Boxer from a previous relationship.

13 By 2003 the relationship, which had always been tempestuous, had commenced to deteriorate. In June of that year the appellant was, as I have indicated, convicted and fined for assaulting Ms Boxer. There were also incidents involving the appellant and Ms Boxer's father who apparently had his leg fractured when clipped by a vehicle driven by the appellant (although this was not the subject of any criminal charges). In 2003 (and thereafter) the couple became embroiled in a dispute which involved the intervention of the Department of Human Services following a suggestion by Ms Boxer that the appellant had sexually abused the couple's daughter. This claim was later demonstrated to be false.

14 On 30 November 2003 there was an incident in which a driver associated with the Boxers, Brendan Schulzeff (nicknamed 'Melon') attended at the Rockbank premises at the request of Ms Boxer. There was a suggestion that Mr Graham Boxer was also to attend 'to sort out' the appellant. In any event, the appellant rammed a motor car belonging to Mr Schulzeff with his prime mover. This episode gave rise to charges of criminal damage and dangerous driving ('the prime mover charges').

15 The next incident in the sequence occurred on 20 March 2004 at a time after the appellant and Ms Boxer were estranged. The appellant visited the Rockbank premises and discovered Ms Boxer in bed with a young man named Travis Cox. He and his brother Troy, who was also present at the house, were the sons of a Shane Cox who had previously been married to the appellant's sister. (His sons were, however, from a prior marriage). The appellant assaulted Travis Cox and this incident resulted in his arrest on charges of aggravated burglary, intentionally (or alternatively recklessly) causing serious injury, and two counts of criminal damage ('the Rockbank charges').

16 The appellant remained in custody on these charges until 28 September 2004 when he was granted bail by Teague J. Up until this time he had accumulated 193 days of pre-sentence detention on those charges.

17 In the meantime the feud between the appellant and the Boxer-Cox alliance appears to have continued unabated. There was a suggestion by the appellant in his record of interview about the current matters that, following the Rockbank confrontation, one of the Cox brothers set fire to his car. It is difficult to gauge the truth of this assertion since the record of interview contains a number of false statements by the appellant. Indeed, the only admissions by the appellant to investigating police were that they had found a sawn-off Winchester double barrelled shotgun (the subject of count 3) concealed in a PVC cylinder under the bonnet of his car and that he had also placed ammunition under the car bonnet. That being said, the Crown did not dispute the allegation of the car fire.

18 In any event, the whole situation was further aggravated by the appellant's view that the statements made by Travis and Troy Cox about the Rockbank incident contained untruths. The appellant spoke to their father, Shane Cox, on several occasions intimating that he could hurt Travis or Troy if they did not retract their statements.

19 In about October 2004 his message to Shane Cox was to the effect that, if the sons retracted their statements or just told the truth, the gun, balaclava and gloves would be given to him for disposal. Not surprisingly, Mr Cox took such comments as an indication that these items were available for use against his sons in the event of their non-compliance; whereas, if their statements were changed, these items would no longer be required.

20 On 20 November the gun, which was then in the boot of the appellant's car, was shown to another truck driver named Colin Jensen.

21 On 13 December the appellant spoke by mobile phone to Shane Cox telling him; 'your family doesn't give a fuck about my family, so I don't give a fuck about yours. I have both addresses and anybody not involved keep their heads down.' The appellant went on to suggest that Mr Cox contact Colin Jensen about 'what he saw in the boot of my car'. The information subsequently provided by Mr Jensen about viewing the weapon caused Mr Cox to conclude that the appellant was threatening his son.

22 This series of incidents constituted count 1 on the presentment.

23 During the course of these exchanges another episode occurred. On 1 December 2004, at about 10.30 am, Mr Schulzeff ('Melon') who was working for Boxer Transport was preparing to unload his truck at Atherton Dock, Footscray, when the appellant drove up. When Mr Schulzeff questioned his presence the appellant responded: 'People who get involved in other people's families get hurt in the end.' At this time, the appellant was wiping something with a white rag. In answer to a query as to what he was doing he replied: 'You're dead cunt. If you want to play with other people's families, you'll find out what is going to happen.' The appellant then dropped the object he was wiping out the window of his car and drove off. It was retrieved by Mr Schulzeff and proved to be a white shotgun cartridge. On the side of it was scratched Mr Schulzeff's nickname - 'Melon'.

25 On 17 December when the appellant attended the Melton Police Station to report on bail he was arrested. A search of his motor vehicle revealed the firearm to which I have previously referred. At this time the appellant was a prohibited person under s 3 of the Firearms Act 1996. This was because on 17 November 2004 at Sunshine Magistrates' Court, Ms Boxer had taken out an intervention order against him. (Apparently this order was struck out following an appeal to the Melbourne County Court in March 2005).

26 The offence relating to the carrying of the firearm constituted count 3 on the presentment.

27 After his arrest on 17 December for what may be described as 'the December offences' the appellant was remanded in custody.

28 During this period, the prime mover charges were meandering their way through the criminal justice system with a series of contested hearings being adjourned essentially because of the non-availability of prosecution witnesses. This chronological sequence stretches from 15 October 2004 to 26 April 2006 when the matter was finally heard in the Sunshine Magistrates' Court. The appellant was convicted of criminal damage and driving in a manner dangerous and he appealed against those convictions to the County Court at Melbourne.

29 Over much of the same time the December offences were also taking a leisurely course. Originally scheduled for a contested hearing at Sunshine Magistrates' Court on 27 May 2005, the laying on that date of the charge of attempting to pervert the course of justice meant that the matter could no longer proceed summarily and, consequently, it was adjourned for committal proceedings which were not finalised until 14 December 2005. A plea offer in March 2006 was rejected by the Crown and the matter was not settled until 13 November of that year.

30 As has already been noted, the plea was heard on 15 November 2006 and the sentences the subject of this appeal were imposed on 7 December.

31 The first of the various collections of offences that I have described which were resolved by a court were those involving the Rockbank charges. After a trial before Judge Sexton, which commenced on 28 June 2005, the appellant was convicted by a jury of one count of recklessly causing injury and two counts of criminal damage. It is sufficient for the purposes of this judgment to note that he was sentenced by her Honour to an aggregate sentence of 14 months with a non-parole period fixed at 8 months. The pre-sentence detention declared was 233 days. Accordingly, on 5 July 2005, the appellant became eligible for parole. However, neither the prime mover charges nor the present offences had been finally determined at that date.

32 What next occurred was that the Adult Parole Board, by letter dated 28 July 2005, declined to assess the appellant's eligibility for parole until the resolution of the December offences. In the result the resolution of these matters had not occurred by the time the appellant had completed the balance of his sentence (that is the head sentence) for the Rockbank charges on 2 January 2006. This constituted a period of almost 6 months beyond the date upon which he would have been eligible for parole.

33 Up until the jury verdict for the Rockbank charges, the appellant had accumulated 154 days of pre-sentence detention in relation to the December offences and, after completion of the head sentence for the Rockbank charges, he accumulated another 113 days up until the date he was summarily convicted of the prime mover offences which was 26 April 2006. He received 12 months on one charge of intentionally destroying property and the same period, to be served concurrently, on one charge of driving in a manner dangerous.

34 Another 85 days accrued between that date and the hearing of the County Court appeal against these convictions. This matter was, as previously noted, heard by Judge Millane on 20 July 2006. On that date her Honour dismissed the charge of dangerous driving. However, the appellant was once again convicted of the offence of criminal damage and was sentenced to be imprisoned for 12 months with a non-parole period of 6 months. With the benefit of the 85 days pre-sentence detention, the appellant became eligible for parole for this offence on 6 November 2006. Hence the appellant had served an effective 1 month beyond that eligibility date before the imposition of his current sentences on 7 December 2006. That sentence has, of course, now been completed.

35 I have already listed in general terms the propositions advanced on behalf of the appellant. It should be recorded that in the conduct of this appeal, counsel for the appellant informed the Court that, whilst the individual sentences imposed were not lenient, it was not contended that they were manifestly excessive. Rather, it was argued that the total cumulation of counts 2 and 3 upon count 1 produced an aggregate sentence which breached the principle of totality. This was so because counts 1 and 2 represented a single course of conduct within a limited time frame occurring in the context of the antagonism between the appellant and the Boxer-Cox alliance. Moreover, the carrying of the unregistered weapon (count 3) was also inextricably linked to the antagonism which existed between the parties.

36 Counsel for the Crown fairly conceded that the carrying of the firearm was probably part of the ongoing feud and noted that it was the existence of the intervention order that caused the appellant to be categorised as a prohibited person. Further, given the timing of the events, some concurrency between counts 1 and 3 might have been expected. Indeed, counsel described the failure to accord any concurrency between these counts as 'troublesome'.

37 I regard counsel's disquiet as justified given the circumstances to which he alluded. In my view the failure to order any concurrency at all in the sentences imposed results in the miscarriage of the sentencing discretion. It follows that the appellant would need to be re-sentenced.

38 Although not strictly necessary it may be appropriate to deal briefly (and compendiously) with the other arguments advanced on behalf of the appellant - listed generally as (b), (c) and (d) above.

39 In assessing these arguments it is convenient to set out the relevant remarks made by the sentencing judge:**

There were submissions made from both your counsel and the prosecutor about how your lost opportunities for parole during this period of your incarceration should be taken into account, and whilst I must not speculate on what may or may not have happened via any decision made by the Parole Board, it is appropriate to take into account that you have served your entire sentence on the original Rockbank matters as a result of being remanded on custody on these matters.
On the other hand, this must be tempered by these offences having been committed whilst you were on bail. Thus s 16 of the Sentencing Act applies as these were offences committed whilst on bail. Thus I must order cumulation, unless there are factors which make it not appropriate in this case.
Finally, your counsel quite properly submitted that the Court should be mindful of the principles of totality. In my view, that is a proper sentencing consideration in your case.

**40 It was put that the sentencing judge had breached the principle of totality because of her application of s 16(3C) of the Act.

41 As was made plain in R v Piacentino[2], the provisions of s 16(3B) of the Act do not exclude the operation of the principle of totality. Although this sub-section relates to the cumulation of sentences where an offence is committed by a person while on parole, parity of reasoning would dictate the same result under s 16(3C) of the Act where an offence has been committed while a person is released on bail. In the latter case cumulation is required 'unless otherwise directed by the Court'.

42 The passage quoted from the sentencing remarks indicates an awareness by her Honour of these provisions and it must be assumed that it was the opinion of the sentencing judge that there was no basis upon which to order concurrency, albeit no reasons were advanced for that conclusion.

43 As I have indicated, I differ from her Honour's view as to the appropriateness of total cumulation.

44 I turn finally to the alleged failure of the sentencing judge to reflect previous sentences imposed on the appellant arising from the same domestic discord to which complaint is linked with the asserted failure to take into account the loss of the appellant's opportunity for parole.

45 In relation to the latter, I would regard the fact of a stated refusal by the Adult Parole Board to consider parole as a factor, like the revocation of parole, which a sentencing court is entitled to take into account in fixing a subsequent sentence. To have adopted such a course would not have breached the strictures of s 5(2AA) of the Act. Such a view is consistent with the reasoning in R v Hunter[3] and R v Piacentino.[4]

46 In the instant case the sentencing judge, in her reasons, adverted to the fact that the appellant had served the whole of the sentence for the Rockbank matters and purported to take this circumstance into account.

47 Insofar as the former proposition is concerned, it may be accepted that the principle of totality may require a sentencing judge to have regard to previous sentences imposed on another occasion relating to the same offending or period of offending.[5]

48 In fact the sentencing remarks indicate that her Honour specifically had regard to the sentences imposed on the Rockbank charges. Moreover, the present sentence was ordered to be served concurrently with that imposed by Judge Millane for the prime mover incident.

49 Whether all of these factors were accorded sufficient weight in the exercise of the sentencing discretion is another matter and one which, in the circumstances, I do not need to decide.

50 Nor is it necessary to consider the submission by counsel for the respondent that the aggregation of all the head sentences and non-parole periods imposed does not constitute a misapplication of the totality principle.

51 Since the individual sentences imposed by the sentencing judge are not the subject of complaint and were, in my view, appropriate, the only question for this Court in re-sentencing the appellant is to determine the degree of cumulation required.

52 I have already made some reference to some of the factors pertaining to these offences, namely that they constituted a single course of conduct concerning a small group of people at loggerheads with each other, and that they occurred over a short space of time. An additional matter for consideration is the period of delay of some two years prior to the initial resolution of such offences and, further, the fact that, excluding the period of 80 days during which the appellant was at large in late 2004, he has been in custody for a period of 3½ years since March 2004. The Court must also take into account the appellant's plea of guilty.

53 Counsel for the appellant also informed the Court that the appellant had re-established 'a workable relationship' with Ms Boxer; that he saw his children every**

second weekend; and, on his release, he was able to live with his supportive mother. Further, the appellant had remained drug free while in custody and he had been given the trusted job of billet in Loddon Prison.

**54 A number of these matters were not, of course, before the sentencing judge.

55 Whilst acknowledging the appellant's good work record, her Honour understandably, given his criminal history, had some misgivings as to his capacity for reform. This Court has the luxury of assessing the situation 12 months later and the matters to which I have referred auger well for his prospects of rehabilitation.

56 In summary, in re-sentencing the appellant I would take into account the factors personal to him including the time he has spent in custody to date. I would also have regard to the narrow focus and ambit of these offences and the restricted time frame in which they were perpetrated.

57 Whilst not interfering with the individual sentences imposed, I would cumulate 3 months of count 2 and 6 months of count 3 with the sentence imposed on count 1. This would result in an aggregate sentence of 2 years and 9 months. I would fix a non-parole period of 2 years.**

[3] [2006] VSCA 129, paras [28]-[30].

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