R v Cochrane [2008] VSCA 60

Court of Appeal (Vic)|2008-04-15|Before: MAXWELL P, BUCHANAN and VINCENT JJA

CRIMINAL LAW - Sentencing - Offences committed while on parole - Parole cancelled after sentence passed - Statutory cumulation - Totality - Appeal dismissed - Sentencing Act s 16(3B).

**1 In my opinion the appeal should be dismissed. Although the sentencing discretion is re-opened, I would impose no different sentence from that imposed below. That being so, s 568(4) requires the dismissal of the appeal. My reasons are as follows.

2 On 19 August 2004, the appellant was sentenced on one count of attempted armed robbery to two years' imprisonment, with a non-parole period of one year. The circumstances of that offending were that the appellant entered a milk bar with a stocking over his head and carrying a knife. He demanded $50 from the milk bar owners. The owners recognised the appellant and one of them said to him 'I know you'. At that point the appellant ran out of the milk bar.

3 The appellant was subsequently released on parole, but his parole was revoked on 9 November 2005. He was re-released on parole on 11 May 2006. On 16 November 2006, some five months later, the appellant committed the offences with which this appeal is concerned. He subsequently pleaded guilty to one count of carrying an unregistered firearm while a prohibited person and one count of making a threat to kill.

4 On 28 March 2007, the appellant was sentenced by a judge of the County Court as follows: on the first count, which carries a maximum of 15 years, to 18 months' imprisonment; and on the second count, which carries a maximum of 10 years' imprisonment, to two years' imprisonment. The learned judge ordered that 12 months of the sentence imposed on count 1 be cumulative on the sentence on count 2, producing a total effective sentence of three years, and his Honour fixed a non-parole period of two years.

5 In the course of argument on the plea, there was some confusion about whether the offences for which the appellant was to be sentenced had been committed before the expiry of his parole on the attempted armed robbery sentence. The fact was - and his Honour should have been informed quite specifically of this - that these offences were committed while the appellant was still on parole. As a result, at the date of sentence the appellant was at risk that the Parole Board would cancel his parole.

6 In the event, the Parole Board did subsequently cancel the appellant's parole and reclaimed a period of seven months and 16 days. That decision of the Parole Board, the Crown accepts, constitutes fresh evidence on a matter which was adverted to on the plea but was at that time the subject of very limited and probably inaccurate information. As this Court held in R v Alashkar and Tayar,[1] we will receive evidence of this kind in a parole breach case as fresh evidence which re-opens the sentencing discretion - not because the judge made an error, but because of the necessity of reviewing the sentence in the light of the fresh evidence.

7 That concession, which I would accept, means that the discretion is reopened. It is unnecessary, therefore, to address any of the other grounds of appeal on which the appellant would have relied.

8 Counsel for the appellant proceeded to make a submission in the nature of a plea in mitigation, to urge this Court to impose on the relevant counts a more lenient sentence than that which had been imposed at first instance. In particular, counsel draws attention to the statutory requirement to cumulate on this sentence the remaining period to be served under the earlier sentence (Sentencing Act s 16(3B)). He points out correctly that the principle of totality applies, and that the sentence imposed for the subsequent offending - that is, the offending which breached the parole - must not produce an overall result out of proportion to the criminality represented by the two sets of offences.[2] Mr Dickinson's submission was that the cumulation of the seven months on the total effective sentence of three years imposed by the judge would offend the principle of totality.

9 Mr Dickinson sought to characterise the attempted armed robbery as at the lower end of the scale of seriousness, and the sentences imposed below on the current offences as heavy. As to the first proposition, a sentence of two years with a minimum of one for attempted armed robbery would suggest that the sentencing judge on that occasion did regard it as at the lower end of the range of seriousness, given that the maximum is 25 years for armed robbery. But it was a serious offence nonetheless, given that it involved a knife being brandished in the face of a milk bar owner/operator.

10 As to the sentences imposed below, in my opinion no case has been made on behalf of the appellant that any different sentence should be imposed. Mr Dickinson argued that what occurred on 16 November 2006 should be regarded in essence as an aberration, as an unexpected interruption of what was otherwise the constructive progress of the parole. He relies on the report of Mr Joblin and in particular the following passages:**

When he was released this time, however, he had made a decision not to have further difficulties of an antisocial nature. He wanted nothing to do with the environment in which he had been involved previously and in particular, he wanted nothing to do with the environment supplying drugs and heroin.

Thus when he was released earlier in 2006 he went on to Newstart but was having some difficulty supporting his family from Newstart, which make him extremely anxious. However, he was determined not to resort to offences such as those for which he served a sentence in Barwon. Indeed it seems that Mr Cochrane was proud of the fact that he had progressed from his last release in April to these offences in November without any other attention from the police. He was not using drugs on his report and further was reporting on parole. Mr Cochrane was, therefore, somewhat distressed that he is now back in custody for an offence which initially had nothing to do with him in any case. He was simply supporting a friend of his mother's with a gun that he had taken off another person in a previous fight. He did report, however, that there were very serious and concerning psychologically provoking issues in relation to that, particularly the threat of damage to his mother's house.

As indicated Mr Cochrane in my opinion has a personality disorder of some concern which means that much of his orientation and many of his attitudes are centred around the antisocial environment. He is no stranger to the jail system and it was quite apparent that over much of his life he was an entrenched member of a somewhat antisocial environment in the Geelong area. That seems to have continued until this last release. It is interesting to note that on his last release he made some strenuous efforts to stabilise his life away from drug use, which was a totally new experience for him.

The present offences, therefore, are qualitatively different to those in his past. They were not designed to obtain money for drugs and were not related to drugs at all. Futhermore Mr Cochrane reported that he believed he had a very good relationship with the Parole Office in Geelong and was attending the counsellor and his doctor to try to stabilise.

While Mr Cochrane is in a somewhat fragile situation psychologically in relation to further antisocial behaviour, the efforts he made over the middle of 2006 must be to his credit in my opinion.

**11 I accept that this incident was spontaneous and "out of the blue". But it was also, in my opinion, serious criminal behaviour. There were no extenuating circumstances which would explain, justify or excuse either the carrying of an unregistered firearm while prohibited from doing so or the making of threats to kill which were entirely credible so far as the person threatened was concerned. As was pointed out in the course of argument, this incident occurred against a background of serious violent offending over a number of years. The fact that, as counsel argues, much of the earlier offending was associated with drug addiction is a matter to be taken into account, but the prior convictions were properly taken into account below.

12 It is relevant to note in particular that the appellant has had convictions, in recent years, for carrying a prohibited weapon, threat to kill and assault. I also note, as Vincent JA did in the course of argument, the apparent inability of the appellant to take the chances he has been given. He has twice breached a suspended sentence and on this occasion offended while on parole. What occurred here was very dangerous behaviour which, unfortunately, casts doubt on the efficacy of his rehabilitation and raises an issue about the need for protection of the community (Sentencing Act s 5(1)(e)).

13 I accept that the appellant was looking to stabilise his life away from drugs. But, as I have said, this violent incident occurred in the absence of any drug issue, any provocation or threat to the appellant himself, and any risk to any other person which might in other circumstances have justified this kind of intervention. In my respectful opinion, what the sentencing judge said about rehabilitation was correct.**

**It was a matter to be taken into account in the appellant's favour, but in the circumstances of this event and his prior record, the court could not take an overly optimistic view of his rehabilitation prospects.

14 Finally, I wish to say something about the procedure in cases such as this. In McLeod,[3] a bench of this Court of which I was a member expressed the view that, where new evidence emerges after sentence about a matter relevant to sentence - in that case, a confiscation issue - it would be preferable for the sentencing court itself to have the opportunity to deal with that further development and to review the sentence passed in the light of the new information. As things stand, these post-sentence developments have to be dealt with, if at all, by this Court as new evidence. The result is that this Court becomes a sentencing court of first instance because the discretion is, in the relevant sense, reopened on every such occasion.

15 The reasoning in McLeod in the confiscation setting applies equally to breach of parole. The amendments suggested by the Court in that case[4] should encompass both. That will ensure that post-sentence developments are dealt with efficiently by the court which has already exercised the sentencing discretion. That, it seems to me, is the appropriate place for the review to take place, rather than in this Court.

16 I agree with the disposition of the appeal stated by the President, for the reasons which his Honour has given.

17 I share the President's view that it is desirable that legislation should be passed enabling events following sentence, such as the revocation of parole and the making of a confiscation order, to be considered by the sentencing judge, who should be able to determine the appropriate sentence in the light of those subsequent events.**

18 I agree, and I wish to associate myself with the remarks of the President and Buchanan JA concerning the disposition of cases where parole has been cancelled subsequent to the imposition of sentence.

[2] See Rongonui [2007] VSCA 274 and the authorities there cited.

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

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