R v Ferman & Stoforo [1999] VSCA 76

15. As to the applicant Stoforo, his Honour sentenced him to three years' imprisonment and fixed a non-parole period of two years and made a declaration pursuant to s.18(1) of the Sentencing Act 1991.

18. By way of notice dated 20 October 1998 the applicant Ferman seeks leave to appeal against sentence on the following grounds:

1. That the learned sentencing judge imposed a sentence that was manifestly excessive in the circumstances.

2. That the learned sentencing judge failed to take sufficient account of circumstances personal to the applicant.

On 8 April 1999 he was granted leave to add the following grounds of appeal:

3. That the learned sentencing judge erred in the exercise of his discretion in that he failed to accord any or sufficient weight to the sentencing principle of totality; and -

4. That the learned sentencing judge erred in exercising his discretion in that he failed to accord any or sufficient weight to the applicant's pleas of guilty.

26. By way of notice dated 21 October 1998 the applicant Stoforo seeks leave to appeal against sentence on the ground that the sentence was manifestly excessive. On 26 April 1999 he was granted leave to substitute the following grounds of appeal for those contained in his original notice:

1. The learned sentencing judge failed to give sufficient weight to the fact that the applicant did not enter the premises.

2. The learned sentencing judge failed to give sufficient weight to the applicant's -

3. The sentence in all the circumstances is manifestly excessive.

36. Because the only charge common to the two applicants is the conspiracy charge referred to earlier, it is convenient to consider first the essential facts giving rise to that offence and then summarise the facts pertaining to the three counts that are referable only to the applicant Ferman. Thus, so far as the conspiracy charge is concerned, the principal facts are these.

39. At approximately 12 noon on 23 October 1997, Stoforo and Ferman met at Ferman's home in Port Melbourne with Ali Kara. The three of them discussed committing an aggravated burglary on a house situated at 28 Patterson Street, Burwood. The men had been previously told that the persons residing at the Burwood address were heroin dealers and that there was a large amount of money being kept on the premises. As a result of their discussions the two applicants and Kara agreed that they would travel to Burwood that afternoon in order to steal money from the premises. Before they set out to travel to Burwood, Stoforo, at the request of Ferman, went home and collected a pair of nunchukkas, which, as I understand it, consist of two sticks or handles joined by one or more chains that can be used as an offensive weapon. The three men then left Ferman's house in Ferman's car. As I have said, Stoforo carried a pair of nunchukkas, Ferman was armed with a loaded Browning .32-calibre pistol and Kara was armed with a large black-handled knife. En route to Burwood the three men stopped at a hardware store in South Melbourne where they purchased a length of rope and a Stanley knife. At a nearby sporting goods store they purchased a number of beanies and balaclavas. They then continued on to the Burwood address, which, unbeknown to them, was under police surveillance. At approximately 3.20 p.m. the police observed Ferman's car being driven past 28 Patterson Street, Burwood. The vehicle was seen to execute a U-turn outside the premises and then drive off. At approximately 5.10 p.m. the police observed the same vehicle return to Patterson Street where it again executed a U-turn outside the address and drove off. On each occasion the car contained the two applicants and Kara. At approximately 5.40 p.m., at the intersection of Toorak Road and Kooyong Road, the vehicle in question was intercepted by members of the Special Operations Group, who arrested the three male occupants. At the time of arrest Ferman was still in possession of the Browning pistol, and a police search of Ferman's vehicle found the nunchukkas, a black-handled knife, a Stanley knife, a length of rope and numerous beanies and balaclavas.

42. Each of the two applicants was interviewed by the police on 23 October 1997 at approximately 7.30 p.m., in the course of which each made admissions, including admissions that the three of them believed that drug money was kept at the above Burwood address and that since they were short of funds, they intended to steal such money as they could find at those premises. Stoforo insisted to the police that the plan was the idea of Ferman. Stoforo told them that when they got to Burwood there were cars in front of the house in question and as a result, he got cold feet and just wanted "to leave it go". He did, however, admit that if there had not been people and cars around, they would have gone into the premises and stolen what they could find. He also admitted that the plan was for Ferman to go into the house and have a look around; Stoforo was to go in with him with the nunchukkas just in case there was any trouble in the house while Kara was going to wait in the car and keep a lookout.

45. I now turn to the charge of trafficking in a drug of dependence. Briefly stated, the essential facts were these. On a number of occasions between 17 and 28 October 1997 the applicant Ferman sold to a covert policeman varying amounts of heroin for which he was paid in cash. On 27 and 28 October the undercover policeman also negotiated with the applicant Ferman and Karliovic for the purchase of a further five ounces of heroin at a cost of $17,500. Later, an order was also placed with Ferman and Karliovic for a further seven ounces of heroin for an additional amount of $24,500. During the negotiations, Karliovic produced plastic bags containing brown powder purporting to be heroin. It was during these negotiations that members of the Special Operations Group arrested Ferman and Karliovic. At the subsequent police interview, Ferman responded merely with a "no comment" to questions put to him pertaining to trafficking.

48. It is convenient to mention at this stage that, during the hearing of the plea in mitigation made on behalf of Karliovic, it was submitted by his counsel that the heroin which was the subject of the trafficking charges was brown heroin as opposed to white heroin, and that brown heroin was of poor quality and as a consequence was more suitable for smoking rather than intravenous use and presumably, had a lesser market value. In response to that submission the Crown called evidence to the effect that there was no relevant difference between the brown and the white heroin.

51. Turning now to the charge of recklessly causing serious injury, the relevant facts and circumstances were these. At approximately 2 a.m. on 18 October 1997 the applicant Ferman attended at a tavern in Smith Street, Fitzroy, accompanied by three other adult males and an adult female. The group occupied a table near the dance floor at a distance of approximately four metres from a band playing music. At the time the applicant Ferman entered the tavern he was carrying a loaded .25-calibre pistol inside the inner pocket of his coat. During the next hour or so the applicant and his companions proceeded to consume alcoholic drinks while they watched the band play. At approximately 3 a.m. the applicant stood up and took the pistol out of his pocket. He momentarily raised it in the air, lowered it and then raised it into the air again. He repeated that action several times, and on one of the occasions the pistol discharged. The bullet travelled across the dance floor and hit a member of the band on the right leg on the inside of the knee. The bullet ricocheted off the knee bone and then travelled approximately ten to twelve inches internally up the musician's leg. The applicant then placed the pistol back in his coat pocket and sat down. Shortly thereafter, he and two of his colleagues left the tavern. Between 18 and 27 October 1997 the applicant gave the pistol that was used in the incident to a police informer who, in turn, handed it to an undercover police operative. During a conversation between that operative and the applicant on 27 October 1997, Ferman made admissions about the shooting incident on 18 October 1997 and claimed that the pistol had accidentally discharged. He was later arrested and interviewed by the police in relation to that incident, but merely responded with "no comment" when asked about the shooting.

54. I now turn to the grounds on which each applicant seeks to appeal and will consider them in the order in which they were argued.

58. In relation to the applicant Ferman the grounds so argued were these:

(a) his Honour did not give sufficient weight to the applicant's plea of guilty;

(b) his Honour had insufficient regard to the applicant's personal problems;

66. Mr Holdenson Q.C. who appeared for the applicant Ferman, submitted that in sentencing his client, his Honour did not give due weight to his plea of guilty. He contended that his client's plea of guilty had the effect of saving the State the expense of a trial and much inconvenience to witnesses. Moreover, in respect of the offence of recklessly causing serious injury, the applicant had pleaded guilty as early as the committal mention in the Magistrates' Court and in respect of the offence relating to conspiracy, he had made full admissions in his record of interview. Consequently, Mr Holdenson argued, the learned sentencing judge should have given a substantial sentencing discount in favour of his client and in this respect, he relied on what was said by Callaway, J.A. in R. v. Duncan [1998] 3 V.R.208, 214-5.

69. It was contended that his Honour failed to give such a sentencing discount. It was submitted that when regard is had to each individual sentence and the overall sentence imposed by the learned sentencing judge, it is obvious that he had insufficient regard to the plea of guilty as a mitigating factor. It was not suggested by Mr Holdenson that his Honour did not take the plea of guilty into account. The case sought to be made was that it was not given sufficient weight by his Honour as a mitigating factor. The argument was that had an appropriate sentencing discount been applied by his Honour so as to arrive at the sentences which he in fact imposed, the sentences originally formulated before the application of discount, would have had to have been so high that they would have been manifestly excessive. This demonstrates, so it was said, that his Honour did not give sufficient weight to the applicant's plea of guilty.

72. This argument is based on the contention that due weight could only have been given to the plea of guilty if a substantial sentencing discount had been applied to the sentences that would otherwise have been imposed. In my view, however, it does not follow that a mere plea of guilty warrants a substantial discount of the order of approximately one to two years as was suggested by Mr Holdenson. It may or may not justify such a reduction, but whether it does, must depend on all the relevant circumstances.

75. Usually, it is not the fact of the plea of guilty that warrants a sentencing discount. Rather, it is what flows from it by way of public interest that operates to determine the extent of the sentencing discount that should be given. It will nearly always be the case, for example, that at least some material benefit will flow to the State from the plea of guilty. Similarly, any inconvenience, stress and trauma that would be experienced by witnesses if the trial were held, will be removed by such a plea. A plea of guilty may also reflect genuine remorse on the part of th offender and be a step towards rehabilitation which is, of course, in the public interest. Those factors or some of them may warrant the imposition of a materially lower sentence than would otherwise have been the case. Other matters, however, also need to be considered in determining what weight should be given to the plea of guilty. They include the strength of the case against the accused, the point in time when the plea was made and many other matters that may operate in relation to some, but not other, cases. Thus, it is difficult to state in the abstract, what should be the extent of the discount that is appropriate in respect of a plea of guilty. Indeed, it has been recognised that such a plea need not always result in a sentencing discount. These matters were examined by Charles, J.A. in R. v. Donnelly [1998] 1 V.R. 45, 648-9 and the general principles were dealt with by Callaway, J.A. in R. v. Duncan, 214-5.

78. In my view, there is no basis for Mr Holdenson's claim that his Honour was bound to give a substantial sentencing discount to Ferman because of his plea of guilty. It is accepted that his Honour did take that factor into account in structuring Ferman's sentence. It is also accepted that his Honour was not obliged to set out in his remarks precisely the extent of the sentencing discount that he gave by reason of the plea of guilty. If one looks at his Honour's sentencing remarks, it is clear that he balanced that factor against other matters which he also took into account, as he was entitled to do, in order to determine what punishment was just in the circumstances of the case before him. The matters that his Honour so took into account included the gravity of the offence committed by Ferman, his disregard of the law over a very long period, the need for general deterrence, his pursuit of some drug rehabilitation programs and other matters.

81. It should also be noted that there are factors present in this case which could militate against giving Ferman a substantial sentencing discount of the order suggested by Mr Holdenson. It was open to his Honour to take the following matters into account in deciding what weight to give to the plea of guilty.

(a) As has been conceded by Mr Holdenson, the present case bears no relevant similarity to Duncan where significant assistance was provided by the accused to the authorities.

(b) On the contrary, Ferman did not even make admissions to the authorities in respect of the charges, other than the one relating to conspiracy.

(c) The Crown case against Ferman in relation to all the charges was almost overwhelming.

(d) The pleas of guilty were not made at an early stage. Other than in respect of one charge, they were made at or about the time of the proposed trial.

88. For these reasons, it is my view that his Honour did not fail to give proper weight to Ferman's plea of guilty.

92. The second ground argued by Mr Holdenson was that in sentencing his client, his Honour failed to have due regard to the applicant's personal position, more particularly, his drug addiction at the time of offending, his disadvantaged background and his efforts after the commission of the offences to overcome these problems and thereby rehabilitate himself. That his Honour did have regard to these matters was acknowledged by counsel for the applicant. His real complaint was that his Honour did not have sufficient regard to them when considering what sentence to impose. In my view, the fact that his Honour referred to those matters but briefly is not a valid criticism of his Honour's reasoning. That he gave weight to them is, in my view, apparent from what he said and from the length of the sentences which he passed. They do not in my view demonstrate in this case that his Honour failed to have proper regard to them. By way of example, I note that in relation to the applicant's drug addiction, the learned sentencing judge made the unchallenged finding that any personal drug habits of the applicant played little part in his trafficking in a drug of dependence.

96. The next ground argued was that his Honour erred in making the orders for cumulation, in that the degree of cumulation was excessive. That ground overlaps to some extent with part of the final ground, which is concerned with a claim that the total sentence is manifestly excessive because of the excessive cumulation directed by his Honour.

99. In the context of his remarks pertaining to cumulation his Honour said this:

"Although your offences took place over a short period of time, there was no connection between them such as would attract the operation of principles suggesting a degree of concurrency. However, I do not consider that total cumulation is appropriate. Having regard to the duration of your offences and the necessity for avoiding a crushing sentence, some degree of concurrency is essential."

It should be borne in mind that the offence of trafficking was committed between 17 and 28 October 1997, the applicant's conduct which resulted in the charge of recklessly causing serious injury occurred on 18 October 1997 and the conspiracy took place on 23 October 1997.

104. In my view, in the context of considering cumulation, his Honour was entitled to bear in mind, as he did, the serious nature of the several offences committed by the applicant, and that each carries a significant prison sentence by way of penalty. He was also entitled to bear in mind, as he did, the applicant's conduct, which represented a significant pattern of unlawful behaviour which, when looked at in the context of his previous criminal history, disclosed a contemptuous disregard of the law on his part. In those circumstances, the learned sentencing judge was entitled to conclude that specific and general deterrence formed an important factor in the sentencing of Ferman. Perhaps more relevantly from the point of view of deciding whether any, and if so what, cumulation was appropriate, his Honour took into account that the offences were materially different one from the other, that they involved different victims, that they were committed at different times, and that they were not connected one with the other. The only question is whether the extent of cumulation was so excessive as to amount to a miscarriage of sentencing discretion. Whilst Mr Holdenson conceded that some cumulation was appropriate, the extent of it was, he said, excessive. His main point was that, because each offence was committed within a short time (there were eleven days in all), the cumulation should have been far shorter. He pointed to the fact that more than one half was cumulated upon another sentence and he submitted that in the circumstances that was excessive.

107. In the light of the factors to which I have referred, namely that the offences were discrete, they were committed at different times, there was no relevant connection between them, the mere fact that they were carried out over a period of eleven days, means that the cumulation directed by his Honour was not excessive and his discretion in that regard did not miscarry.

111. The final ground argued on behalf of the applicant Ferman was concerned with the contention that the sentences in respect of the conspiracy count and the count of recklessly causing serious injury were manifestly excessive, as was the total sentence. First, in relation to the sentence relating to the conspiracy count of three years and six months imposed by his Honour, it was submitted that it was excessive principally because the duration of the conspiracy was short and the agreement was not implemented. It was said that his Honour did not take these matters sufficiently into account in imposing the sentence of three-and-a-half years.

114. It is clear, however, on the unchallenged findings of the sentencing judge, that the conspiracy continued until the offenders were apprehended by the police. Up to that point it was the intention of Ferman to return to the house and implement the plan, in other words, to enter the house and steal any money that may have been in it. It is important to recognise that the applicant was charged with conspiracy to commit aggravated burglary and not with aggravated burglary, and that he pleaded to that charge. The offence carries a maximum penalty of 25 years' imprisonment, and in the circumstances of this case, the sentence imposed by his Honour was well within the range that was open to him. In my view, the same conclusion applies to the four-year sentence imposed by his Honour in relation to the count of recklessly causing serious injury.

117. For the reasons I have already given, the total sentence was also not manifestly excessive and was within the range of sentences open to his Honour.

120. For these reasons his Honour's sentencing discretion did not miscarry. I would dismiss Ferman's application.

124. I now turn to consider the grounds argued on behalf of Stoforo. The first was that his Honour did not give sufficient weight to the fact that Stoforo had not gone into the premises in question. In my view, the short answer to that submission is that the applicant pleaded guilty to taking part in the conspiracy, which is necessarily an inchoate crime. Had he entered the premises he would have committed yet another offence. Moreover, his Honour did have regard to the fact that the applicant did not reach the point of entering the premises, but he also had before him the reason why that was so, namely that he was apprehended by the police. His Honour found as a fact that it was Ferman's intention to return to the house at a later stage to carry out the proposed crime of burglary, and it was open to his Honour to find that Stoforo would have gone along with him. As has been recognised by counsel for Stoforo, his Honour was not bound to accept the rejection or implied rejection of that proposition that was contained in the applicant's record of interview with the police. It is true that the applicant said to the police that he got cold feet when he saw the cars and people in front of the premises in question, but it is also the fact that in his record of interview, Stoforo indicated that he got cold feet only because of the presence of the cars and people. There was no suggestion by him that he opted out of the agreement in the sense of informing his co-conspirators of his decision not to proceed with it.

127. In my view, the second ground relied on by Mr Salek who appeared for the applicant Stoforo, namely, that his Honour failed to give sufficient weight to certain matters, has more substance than the first ground. Mr Salek pointed to a number of matters pertaining to the personal position of his client which he said his Honour had not taken into account, or had not taken into account sufficiently, and which relevantly set him aside from the applicant Ferman. I do not list them in the order in which Mr Salek set them out or in order of importance, but they included the following matters. Stoforo was a follower of Ferman and not an instigator of the offence. Next, there is no suggestion in the evidence that his client mixed with persons associated with crime. Mr Salek also pointed to the fact that his client had no relevant prior convictions, and that there was sound evidence on which to conclude that he had good prospects of rehabilitation. Similarly, he pointed out that his client had expressed remorse and was open with the police when they interviewed him in relation to the offence. There was no association, he said, that his client had had with drugs, and that, because of his past life, which was essentially spent with his mother and family, and his lack of prior convictions or association with people who are concerned with crime, he will find it particularly hard to serve the prison sentence.

130. In my view, however, his Honour did have regard to those matters to which Mr Salek so ably referred. The only question is whether he gave sufficient weight to the matters. The argument of Mr Salek was, in effect, that had his Honour given due weight to those matters he would not have imposed the sentences he did impose. In my view, however, although it is arguable that the head sentence could have been less than three years, it does not follow that the sentence imposed was out of the range of sentences that were open to his Honour to impose in relation to these serious offences, particularly bearing in mind that the applicant did participate in the proposal in question with a weapon, which he was apparently prepared to use in the course of giving effect to the conspiracy if the occasion arose. It follows that his Honour did not fail to give due weight to the matters to which he referred, and the sentence, as I have said, which he did impose was within the range of sentences open to him.

133. For similar reasons I am of the view that ground 3, namely, that the sentence is manifestly excessive, has not been made out.

136. For these reasons I would propose that this application also be dismissed.

140. I agree. I add only a few remarks with respect to the orders for cumulation in the case of Ferman. The cumulation of four years of the sentence on the trafficking count and two years of the sentence on the conspiracy count to the sentence of four years on what was called the assault count was relatively concentrated and was certainly such as to produce a severe sentence. The learned sentencing judge was, however, evidently minded to mark the culpability of the applicant Ferman for three serious discrete and unconnected crimes.

143. The validity of a measure of cumulation of sentences was conceded by Mr Holdenson in this Court. His complaint was that the degree of cumulation was disproportionate to the culpability which the three offences demonstrated. It is relevant also to notice, as the judge did, that the applicant Ferman admitted 36 prior convictions from 19 court appearances between 19 May 1975 and 22 October 1996. The judge in his sentencing remarks observed, correctly if I may say so, that these indicate a complete disregard for the law. His Honour added that only a few of them had any significance in this case, by which I take him to have meant that only a few of the prior convictions were for offences cognate to the offences for which his Honour was imposing sentence. The indication of prior offences, taken as a whole, of the applicant's disregard for the law was, however, not without significance to the current sentencing task. Plainly an antecedent criminal history is relevant to show, if I may adapt the language in Veen v. The Queen (No.2) [1988] HCA 14; 164 C.L.R. 465, at 477, that the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. By the same token, as it seems to me, a series of discrete offences, as in this case, for which sentences are being imposed may show a continuing contumelious attitude towards the law justifying a relatively high degree of cumulation.

146. In the circumstances of this case I consider that the degree of cumulation that the judge ordered was within his available discretion.

150. I agree with what each of the other members of the Court have said, subject to these small matters. I agree with what they have said as to the application of Ferman. Notwithstanding the well-ordered argument of Mr Holdenson, in my opinion there was only one ground which caused me any concern. That was the ground alleging failure to give weight to the principle of totality. It may have appeared that larger proportions than usual of two of the sentences were cumulated upon the sentence pronounced on the fourth count. However, though the offences took place within a period of eleven to twelve days, the three relevant offences were, as was conceded, quite different offences. They were all serious infractions of the law and they should have been so recognised. The learned judge was entitled to order the cumulation he in fact ordered in the proper exercise of his discretion. Looking back on the total effective head sentence, I cannot see that the result was any greater (and thus not "crushing" in the relevant sense) than that which the applicant Ferman deserved having regard to his record and to his consistent contempt for the law in the relevant period of offending. This case is quite different from those where the same or similar offences are connected and committed over a period of time.

153. One other matter relating to Ferman's application should be mentioned. Chernov, J.A. has referred to R. v. Duncan [1998] 3 V.R. 208 at 214-5. Although I do not disagree with what has been said today, I wish to reserve my opinion as to the precise terms of the principles there summarised, especially as they have not been the subject of detailed argument today.

156. The circumstances here do not evidence any error on the part of the learned sentencing judge.

159. As to the applicant Stoforo, I would again agree with what the other members of the Court have said. I would add only, in deference to Mr Salek's earnest submissions, that I cannot accept that Stoforo truly had cold feet in relation to the conspiratorial exercise in which he was engaged on the day in question. Indeed, he said he did have "cold feet" at the time, as did the other two conspirators, or so I would gather, but that was only because the number of persons present near the target house made a retreat tactically necessary on the two visits. As he put it, "We just all agreed to leave". It was conceded in the end by Stoforo in the course of his record of interview that, if they had not been intercepted by the police, it was his intention to "go back tonight".

162. As to the seriousness of the offences and the applicant's role, it is enough to refer to the applicant's intention to use the nunchukkas at the house in the course of the intended robbery, and again that is apparent from a fair reading of the record of interview.

165. The sentence was well within the range appropriate for the offence.