R v Heazlewood [1998] VSCA 33

"So the result of the proceedings this morning is that on each count you are sentenced to three and a half years' imprisonment. By operation of law those sentences will be concurrent and I do not fix a minimum term."

Thus, no reasons were attached specifically by his Honour to his declining to fix a non-parole period, though ordinarily some statement of those reasons may be expected: R. v. Sener (unreported, Court of Appeal, 22 May 1997) at p.4 per Batt, J.A., R. v. Watts (unreported, Court of Appeal, 18 February 1998) at pp.4-5 per Charles, J.A. In this instance, however, the reasons are patent from his Honour's general sentencing remarks and there was no need for him to say more. It was obviously the past history of the offender that made the fixing of a non-parole period inappropriate.

24. It is difficult to sketch the applicant's criminal history briefly, but I mention first the offending for which he was being sentenced. That consisted of three robberies, committed upon three banks, on 10 October, 16 October and 19 October 1990. On each occasion, the applicant was acting in concert with one Dale Eric Charles Browne, who was sentenced for his part in these crimes by the same County Court judge on 4 November 1994. The amount stolen on the first occasion was $7,458, on the second, $3,350 and on the third $16,442, and so far as I am aware, none of this has been recovered. On each occasion, a stolen car was used, the two men wore balaclavas and dark clothing, the applicant carried a firearm with which he menaced the bank staff and customers and the applicant's co-offender jumped over the counter and removed cash from the tellers' cash drawers. Each robbery was conducted very quickly, taking less than a minute from the time of entering the bank to leaving with the stolen money. None the less, those who were menaced were put in great fear. Browne, the applicant's co-offender, was charged with the car theft that preceded the bank robbery on each occasion, as well as with armed robbery. The applicant was charged simply with armed robbery. At the time of these offences, the applicant was 22 years old. On pleading guilty, the applicant admitted 71 previous convictions from seven Court appearances between 29 January 1986 and 31 October 1989. These included 36 convictions for theft, four for burglary, four for assault related offences, three for escaping lawful custody and two for failing to answer an undertaking of bail.

27. It appears that shortly after the offences with which he was charged on this occasion were committed, the applicant and his co-offender decamped to Western Australia; for both were arrested there on 30 October 1990. They were then remanded in custody for offences committed in that State. The applicant was subsequently tried, convicted and sentenced in Western Australia for a number of offences, including breaking, entering and stealing and conspiracy to commit armed robbery. For those offences, he was sentenced on 1 November 1991 to imprisonment for 4 years and 11 months. On 14 April 1992, he made an application to be transferred to Victoria under the Prisoners (Interstate Transfer) Act 1983 : the application was refused.

30. On 14 June 1993, the applicant was released from prison, having been granted parole. He was also granted bail in respect of an application by the Victoria police for an extradition order, which was to be heard on 17 June. On 17 June, the applicant appeared in the Magistrates' Court in Perth and contested the application for an extradition order. The order was granted, but the effective date was postponed for 12 months and the applicant was granted bail in the meantime. Less than a month later, on 14 July, the applicant was arrested and charged with further offences, including theft of a motor vehicle - offences committed after 14 June. The applicant was subsequently convicted and sentenced to further imprisonment for 12 months. The applicant again became eligible for parole on 14 June 1994, but parole was refused because the applicant refused to accept the proposed conditions of his parole. He also contested subsequent proceedings to have him brought back to Victoria under the Prisoners (Interstate Transfer) Act 1983 . On 21 February 1996, he was convicted of escaping from legal custody and sentenced to a further six weeks' imprisonment. On 17 September 1996, he was convicted of assaulting a public officer and sentenced to a further eight months' imprisonment.

33. Finally then on 23 October 1996, the Magistrates' Court at Melbourne committed the applicant for trial on the three charges of armed robbery, now at issue. The applicant entered a plea of guilty at that stage and on 12 December 1996, he came before the County Court judge when he was sentenced as already described, to imprisonment for three and a half years on each count. At the time the sentence was imposed, the maximum penalty for armed robbery was 20 years' imprisonment and s.10 of the Sentencing Act no longer applied. However that was not so at the time of the offences and the previous maximum penalty, then applicable, was 25 years' imprisonment. The sentencing judge had available to him not only the applicant's admission of previous convictions for offences committed prior to the date of these armed robberies; he had a table setting out the applicant's 10 subsequent convictions and the sentences imposed in Western Australia between 13 September 1991 and 17 September 1996. He also had a series of victim impact statements.

36. It remains to say something of the applicant's co-offender Browne. He was arrested with the applicant on 30 October 1990 in Western Australia and he too was tried, convicted and sentenced on a number of offences in that State. He was released from prison in Western Australia on 23 October 1993 and then extradited on the application of the Victoria police, to Victoria. On 11 October 1994, he was presented in the County Court and he pleaded not guilty to a presentment containing three counts of armed robbery and three counts of theft of a motor car. On 17 October, after an unsuccessful application to exclude evidence of his admissions to the police, Browne changed his plea to guilty. He admitted 27 previous convictions from eight Court appearances between 12 June 1984 and 15 March 1990, including three convictions for armed robbery and one for attempted armed robbery. On 4 November 1994, he was sentenced on all six counts, on each count of robbery being sentenced to six years' imprisonment. All sentences were made concurrent and the total effective sentence of imprisonment was therefore six years. His Honour fixed a non-parole period of five years. In the course of his sentencing remarks, the learned judge canvassed the relevant principles, particularly the principle of totality as explained in R. v. Mill (1988) 166 C.L.R. 59, making it plain that on that account the sentence of six years was considerably less than would otherwise have been ordered.

39. I mention this sentencing of Browne because, it is apparent that his Honour had that sentence in mind when sentencing the applicant. In the course of the plea, there was considerable discussion about the operation of the principle of totality and his Honour mentioned the sentence he had earlier imposed in November 1994 on Browne. After mentioning Mill, he said:-

"That exercise has been discussed this morning and you are aware that your co-accused Browne when he came before me in November 1994 was sentenced to a term of imprisonment of six years with a minimum of five. That is without question a lenient disposition for offences of this kind but that disposition was imposed in obedience to the principle of Mill."

Further, immediately before announcing his decision to sentence the applicant to a term of imprisonment of three and a half years on each count, the learned judge said:-

"I believe in obedience to the principle of Mill that you must be sentenced to what seems to be a lenient sentence for your offending but I repeat the sentence is made in contemplation of the fact that you have spent the majority of the period since October 1990 in prison. Browne's sentence contemplates his release in 1999, that is the termination of the head sentence."

His Honour then announced the sentence of three and a half years imprisonment (in terms earlier quoted), adding that in the result the applicant's release date would be about May 2000. It is apparent that his Honour was tailoring the sentence of the applicant to the previous disposition of the co-offender Browne.

46. Because counsel relied upon it, I mention the aspect of rehabilitation. Counsel said that the judge, in sentencing the applicant, had given insufficient weight to this aspect. But the judge said this:-

"As you have heard the principle of Mill is in part concerned with acknowledging efforts of rehabilitation and your counsel, in his submission, was not able to place anything before the court by way of rehabilitation save and except that there is a light at the end of the tunnel on the basis of the continuing support that you have from your mother and the commencement of a relationship with a woman who is prepared to stick by you and hopefully start a new life when you complete the term of imprisonment that you must - and you realise you must serve for this offending."

On any view, a sentence of three and a half years for the armed robberies here in question, given the circumstances of the offending and the offender, is extraordinarily lenient. It can be explained only, as did the judge, by reference to the principle of totality as explained in Mill. In deciding not to fix a non-parole period, his Honour was plainly exercising the discretion conferred upon him by the concluding words of s.11(1) commencing "unless". In terms of that provision, his Honour was of the view that "the nature of the offence or the past history of the offender [made] the fixing of [a non-parole period] inappropriate". In those circumstances, s.13(1) of the Sentencing Act has no application.

51. As adjusted by s.30 of Act No.109 of 1994, s.13(1) reads as follows:-

"(1) The failure of the sentencing court to fix a non-parole period in accordance with section 11 does not invalidate the sentence but-

(a) the [Court of Appeal] in respect of a sentence imposed by the Supreme Court or the County Court; or

(b) the County Court in respect of a sentence imposed by the Magistrates' Court -

may, on the application of the offender or of the Secretary to the Department of Justice fix a non-parole period in accordance with that section in any manner in which the sentencing court might have done so."

What enlivens the jurisdiction of the Court of Appeal under s.13(1) is "the failure of the sentencing court to fix a non-parole period in accordance with section 11" and in my view that means a failure by the sentencing court, in one way or another, to follow the dictates of s.11 (whether express or implied). It is not simply the omission of the sentencing court to fix a non-parole period; it is the failure of that Court "to fix a non-parole period in accordance with section 11". That might come about by a failure of the sentencing court to abide the direction in s.11(1) that it "must, as part of the sentence, fix" a non-parole period; or it might come about by the sentencing court purporting to fix such a non-parole period, but doing it otherwise than as required by s.11; for instance, by failing to abide the injunction in s.11(3) that the non-parole period "must be at least six months less than the term of the sentence".

59. In this instance, it was otherwise: the sentencing court did not ignore the injunction imposed upon it by s.11(1) that it "must, as part of the sentence, fix" a non-parole period; for that injunction is itself qualified by the clause commencing "unless". The view of the judge was that "the nature of the offence or the past history of the offender" made the fixing of such a period inappropriate and therefore the sentencing court cannot be said to have disobeyed the injunction otherwise placed upon it by s.11(1). There was, then, no "failure of the sentencing court to fix a non-parole period in accordance with section 11", if only because in failing to fix a non-parole period his Honour was acting strictly in accordance with s.11. Acting in accordance with s.11 sometimes involves failing to fix a non-parole period, and the introductory words of s.13(1) should not then be rearranged to read a "failure in accordance with s.11 to fix a non-parole period"; that is not what s.13(1) says. As I read it, s. 13(1) is concerned with irregularity when the sentence imposed is measured against the provisions of s.11 - and I refer to what I say in this regard in R. v Arnold (a not dissimilar case in which we are delivering judgment today). Suffice it to say here that the concern of s.13(1) with irregularity seems confirmed by the express provision that a relevant "failure" of the sentencing court "does not invalidate the sentence" and by the authority conferred on the Secretary of the Department of Justice to mount an application under s.13.

62. In the course of the argument, we were much pressed with the decision of the Court of Criminal Appeal in R. v. Lange (unreported, Crockett, Marks and Hampel, JJ., 5 November 1993). In that case, the applicant under s.13(1) of the Sentencing Act 1958 had been sentenced to an effective total term of 54 months' imprisonment by a County Court judge. According to the judgment:-

"Despite the fact that the term of imprisonment imposed by [the County Court judge] was in excess of 24 months, his Honour refused to fix a non-parole period pursuant to the section because he 'considered that the nature of the offence or the past history of the offender made the fixing of such a period inappropriate'. The Court is of opinion that it has jurisdiction to entertain the application made to it, and that, in the exercise of that jurisdiction and in conformity with submissions made by counsel both for the applicant and the respondent, it should entertain the application by way of a hearing de novo."

In the upshot, the Court considered the material put before it, which was more, it appears, than was available for consideration at first instance, and decided to fix a non-parole period of 36 months.

67. The judgment, which was ex tempore, was very brief. There was no consideration given to the question of jurisdiction; the Court said no more than appears above. The diligence of counsel discovered for us the written outline of submissions put before the Court on behalf of the applicant. Paragraph 1 asserted that the Court had jurisdiction, citing R. v. Governor of Her Majesty's Gaol at Pentridge, ex parte Cusmano [1966] VicRp 78; [1966] V.R. 583 at 584-5 and R. v. Adler [1972] VicRp 38; [1972] V.R. 345 at 347-8. Neither case justified the assertion made. In Cusmano, a minimum term of three months had been fixed though the head term was only nine months and accordingly there was irregularity in that the sentencing court did not have the duty, nor did it have the power, to fix a minimum term: Crimes Act s.534(1). So too in Adler there was irregularity in that a minimum term of nine months was fixed though the head term was effectively 12 months, in contravention of s.534(1) (which by amendment required at least six months' difference between head term and minimum term). Neither case dealt with an exercise of discretion not to fix a non-parole period, though the head term was in excess of 24 months; yet that was the position under consideration in Lange. In the outline of submissions for the respondent, no reference was made to jurisdiction and, in the upshot, I think that the expression of opinion "that [the Court] has jurisdiction to entertain the application made to it" should be treated as made per incuriam. For all we can tell now, the question of jurisdiction under s.13(1) went by default and, with respect, the expression of opinion in Lange should not be taken as standing against our adopting the contrary view after full argument.

70. During argument I was for a time attracted by the possibility that s.14 of the Sentencing Act might have applied to require that a non-parole period be fixed. Section 14 was not relied upon by Mr Holdensen in his very comprehensive and interesting submission on behalf of the applicant, and upon further consideration I agree that it has no application here. So far as material s.14 reads:-

"(1) If- (a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and (b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period-

the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete."

It appears from the material before us that at the time when the applicant was sentenced on this occasion in Victoria, he still had some months to serve in gaol before becoming eligible for parole under sentences imposed in Western Australia. Under s.27 of the Prisoners (Interstate Transfer) Act, upon the applicant's transfer to Victoria under an order made under the corresponding legislation in Western Australia the sentences imposed upon him in Western Australia fell to be treated in Victoria as imposed locally. Arguably s.14(1)(a) was then satisfied, but even if that were so (and I do not decide that it was) s.14(1)(b) remained to be satisfied - and it was not. Paragraph (b) depends upon the sentencing court on the later occasion imposing "a further term of imprisonment in respect of which it proposes to fix a non-parole period" and that was not so here. For the reasons already canvassed the Judge did not propose to fix a non-parole period under s.11 and so s.14 was not called into play.

76. For these reasons, I would dismiss this application under s.13(1) on the ground that the jurisdiction thereby conferred upon the Full Court has not been called into play. In a case in which the sentencing court is required to act under s.11(1) and declines to fix a non-parole period because it considers that the nature of the offence or the past history of the offender makes the fixing of such a period inappropriate, the remedy lies not in s.13(1) but in an application for leave to appeal against sentence. See for example R. v. Denyer [1995] VicRp 12; [1995] 1 V.R. 186; compare R. v. Gibb [1997] 2 V.R. 576.

81. I have had the advantage of reading in draft the reasons for judgment prepared by Phillips, J.A. I concur with his Honour's reasons for judgment. I agree that the application made under s.13(1) of the Sentencing Act 1991 should be dismissed.