R v D L M [1999] VSCA 6

R v D L M [1999] VSCA 6 - VSCA 1999 case summary — Zoe

[56]

As the other members of the Court have pointed out, the principle stated in R. v. Chen [1993] VicRp 64; [1993] 2 V.R. 139 at 158 requires only that the judge should have regard to "the fact of and the practical effect of the earlier sentences". I am not inclined, however, to accept counsel's submission that the judge did that in the present case inasmuch as he was told only of the total effective head sentence and the non-parole period. The relevant sentences in each case must start with the individual sentences and to those the learned judge did not pay and could not have paid regard. However, that should not be the end of the matter. The issue was squarely raised in the course of the plea, counsel then acting for the applicant made a choice and the choice in this case was not entirely negative, but resulted only in giving the bare bones of the sentence and going no further. In the absence of some accusation that counsel was negligent or the like (and this was not suggested), it cannot now be said that the judge wrongly failed to go further, unless it be said that, regardless of the choice made by counsel on behalf of the prisoner, it is incumbent on every judge to make himself or herself aware precisely of the terms of the earlier sentences. On that issue I would consider that there must be at least some element of discretion left to counsel in conducting a plea which would include the right to say that, for the purposes of making submissions on what sentences were then appropriate, no account should be taken of what was earlier passed by way of sentence. Forensically one can think of a number of reasons why counsel responsibly would not seek to draw the judge's attention to earlier sentences. In the first place it may be thought inappropriate to spend time examining the differences between the basis for the earlier sentences and the basis then under consideration. Secondly, and again on this hypothetical basis, counsel may think it unwise to draw attention to severe sentences already handed down.

[57]

Finally on this ground, the argument draws attention to a problem arising in a number of sentencing appeals, namely, the perceived inequity arising from the imposition of sentences passed at different times but upon what is claimed to be the same basis. In this case I agree with the conclusions of the Chief Justice as to the differences which did exist between the basis for the sentences earlier imposed and that for the sentences which are the subject of this appeal: the Chief Justice has had the very distinct advantage of hearing the appeal from the convictions sustained when the applicant was first found guilty and sentenced and his views as to the differences reinforce those which otherwise might have appealed to me. The matter, however, goes further. In essence the applicant says that he had a justifiable sense of grievance because in certain respects his sentences on this occasion might be seen to be more stringent than those formerly imposed. Senses of grievance vary considerably and one would not be surprised if by far the majority of prisoners were aggrieved by the sentences they received. The question in each case, however, is whether there is a "justifiable" grievance. The difficulty is in determining what justifiably creates a sense of grievance such that an appellate court should interfere. Up to the present time observations such as those expressed and cited in cases such as Chen and Bedford (cited by the Chief Justice) have been taken to permit a judge on re-sentencing to work out a sentence which in all the circumstances is appropriate both to the offence and the offender. There is, however, in logic no reason why the re-sentenced offender should not feel a sense of grievance if the new sentence differs significantly from that which was formerly imposed. Indeed the argument may be thought to be stronger than in the case of co-offenders inasmuch as the court is dealing with exactly the same offender, although even then other events may have occurred which are disclosed in the course of the later sentencing hearing and which enable a judge to take a different view. Thus in some cases, though it seems almost too obvious to make the observation, the evidence may differ as to the offender's character and prospects for rehabilitation or the like to such an extent that no sense of grievance could fairly be felt by an offender then given a harsher term upon the basis of the new evidentiary materials. Again it is easy to assert that the circumstances of the offence must be the same in each case, but that flies in the face of experience, inasmuch as it is rare in any case of even moderate complexity for the trial (or other) evidence relating to the crime or crimes to coincide or to bear sufficiently similar a complexion as would require the subsequent sentencing judge to apply Chen directly or to observe any more stringent rule.

[65]

It is after having had regard to those factors, especially those referred in the last paragraph, that I have reached the conclusion with some hesitation that the learned judge erred in the manner in which he sentenced the applicant. I cannot accept that the individual terms and the total effective term were beyond the appropriate ranges, even having regard to those factors to which I have referred, but it seems to me to have been unreasonable to have fixed a non-parole period of four years six months, namely a term only one year and ten months less than the total effective sentence. I am well aware of the authorities which require that in fixing a term of imprisonment both the head sentence and the minimum term should be looked at as a whole and that ordinarily one should not look only to the minimum term as a means of granting a degree of amelioration, if only because the non-parole period is not necessarily the minimum term and must depend upon the discretion of the Parole Board: cf. cases such as R. v. Bolton and Barker [1998] 1 V.R. 692. I do not accept that there is any hard and fast rule requiring equal or almost equal reduction. This seems to me to be a case where it was entirely inappropriate, and it remains inappropriate, to reduce the individual terms and the total effective sentence. These were very serious crimes affecting young children in circumstances where the continued pattern of criminal misbehaviour of all kinds could not and cannot justify lower terms. That to which the judge referred, especially the aspects of rehabilitation and the applicant's motivation, are still in the realm of speculation. There has been some improvement in his behaviour but for much of the period the applicant has been serving a sentence in one or other gaol and most of the rest of the time has been spent awaiting sentencing on one or other charge. It is not appropriate to reduce the head sentences because of these forecasts of continued good behaviour where there was so little convincing evidence of what the applicant will do when freed from the constraints of prison or the prospect of prison. The Court cannot allow the prisoner ultimately to be released after serving a lower sentence when one has regard to both his record and the nature of the offences.

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Before

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Judgment (72 paragraphs)

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