R v D J [2007] VSCA 148

3 On 17 November 2006, the appellant was arraigned in the County Court and pleaded guilty to a presentment containing four counts, which arose from events which occurred on 13 March and 29 April 2005. On the first occasion, the appellant caught a taxi from Doncaster to Camberwell. In Camberwell, the appellant asked the driver to stop outside a McDonald's outlet and wait for him. The appellant did not return to the taxi. The fare amounted to $37.10, after the taxi driver had waited for half an hour. (Count 1: obtaining a financial advantage by deception.) Later, the taxi driver could not find his coin clip, containing $60. (Count 2: theft.)

4 On 29 April 2005, the appellant was intercepted by the police, driving a South Australian registered Toyota motor car. The registered owner was John Cummings. The car had been stolen in South Australia. (Count 3: handling stolen goods.) A search of the car by the police revealed a toy plastic gun under the front seat. Cummins said that the toy gun belonged to his stepson and had been left in the car. The sentencing judge said that he thought the appellant "had no intention of ever using it". (Count 4: being a prohibited person in possession of an unregistered firearm.) The police also found a fishing knife under the driver's seat. (Summary offence: possession of a controlled weapon without excuse.)

5 After a plea, the appellant was sentenced to be imprisoned for a term of 12 months on count 1, to a term of 12 months on count 2, to a term of 18 months on count 3, to a term of six months on count 4 and to a term of three months on the summary offence. Three months of the sentence on each of counts 1 and 2 were ordered to be served cumulatively on each other and on the sentence in respect of count 3. The other sentences were to be served concurrently. His Honour announced that the total effective sentence was two years and six months' imprisonment, and fixed a minimum term of 18 months' imprisonment. In fact, the total effective sentence amounted only to two years' imprisonment. On being informed of the error, the sentencing judge amended the total effective sentence to two years' imprisonment. He did not revisit the minimum term.

6 The appellant has been granted leave to appeal. There are a number of grounds of appeal. It is, however, only necessary to deal with that part of one ground which complains that the individual sentences are manifestly excessive.

7 In my opinion, a sentence of 12 months' imprisonment for obtaining $37 by deception is manifestly excessive. The other individual sentences also appear to be excessive, in particular a sentence of six months' imprisonment for failing to jettison a toy gun some other person left in a car. The sentencing judge did not state how he evaluated the gravity of the appellant's offending. His Honour did not identify any circumstances attending the commission of the crimes which could be said to render them worthy of the substantial sentences that were imposed, and, in my opinion, there were no such circumstances. The appellant's history of prior offending could not itself warrant the terms of imprisonment which he received. The previous criminal history of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence.[1]

8 Accordingly, in my opinion, the sentencing discretion has been re-opened.

9 The appellant grew up in an apparently happy family with supportive parents. He left school in Year 10 and completed a four-year apprenticeship, living at home and working long hours. On leaving home, he fell in with those who used drugs. His twenties were a bleak wasteland of heroin addiction, gaol, sporadic work and transient lodgings. In 1999 the appellant witnessed the brutal killing of a prisoner at the Melbourne Custody Centre. The appellant gave evidence at the committal hearing, a trial and a re-trial, evidence that was apparently critical in securing the conviction of the person charged with the murder. The detective who investigated the murder said, in a letter to the Magistrates' Court, that the appellant -**

"showed enormous courage to stand up and give evidence against the accused, given the prevailing culture of silence that manifests within the prison walls ... I have enormous respect and admiration for [the appellant], who gave sworn evidence on three occasions to testify against the accused in this case."

As a result, the appellant has served his terms of imprisonment as a protected prisoner, which renders imprisonment more onerous than normal.

10 In the course of the plea, a report of a psychologist was tendered. The psychologist said, amongst other things:

"In view of his long history of drug addiction, his post-traumatic stress disorder and evident areas of personal fragility and vulnerability, he is likely to need a good deal of personal support and counselling, relapse prevention, programs and specialised post-traumatic stress psychotherapy, if he is to succeed over the long term in his desire to rehabilitate himself. However, he appears to have some admirable qualities which should assist him in this endeavour. He also has the continuing support of his family, and should he succeed in his desire to rehabilitate himself he has the potential to forge a constructive life."

**11 The maximum sentences for the offences committed by the appellant range from six months to 15 years. The circumstances attending the commission of the offences placed them towards the least serious end of the spectrum. The appellant could rely upon the significant mitigating factors of his pleas of guilty and the hardship he suffers as a protected prisoner. His history of prior convictions means that the offences are not to be viewed as an uncharacteristic aberration and justifies a sentence which will deter the appellant from future offending.

12 In my opinion, it is appropriate to re-sentence the appellant to be imprisoned for terms of two months on each of counts 1, 2 and 4, six months on count 3 and one month for the summary offence. I would cumulate one month of the sentences imposed in respect of each of counts 1 and 2 upon each other and on the sentence imposed on count 3. The total effective sentence is eight months' imprisonment.

13 I agree, and would re-sentence the appellant as his Honour proposes, for the reasons which he gives.**

**14 I wish only to add something about the matter of the appellant's cooperation. The passages which his Honour has read from the letter which was before the sentencing court underline the quite exceptional courage which the appellant has shown, and has been required over some years to continue to show. He has, in my view, performed a notable public service by giving evidence, on successive occasions, about a violent killing in jail. The risks of giving evidence in relation to a crime of that kind are well known.

15 There is a clear public policy behind encouraging, and recognising, that kind of cooperation in the solving of crime. Given that the evidence was in such strong terms about the quality of the assistance given, it was in my opinion incumbent on the sentencing court to identify very clearly the character of the assistance, to acknowledge its public importance, and to make quite clear that a significant discount has been applied. The learned judge referred to there having been a discount, but the reasons do not, in my opinion, do justice to the features of the appellant's conduct to which I have referred.

16 This sustained courageous behaviour reinforces the psychologist's view that the appellant has the potential to forge a constructive future. It is very much to be hoped that, upon his imminent release, he embarks on exactly that.

17 I agree with Buchanan JA's conclusions for the reasons he has given, and I have nothing to add.

The sentence imposed below is quashed. In lieu thereof the appellant is sentenced to eight months' imprisonment, which is arrived at as follows:

On each of counts 1, 2 and 4, the appellant is sentenced to two months' imprisonment.

On count 3, he is sentenced to six months' imprisonment, and he is sentenced to one month for the summary offence.

One month of the sentences on counts 1 and 2 will be cumulated on each other and on the sentence imposed on count 3, giving a total effective sentence of eight months' imprisonment.

It is declared that the full period of eight months has already been served under the sentence, which is a sentence imposed as of 21 November 2006, which was completed accordingly on 21 July 2007. It is ordered that there be noted in the records of the Court the fact that that declaration of the period served was made and its details.

[1] See Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465.