R v Feretzanis [2003] VSCA 8

R v Feretzanis [2003] VSCA 8 - VSCA 2003 case summary — Zoe

[23]

It was said that the judge was wrongly influenced in this conclusion by taking into account the fact that the deceased was killed in the course of it. He said the "consequence of the conflict was death" and that fact should be taken into account in assessing the gravity of the affray. The specific vice to which counsel drew attention was, of course, the possibility that the applicant had been sentenced for the consequences of an offence with which he had not been charged: see e.g. R. v. Newman and Turnbull[3]. I am unable to reach that conclusion. The judge pointed out that the applicant had not been charged with homicide and that he must deal with the sentence on the basis that the applicant participated only in the affray. But he was not thereby prevented from determining the nature of the affray by looking at all its circumstances, including the harm actually caused and the threats of potential harm in respect of which the public was put at risk. What the judge was doing when he referred to the fact that the affray ultimately led to the death of one of the participants was to use it to show the nature of the affray and the force and viciousness of their conduct which all the participants had brought about. As he said, "the fact that the death occurred is indicative of its seriousness". This was not a case where the applicant was a mere fringe participant in the affray who was unarmed or merely encouraging others to join in, nor was he one who primarily was engaged only at the rock-throwing stage, however serious that might be viewed. He could not, as the judge rightly said, have been held responsible for the death which occurred without his participation, but he was nevertheless one who armed himself in a way which meant that the outcome for some might be serious if blows were struck. Thus in my opinion the death was merely used by the judge as evidence by which he could gauge the seriousness of the fight between the two gangs and the nature of the affray as a whole. The fact was "indicative" that the affray was far more serious than a minor melee.

[41]

The fact that a judge does not announce that he is imposing a less severe sentence because of an undertaking may not necessarily of itself provide a basis for inferring further sentencing error. In the first place the judge is not obliged to reduce the sentence because of such an undertaking but, having regard to its significance to both the whole prosecution process and potentially to the particular individual, it would be a rare case where some discount was not given and in any case, where such a conclusion is drawn that a reduction is inappropriate, that now should be stated in the judge's reasons, unless there be some concession on the part of the offender in the course of the plea. It is another matter whether compliance with the language of the section is essential to that process. In my opinion the purpose of the section was primarily to encourage offenders to give such undertakings and for courts to take them into account where there might otherwise have been a doubt as to the willingness to give evidence or the practical likelihood of the undertaking being fulfilled. In other words, having regard to both s.5(2AB) and the amendment to s.567A of the Crimes Act, the Crown is now given a means of ensuring compliance by being given the right to appeal on sentence out of time if the undertaking is breached. The required statement and its recording in the court records is primarily intended to ensure that the offender knows that he or she is being given special treatment and that the Crown has clear proof of there being such a reduction, so as to justify any appeal when the undertaking is not fulfilled. A further subsidiary purpose may be said to be the need for matters of this kind to be stated explicitly in a judge's reasons, both so that the offender might understand that he or she is being given a lesser sentence for a specific reason which is publicly recognised and that those who might otherwise read the sentence will understand that the offender is being given a less severe sentence on clearly recognised public policy grounds. It is vitally important to the administration of justice that witnesses can be encouraged to come forward and for them to be given appropriate recognition.

[44]

The real question is whether the judge gave proper weight to the offer in all the circumstances of the case. That necessarily involves a value judgment but the judge's reasoning may give clear indications as to whether he gave the matter proper significance in the whole of the process of sentencing the applicant. I have thought carefully about this matter for it could in no way be said that the judge was ignorant of the offer or that he had disregarded it wholly in the course of giving sentence. It was clear that on the plea counsel for the applicant relied upon it and took the sensible step of requiring his client to give sworn evidence to that effect. Nevertheless I have concluded that the consideration given to this particular factor was not adequate. Offering to give evidence was and is a special factor ordinarily requiring direct and explicit treatment, albeit that the Victorian Sentencing Act does not require a specific calculation to be made or expressed. It is ordinarily so important a factor that those listening to the sentence or reading the remarks, whether they be the offender or the public, must know whether and how that factor has been taken into account. The object of the section is in part to ensure that the offender is given due public recognition for his offer and that he or she and the public know that a significantly heavier sentence would otherwise have been passed. But that has not occurred in the present case. His Honour's limited discussion of the factor at the critical stage of the sentence suggests on its face that it has had too little significance placed on it and the comparative severity of the sentence, to which I am about to turn, confirms that impression. For those reasons I am of opinion that proper weight was not given to the applicant's offer in this case. The consequence of that failure must still be assessed in terms of the effect on the ultimate sentence and for that purpose I will turn to the first ground in the notice, namely that complaining of manifest excess.

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Judgment (95 paragraphs)

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