R v K C F [2006] VSCA 270

1 This is an appeal with leave against a total effective sentence of five years' imprisonment with a non-parole period of two-and-a-half years imposed on the appellant by a judge of the County Court in respect of one count of arson (count 1) and one count of theft (count 2), to both of which the appellant pleaded guilty.

2 The grounds of appeal are that the judge erred in determining that the appellant's role in the offending was very much more serious than that of his co-conspirators; that the judge erred by holding that the appellant's undertaking to give evidence against his co-conspirators earned him no more than a small reduction in sentence; and that the individual sentences and the total effective sentence were manifestly excessive.

The Facts

3 The appellant was born on 26 September 1981 and at the time of the offences on 7 July 2004 he was 22 years of age and living with his partner, AB, at the home of CD. CD was the mother of the appellant's friend, EF, who also lived at the house. CD's daughter, GH, and CD's niece, JK, lived at the house as well. EF worked as an apprentice baker and for the purposes of his employment he had been issued with a key to the bakery.

4 On a number of occasions before the offences were committed, EF complained of having to work in the evenings. He suggested to his sister and cousin that they take his key and "mess up" the bakery so that he would not have to work for a few days. He told them that their reward would be that they could take a sum of between $5,000 and $7,000 which was said to be kept on the premises. They refused to do so. CD then became involved in attempts to persuade the appellant to mess up the bakery and to steal the money, and eventually she persuaded him to do so. At 2 a.m. on Wednesday 7 July 2004, he went to the bakery, equipped with a backpack containing a bottle of petrol and a rag and a cigarette lighter, and gained entry using EF's key. While there, he stole a sum of $400 which he found on the premises and he then set the premises alight causing damage to the premises and to two adjoining premises and a van parked outside in the street, to the value of $419,886.

5 The appellant was arrested and interviewed on 17 February 2005 and admitted entering the bakery with the key. As he told it, CD had pressured him into doing it while he was under the influence of alcohol and amphetamines. He said that she had given him EF's key to the bakery and told him to steal the money which was claimed to be on the premises, and to burn the place using petrol from her shed. The appellant also made a statement to that effect and undertook to cooperate in giving evidence if necessary against the alleged co-offenders.

6 At the plea on 14 March 2006, the judge expressed the view that it was "an unusual situation when the main perpetrator of the offence is giving evidence against the support cast, as it were". The prosecutor replied:

"It is and isn't, your Honour. It depends on how you look at what happened. As I understand it, although [the appellant] is the person that attended and lit the fire, the prosecution takes the view that it was really at the behest of [CD] and that she, even though she didn't attend, was the prime mover behind all of this."

Apparently not content with that response, the judge observed:

"[Despite] the extent of the urging if the person hadn't lit the fire there wouldn't have been any carnage, would there? It's all very well to say he was urged to do this and to get the $7,000 that wasn't there, but it is his actions that caused the damage."

"Indeed it is, your Honour, but it's akin, perhaps - the way the prosecution sees it - it's akin perhaps to a contract killing case where someone does the killing, but at the bidding of a principal who doesn't perform any physical act other than arrange for a killing to take place. I should indicate this to your Honour, perhaps in fairness to my learned friend and his client, it is the position of the Director of Public Prosecutions, your Honour, that even if [the appellant] adopts the statement that is provided in evidence and gives an undertaking that he is prepared to co-operate and give evidence against other alleged co-offenders, that notwithstanding that the only sentence that's appropriate in this case is a sentence of actual imprisonment to be served immediately, and that is so, your Honour, because of the serious nature of the offending and the substantial damage that has been done and the substantial interference to other people's lives and businesses, so it is not a situation where the prosecution is saying to Your Honour 'We'll look at him in a low level light'. The prosecution shares Your Honour's view that he's the man that went and lit the fire and caused the damage."

7 Thereafter, the appellant gave evidence in which he adopted his statement and he was cross-examined on it in a fashion that was plainly designed to confirm it. In his sentencing remarks, however, the judge said that:

"Accepting your allegations against the co-accused [CD], your role in the matter is very much more serious than that of your co-conspirators. You alone entered the premises and lit the fire. Your undertaking to give evidence earned you no more than a small reduction in sentence."

Ground 2

8 Under ground 2, counsel for the appellant submitted that, because the appellant's evidence was in accordance with the Crown opening and uncontradicted, it was to be assumed that the judge accepted the evidence and therefore that his Honour sentenced the appellant on the basis that CD was the prime mover of the offences and that she had prevailed upon the appellant, when he was intoxicated by alcohol and amphetamines, to commit the crimes. If so, counsel contended, the only way in which the judge could have come to the conclusion that the appellant's role was more serious than that of his co-conspirators was by reasoning erroneously that a principal before the fact cannot be as culpable as, or more culpable than, a principal in the first degree.

9 That contention was not seriously opposed by counsel for the Crown, and in my view there is force in it. It is clear that the judge did accept the appellant's version of the events. As his Honour put it in his sentencing remarks, he accepted the appellant's allegations against his co-conspirators. Despite that evidence, however, his Honour held that the appellant's role in the offences was very much greater than that of CD. The implication is, therefore, that, although the judge accepted that CD was the controlling mind of the criminal enterprise, and that the appellant was in effect her lackey, his Honour considered that he was bound to treat the appellant's offending as more serious than CD's conduct because the appellant was the principal in the first degree and CD was only an accessory before the fact.

10 With respect, however, the judge was not compelled to regard the relative gravity of offending in that fashion. The law is that an accessory before the fact may well be regarded as more blameworthy and so receive a heavier sentence than a principal in the first degree. The point was made by Stephen, J. in Johns v. R.[1] as follows:

"Each of the parties has complicity in the crime: each has knowingly assisted in different ways, in its commission. Where the crime in question does not involve a mandatory sentence, their respective roles may of course bear upon the sentences to be imposed upon conviction, but not necessarily in a manner favourable to the accessory before the fact, who may prove to be more blameworthy of the two. As Glanville-Williams points out, Lady Macbeth was surely more blameworthy than was her husband, and 'The master mind and guiding spirit of a crime ring will probably receive a heavier sentence than his tools.' However the respective roles should not of themselves attract to each a different criterion of liability."

Similarly, Brooking, J.A. observed in R. v. Franklin:[2]

"It is well accepted that an accessory before the fact may play the paramount role. 'The accessory may play a dominant role ... in respect of the commission of the crime'.[3] The accessory may be the mastermind and guiding spirit and the others mere tools.[4] In early writings it is commonplace to find command as one of the verbs used to describe the role of the accessory before the fact."[5]

To the same effect in Director of Public Prosecutions v. SJK,[6] in a passage which was referred to with approval by the High Court,[7] Phillips, C.J. and Chernov and Vincent, JJ.A. noted that:

"The notion that, as a general proposition, an aider and abettor would be expected to receive a lesser penalty is one which must be approached with considerable circumspection. Even a moment's thought would bring to mind a number of realistic scenarios in which the culpability of an aider and abettor could be properly regarded as being at least equal to, if not significantly greater than, the principal offender. A shrewd or vicious individual, for example, who incites an intoxicated or less mentally competent or otherwise vulnerable individual to act in an extreme fashion could hardly be regarded as entitled to a lesser penalty. Obviously, whether or not an aider and abettor should get a different penalty to that imposed upon the person who undertakes the commission of the offence must be determined in the light cast by all of the circumstances bearing upon the offence and the offender involved. We do not understand the court in Bannon v. Calder to have suggested otherwise."[8]

11 On the version of the facts which the judge said that he accepted, CD told the appellant to go to the premises, burgle them, and then set them alight, and she armed him with the tools with which to do it. As the prosecutor put it in his submission on the plea, she was the moving force of the crime and the appellant was simply carrying out her directions. On either analysis, as it seems to me, she was the Lady Macbeth of the criminal enterprise, and so, while it is arguable that the appellant's culpability was as grave as hers, it was surely no graver.

12 In the result, in my view, ground 2 is made out.

Ground 3

13 Under ground 3, counsel for the appellant contended that the judge was also in error in holding that the appellant's undertaking to give evidence earned him no more than a small reduction in sentence. The argument here was that the appellant's plea of guilty and undertaking against his co-accused entitled him to a substantial discount on sentence, and that the one year which the judge allowed could not reasonably be regarded in the circumstances as a substantial discount.

14 Counsel for the Crown responded that while the one year which the judge said that he allowed was not particularly large, it did not follow that there was an error. He accepted that the appellant made a useful offer of assistance and thereby qualified for a discount, but he submitted that it is not the law that someone in the appellant's position was thus entitled to the sort of substantial discount of the order of up to, say, fifty percent which is sometimes allowed in drug and other serious cases. Each case, he submitted, has to be assessed on its merits, which in this case included the following:

• The appellant's offer of assistance was made at a relatively early stage. He was arrested and charged on 17 February 2005 and made a sworn statement on 19 August 2005 referring to the involvement of others, and his statement clearly implicated CD as a counsellor and procurer to burglary, theft and arson, and implicated EF in the burglary, theft and criminal damage, and also arson.

• Neither CD nor EF was ever presented for trial, but, as counsel for the Crown disclosed with typical frankness in introductory remarks this morning, presentments were prepared for the purposes of trying them on charges of arson and it is not known why they were not proceeded with.

• CD and EF each pleaded guilty to charges of burglary based on intention to steal and theft. Those pleas, however, were entered very late - shortly before the trial was due to commence. The appellant was ready and willing to give evidence against them at trial and would have but for their pleas of guilty.

• As counsel for the Crown submitted, however, the evidence of the appellant was not the only evidence against CD and EF, at least on the counts of burglary and theft; for in their respective records of interview[9] each of them had made significant admissions, if not confessions, but denied being part of any further plan to commit arson.

15 Plainly, an offender who has given assistance to the prosecuting authorities is entitled to be considered leniently. The policy is embodied in the sentencing principle stated in s.16A(2)(h) of the Sentencing Act 1991.[10] It is in the public interest that thieves and other offenders be encouraged to fall out and so facilitate the exposure and prosecution of criminals who might otherwise go undetected or unpunished. Leniency in sentencing is calculated to have that effect. Furthermore, to adopt Callaway, J.A.'s reasoning in R. v. Duncan[11] and to adapt it to the sorts of discounts that are to be allowed for cooperation with the police and the prosecution, in a time of rising sentences the discount should be more, rather than less.

16 No doubt cooperation does not necessarily lead to the sort of discount of up to fifty percent that may sometimes apply in drug and other cases where an offender's assistance is of special significance or comes at very great risk to himself or herself, or where for some other reason such massive leniency is warranted. As Callaway, J.A. also said in R. v. Duncan,[12] in each case it is a matter of exercising a wide discretion according to the facts and circumstances of the case. In this case the task called for an informed consideration of the matters mentioned by the Crown and an intuitive assessment of the discounts which should be applied.[13]

17 Given the very considerable experience of the sentencing judge, it might have been assumed that his Honour would have approached the matter on that basis. But, with all respect, I find it hard to see that a discount of only one year in a case of this kind provides adequate reward for the sort of cooperation that was offered. Despite the fact that ultimately the appellant did not give evidence against the co-accused, the judge was not aware that that would be so, nor was he aware that CD would not be tried for arson. Equally, his Honour could not have known that she would plead guilty to other offences. It was also said at the plea hearing that but for the appellant's undertaking to give evidence, the prosecution of CD would be very difficult, and perhaps impossible with respect to the count of arson. Inasmuch as the judge approached the matter on the basis that the appellant's offending was necessarily more serious than that of CD, I also consider that the appellant's counsel is correct that his Honour's determination of the appropriate level of discount was to that extent informed by error.

18 Given my conclusion that ground 2 is made out, it is perhaps unnecessary to reach a concluded view on ground 3, but I should say that as at present advised I consider that a discount of only one year did not sufficiently reflect the level of discount which was warranted in the circumstances of this case.

Ground 1 - manifest excessiveness

19 In light of what I have said about grounds 2 and 3, it is unnecessary to reach a concluded view about the ground of manifest excessiveness.

Resentencing

20 The sentencing discretion having miscarried, it falls now to this Court to re-sentence the appellant afresh.

21 I start with the fact that although the appellant was induced by CD to commit the offences, and so far as I can see she was principally responsible, the nature and gravity of the appellant's offending must still be regarded as being of a serious order. As the evidence disclosed, the offending was not altogether spontaneous, but to some degree premeditated in the sense that the determination to undertake it evolved over a period of time in response to the blandishments of CD. The offences were also to some extent motivated by greed, in that the appellant intended always to have his share of what he believed would be between $5,000 and $7,000 to be found on the premises. As well as that, the appellant admitted under cross-examination that he understood what he was doing and that he understood it would have serious consequences, and, as the Crown points out, he also had the clarity of mind to secure what he thought to be his rightful share of the proceeds and to destroy incriminating evidence very shortly after leaving the scene of the crime. Moreover, the one count of arson with which he was charged was in effect a rolled-up count, incorporating the three buildings and the vehicle which he damaged, the financial cost of which was in excess of $400,000, not to mention the financial and emotional consequences for the owners of the businesses conducted from the premises. It is plain, for example, from the victim impact statement of the owners of the bakery, that they suffered very significant dislocation and financial deprivation.[14]

22 The judge set out in some detail the personal circumstances of the appellant and his criminal history. As there appears, he had a difficult childhood and adolescence, which led to the abuse of alcohol and amphetamines, and they played a part in the commission of the subject offences. At the time of the offences he was in a stable relationship with a young woman but for one reason or another he had absented himself from his regular employment and he was indulging himself in a life of indolence and the abuse of alcohol and amphetamines. He admitted to two previous court appearances on the second of which, in March 2002, he was convicted of a number of offences, including three of criminal damage for which he received a good behaviour bond and a fine, and it is significant that he committed the subject offences whilst on a good behaviour bond.

23 The maximum sentence for the offence of arson is 15 years' imprisonment and for the offence of theft is 10 years' imprisonment. The nature of the offences in this case calls for sentences which reflect the court's denunciation of the appellant's conduct and which provide general deterrence. It is also apparent that, despite previous opportunities to mend his ways in the form of lenient sentences and non-custodial dispositions, the appellant continued to offend, and with increasing seriousness. The sentences now to be imposed must therefore provide an appropriate degree of specific deterrence, as well as just punishment for the damage and for the hardship which his offending has imposed on others.

24 Those considerations need then to be balanced against his early plea of guilty and his undertaking to co-operate to give evidence against his co-accused, and what appears to me from his plea and undertaking and from his evidence at the plea hearing to be genuine remorse. I also bear in mind his significantly disadvantaged background, his relative youth and the primacy of rehabilitation for which it calls, and the favourable prospects for rehabilitation which the stability of his relationship with his partner and the birth of their first child may be thought to imply.

25 It was submitted by counsel for the appellant that it was necessary as well to allow for some degree of parity as between the sentence to be imposed upon the appellant and the sentences which were imposed upon his co-offenders. In support of that contention, counsel referred to observations of Eames, J.A. in R. v. Pham and Nguyen,[15] where his Honour said that he did not think it appropriate to exclude the possibility that even where co-offenders are sentenced in respect of different crimes, parity may have a role to play. It appears to me, however, that counsel for the Crown is correct in the submission that the answer to the appellant's contention appears also in the observations of Eames, J.A. in R. v. Pham and Nguyen, to the effect that where the sentences in respect of which co-offenders are sentenced are significantly disparate, there really is no room for any degree of parity. As it seems to me, that is so here. Upon the version of facts which was accepted by the sentencing judge, the co-offenders were to a substantial if not equal degree involved in the offences for which the appellant was sentenced. But in the end they were convicted and sentenced only for offences of much lesser gravity.

26 Balancing those considerations to the extent I am able, I would re-sentence the appellant on count 1, for the offence of arson, to a term of imprisonment of three years, and on count 2, for the offence of theft, to a term of imprisonment of six months, making for a total effective sentence of three years' imprisonment. Bearing in mind his youth, the degree of his remorse, and what I assess to be his chances of rehabilitation, I would set a non-parole period of 18 months.

27 It should be understood, however, that the sentence and non-parole period I propose are markedly below the levels that would ordinarily be appropriate for offences of the nature and gravity committed by the appellant. It is only because of the significant discounts on sentence that I think are to be allowed for his plea of guilty and, more importantly, his undertaking to give evidence for the Crown against his co-offenders that such a degree of leniency may be regarded as warranted in this case.

The sentences passed below are set aside and the appellant is re-sentenced on count 1 to a term of imprisonment of three years and on count 2 to a term of imprisonment of six months, making for a total effective sentence of three years' imprisonment.

A period of 18 months is fixed before the appellant is to be eligible for parole.

It is declared that a period of 260 days of the sentence has already been served and it is ordered that the fact that the declaration has been made and its details be entered in the records of the Court.

[1] [1979] HCA 33; (1979) 141 C.L.R. 409.

[2] [2001] VSCA 79; (2001) 3 V.R. 9.

[3] R. v. Demirian [1989] VicRp 10; [1989] V.R. 97 at 116 per McGarvie and O'Bryan, JJ.

[4] Johns v. The Queen [1980] HCA 3; (1980) 143 C.L.R. 108 at 117 per Stephen, J.

[5] See, for example, 1 Hale, Pleas of the Crown, 233, 435, 615; Foster's Crown Law, (1762), pp 126-7; 2 Hawkins, Pleas of the Crown, ch 29, s 16; 4 Blackstone, Commentaries, 36-7. See too the direction given by Lord Campbell CJ in R. v. Bernard [1858] EngR 554; (1858) 1 F & F 240 at 242; [1858] EngR 554; 175 E.R. 709 at 710.

[6] [2002] VSCA 131.

[7] GAS v. The Queen [2004] HCA 22; (2004) 217 C.L.R. 198 at 209[23].

[8] My emphasis.

[9] See for example the very brief passages referred to by the appellant's counsel: Plea Transcript at pages 19-21.

[10] R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97 at 103, per Charles, J.A.; see also R. v. McGookin & Robinson (1986) 20 A. Crim. R. 438; R. v. Su [1997] 1 V.R. 77-79; R. v. Duncan [1998] 3 V.R. 208; R. v. Ritter [2000] VSCA 135 at [15]- [16].

[11] [1998] 3 V.R. 208.

[12] {1998} 3 V.R. 208 at 214.

[13] R. v. Nguyen [2006] VSCA 184 at[16].

[14] See Exhibit B : Victim Impact statement of Mr Murashkin.

[15] [2006] VSCA 68 at [21]- [22].