R v Males [2007] VSCA 302

3 The appeal must be allowed because the sentencing judge was not told of a factor relevant to sentence. He was not told that the appellant had been held, and was continuing to be held, in protective custody.

4 This appeal was first heard on Monday 3 September 2007. Shortly prior to that hearing, an affidavit was filed by the appellant's current solicitor. Based upon what he had been told by the appellant, the solicitor deposed that the appellant had been held in protective custody continuously since 15 December 2005, when he was first remanded. The affidavit suggested that the appellant would remain in protective custody. The affidavit referred to restrictions placed upon the appellant as a result of being in protective custody. The affidavit suggested that the reason he was first placed in protective custody was because of an incident a number of years ago where he had been assaulted, and because, having been held in protective custody, he is now 'marked' by the mainstream prison population. There was also an affidavit filed by the solicitor who had appeared for the appellant before the County Court judge on the plea. That affidavit indicated that that solicitor did not have a clear recollection of being aware that the appellant was in protective custody. He deposed that if he had been aware of it, he believes he would have informed the County Court judge of that circumstance.

5 Where a prisoner is being held in protective custody, that is a factor relevant to sentence.[1] The extent to which it is to be taken into account in the prisoner's favour depends upon the source of the need for protection[2] and, of course, upon the particular circumstance and likely duration of the protection.

6 At the hearing on 3 September 2007, the Crown was unable to assist in relation to the circumstances of the protective custody or why the appellant was being held in protective custody. In those circumstances, the appeal was adjourned to enable further material to be filed. An affidavit of the appellant sworn 5 October 2007 was then filed. That affidavit produces correspondence with Corrections Victoria concerning the circumstances of the appellant's incarceration since 15 December 2005, and concerning his prior history.

7 The appellant disputes a number of statements made in the correspondence from Corrections Victoria. What is undisputed is that the appellant has been incarcerated in either protection units or management units throughout the relevant period. The appellant disputes the explanation given for the need for protection contained in the Corrections Victoria correspondence, and also disputes a statement made in that correspondence that ultimately prisoners within the protection regime are afforded the same opportunities in relation to participation in programs and obtaining services as are mainstream prisoners, although they are scheduled separately.

8 Further submissions have been heard today. One submission made by the Crown today was that there are circumstances in which the fact that a prisoner is in protection should not be taken into account at all. In my view, this appeal is not an appropriate occasion upon which to deal with that submission.

9 For the purposes of this appeal, it suffices to observe that the reasons for the appellant's protection status are related to conflicts with other prisoners, the causes of which are a matter of controversy; and that whilst it is not the case that prisoners in protection such as this appellant do not have any access to programs and services, the conditions are more burdensome than those in the mainstream. I also conclude, on the basis of the material now filed, that it is likely that the appellant will serve his entire term in a protection unit. In my view, this is a factor to be taken into account in favour of the appellant.

10 In the circumstances, the sentencing discretion is re-opened and it is necessary for this Court to impose an appropriate sentence. There were two accused on the presentment: the appellant and a co-offender named Danial Taylor. They were both charged with one armed robbery. Mr Taylor was charged with an additional armed robbery which did not involve the appellant. The appellant was charged with additional counts, being the theft and the count of recklessly endangering life.

11 The circumstances of the offences involving the appellant were as follows.

12 On Tuesday 13 December 2005 the appellant stole a 1984 Holden Gemini sedan from a car park in Footscray. This conduct was the foundation for the theft count (count 2 on the presentment).

13 On Thursday 15 December 2005 the appellant met Mr Taylor and another co-offender in the Footscray area. The appellant drove the other two offenders in the stolen Gemini to the Rifle Club Hotel, arriving there at approximately 6.30 pm. The appellant stayed in the car, whilst Mr Taylor and the other co-offender went into the drive-in bottle shop. They were armed with a steering lock and a small samurai sword or large knife. The two armed co-offenders approached the attendant and threatened him with the weapons. He complied with their demands to open the cash register. They stole $300 and then ran to the car and the appellant drove them away. This conduct was the foundation for the armed robbery charge against both the appellant and Mr Taylor (count 3).

14 Police observed the stolen Gemini in Laverton and attempted to intercept the vehicle. The appellant evaded the interception, travelling at a fast speed on the incorrect side of the road. A number of vehicles were forced to take what the tendered summary of facts described as 'extreme evasive action to avoid a major collision'. The traffic was heavy at the time. The police called off the pursuit as a result of concern about the danger to the public. These circumstances are the foundation for the count of reckless conduct placing persons in danger of death (count 4). The three offenders were apprehended a short time later after they had abandoned the car.

15 The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment. The maximum penalty for reckless conduct placing another in danger of death is 10 years' imprisonment.

16 The appellant is now 29 years of age. At the time of these offences he was 27 years of age. He has a very large number of prior convictions. He has many prior convictions for offences of burglary and theft and for drug offences. He has many prior convictions for driving offences. He has three prior convictions for offences involving the possession or carrying of regulated or prescribed weapons. He has a prior conviction for assaulting a police officer. He has a prior conviction for robbery. He has a prior conviction for assault with a weapon and a prior conviction for unlawful assault. He has four prior convictions for driving in a manner dangerous.

17 On the plea before the County Court judge a report was tendered from a psychologist, Mr Warren Simmons. The report details a sad personal history. According to that history, the appellant grew up as a lonely child. His father died when he was young; his mother is still alive. He has three older siblings with whom he apparently has no contact. He has spent time in institutions since he was eleven years of age. He was at Baltara, Turana and Malmsbury. He attended school erratically. He finally left school after several weeks of year 7.

18 The appellant has never had any consistent employment. Most of his adult life has been in institutions. As an adult he has been sentenced to terms of imprisonment on numerous occasions. He has also been dealt with by community-based orders, by an intensive correction order, and by suspended sentences.

19 According to Mr Simmons' report, the appellant demonstrates evidence of 'borderline personality traits that most probably do not reach the level to meet the full disorder' and he displays 'significant levels of institutionalisation'. The appellant's composite IQ score on testing was 73, placing him on the fourth percentile, meaning that 96% of people would do better.

20 When he was a teenager the appellant was in a relationship with a woman and they had a child together. That child is now approximately eleven years old. In his twenties he formed another relationship and had two further children who are each still very young.

21 The appellant has a significant history of drug and alcohol abuse and he asserted to Mr Simmons that the majority if not all of his offending has been drug related in some way.

22 A victim impact statement from the person working in the Rifle Club Hotel at the time of the robbery was also tendered. Amongst other things, the victim says: 'Although I received no injuries, I believed this was simply down to good luck. Had the offenders not been apprehended, I would not have felt safe at work and would have felt compelled to leave.'

23 The armed robbery co-offender, Danial Taylor, was sentenced by the same judge who sentenced the appellant. Mr Taylor was sentenced on 13 November 2006. He had pleaded guilty to two counts of armed robbery. He was sentenced to be released on a community based order for a period of two years on a number of specified conditions. In imposing this sentence, the judge said:**

But for your long-standing psychiatric illness and intellectual disability, I would be imposing lengthy terms of imprisonment for your offending.

**24 The material before the sentencing judge on Mr Taylor's plea revealed that he suffered from schizophrenia and that he had a very low IQ (67). Evidence was given before the judge of substantial attempts made by Mr Taylor to rehabilitate himself and to overcome his drug and alcohol problems. Mr Taylor had a number of prior convictions. He is approximately the same age as the appellant. Whilst Mr Taylor had prior convictions for drug offences and for dishonesty, he had no prior convictions for violence.

25 In the submissions made today, counsel for the appellant also referred to the disposition in relation to another offender associated with the appellant, not a co-offender, Mr Noblett.

26 The matters put in mitigation on behalf of the appellant were the following:**

(b) The fact that the co-offender Taylor was given a non-custodial sentence.

(c) The appellant's level of intellectual functioning, his disadvantaged childhood, his relative youth and his substance abuse.

(d) The offences were committed whilst the appellant was on parole. On 17 January 2007 his parole was cancelled, meaning he may have to serve a total sentence of five years three months. It was submitted that this circumstance ought to be taken into account when assessing the totality of the sentence.

(e) The fact that the appellant will have to serve his sentence in protection.

**27 I accept that all of these matters are properly to be taken into account and I do so.

28 It is also necessary to impose sentences which adequately punish the appellant for the offences, which deter him and others from committing similar offences, which protect the community, and which manifest the denunciation of the Court for conduct of this type.

29 The armed robbery offence and the offence of recklessly engaging in conduct that placed persons in danger of death were particularly serious.

30 It seems to me that a non-custodial sentence, such as was imposed on Mr Taylor, is not open. Whilst Mr Taylor's disposition is a matter properly to be taken into account, it is also necessary to take into account the fact that Mr Taylor's prior convictions are significantly less serious than the appellant's, that he suffers from the psychiatric illness of schizophrenia, and that on Mr Taylor's plea evidence was led which revealed that significant efforts at rehabilitation had been made by Mr Taylor.

31 As to the disposition in relation to Mr Noblett, I note that on the two armed robberies with which he was charged he was sentenced to terms of imprisonment of two years and two years six months.

32 In all the circumstances in the appellant's case it is necessary that a custodial sentence be imposed.

33 In my view the appellant should be re-sentenced as follows:**

Theft of the motor car (count 2 on the presentment): six months' imprisonment;

Armed robbery (count 3 on the presentment): two years six months' imprisonment.

Reckless conduct endangering life (count 4 on the presentment): 18 months' imprisonment.

34 Each of these offences was a separate criminal act. The theft occurred two days prior to the armed robbery. The driving after the armed robbery was separate to the armed robbery, although it was part of the same episode. Having regard to the principle of totality and bearing in mind in that connection the cancellation of the appellant's parole, I would order that three months of the sentence on the theft of the motor car (count 2) and 12 months of the sentence on reckless conduct endangering life (count 4) be served cumulatively with the sentence imposed on the armed robbery (count 3) and with each other. This would make a total effective sentence of three years nine months. I would propose ordering that the appellant serve two years nine months before being eligible for parole.

36 As Whelan AJA states in his judgment, there is no doubt that the fact that a prisoner is serving a sentence in circumstances of protective custody is a relevant sentencing consideration.[3] In this case the sentencing judge was not informed of the fact that at the time of sentencing the appellant was a prisoner being held in protective custody, and accordingly a factor relevant to sentence was not considered by him.

37 As is conceded properly by the respondent, evidence of events occurring prior to sentence and not the subject of consideration by the sentencing judge may be received on appeal in order to avoid a miscarriage of justice. Furthermore, the law is that evidence of an event occurring after sentence is admissible in the court's discretion in order to avoid a miscarriage of justice if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was not then known.[4]

38 Quite clearly, the relevance of the fact that a person is in protective custody will vary greatly depending upon the particular circumstances of such protective custody. A sentencing judge cannot give appropriate consideration to the issue of a prisoner being held in protection without appropriate material being put before her or him. When this appeal first came on for hearing before us, an affidavit sworn by the appellant's solicitor and filed on his behalf was before us. The affidavit stated:**

I am informed by the appellant and verily believe that since being sentenced he has been held in protective custody at Barwon Prison.

As stated by Whelan AJA, the further hearing of the appeal was adjourned in order to ascertain the full facts.

39 The material now before the Court makes it clear that the assertion that since the time that he was sentenced the appellant has been held in protective custody at Barwon Prison was incorrect. In fact he was being held in protection at Port Phillip Prison at the time of sentence. He was placed in protection at Barwon Prison between 19 July 2007 and 24 August 2007 and returned to Port Phillip Prison on 24 August 2007, where he was placed in a management unit. It would appear that subsequently he was returned to Barwon Prison, as he has sworn an affidavit dated 27 September 2007 stating that he is currently in Barwon Prison in protective custody. The information provided to the Court by a letter dated 14 September 2007 from the sentence management unit of Corrections Victoria states that the protection unit in which the appellant was placed at Barwon Prison provides mostly single cell accommodation. Prisoners in that unit are permitted out of their cells between 8.30 am and 3.50 pm and have access to services similar to those that are provided to mainstream prisoners. By his affidavit the appellant disputes that prisoners in protection have access to the same quality and extent of services and facilities as do mainstream prisoners. As Whelan AJA has observed, it is not necessary to resolve this factual dispute in order to conclude that the conditions of protection in which the appellant is held are more onerous than those for mainstream prisoners. Nevertheless, the information now before the Court throws much more light on the particular circumstances in which the appellant is held in protective custody.

**40 In recent times it has become common for counsel to make a submission from the Bar table that a particular prisoner is in protective custody or, alternatively, by reason of the nature of his or her offence, will be placed in protective custody, without the provision of any detail to assist the sentencing judge as to the degree of burden that may be placed upon that prisoner. A substantial proportion of prisoners in Victoria are in protective custody of varying types and for a variety of reasons. The circumstances of that protective custody can vary significantly. There are prisoners in protective custody in high security prisons, which custody places significant limits upon their ability to mix with other prisoners, engage in programs and access facilities which are otherwise available to mainstream prisoners. On the other hand, there are prisoners in protective custody in prisons which cater entirely for prisoners with a protected status, where access to all services, facilities and programs provided by the prison are in no way limited. It is incumbent upon counsel for both the prosecution and the defence to provide such information as is available as to the true circumstances of protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by that judge.

41 Subject to the above, I agree with the disposition of this appeal as proposed by Whelan AJA and for the reasons given by him.

42 I also agree with the disposition proposed by Whelan AJA and for the reasons which his Honour has given.

43 In relation to the question of protection as a sentencing issue, I agree with what Kellam JA has said and add the following for myself.

44 At the commencement of the Crown's submissions this morning, Mr Gyorffy contended that there was a policy issue which the Court needed to decide. He invited the Court to hold that the fact of being in protection was an irrelevant consideration - such that it would be an error of law for a sentencing court to take it into account - in the following circumstances:**

(a) if the protective custody was the result of (i) the offender's conduct in custody in the period leading up to the date of sentencing; or (ii) a decision of the prison authorities that the offender presented an unacceptable risk of violent behaviour while in gaol; and

(b) if the offender had previously spent time in protective custody, in relation to earlier offences for which imprisonment had been imposed, such that he/she should be taken to have appreciated that if there were further offending, any term of imprisonment imposed would be likely to be served in protection.[5]

**45 As to the first of these categories, Mr Gyorffy contended that the sentencing court would be bound to accept the statement of the prison authorities as to the reason for protective custody (whether it was because of the offender's conduct in custody or because of an assessed risk of violent behaviour). If those matters were averred by the prison authorities, so the submission went, it would not be open to the offender to dispute those matters before the sentencing court. The offender's remedy (if any) would lie in judicial review of the relevant decision by the prison authorities.

46 The submission distinguished violent behaviour by the offender, actual or apprehended, from violent behaviour against the offender, actual or apprehended, such as notoriously occurs in the case of sex offenders. In the latter class of case, protection is not said to be an irrelevant consideration, but the Crown relies on the decision in Burchell[6] for the proposition that relatively little weight should be given to it.

47 Mr Carter for the appellant submitted, in substance, that protection was a relevant sentencing factor in every case in which it arose; that the cause or explanation for the person being in protection was irrelevant and need not be enquired into; and that what matters for the sentencing court is the effect on the prisoner of being in protection.

48 These are matters of considerable importance. It does not appear that they have been considered by this Court at the level of principle now advanced by the Crown. I agree with my colleagues that it is not necessary to decide the policy issue in this case. Had it been necessary to decide the point, it would have caused very great inconvenience in this appeal. Although the appellant's affidavit about his prison conditions was filed in early October, it was not until yesterday, 27 November, that the Crown provided its submission on this issue. The submission was further refined in the course of argument this morning. The Court would have had no alternative but to reserve its decision and undertake an examination of the authorities raised in the late submission of the Crown. That would have further delayed a decision in the appellant's case.

49 Plainly enough, these issues will require careful attention in an appropriate case, and a close examination of the authorities.[7] But until that occurs, sentencing judges are entitled to treat the matter of protection as a relevant consideration. The weight to be attached to it will of course depend on the circumstances of the case and the evidence before the court. No authority has been cited by the Crown which holds that protection is irrelevant in any particular class of case. That is the decision which the Crown has made clear it wants this Court to make.

50 When these general issues are considered again, a number of matters will need to be investigated. For example, if the reason for the person being in protection is relevant, as the Crown says it is, how could it be fair to deny the offender the opportunity to argue before the sentencing court that the reasons for his being in protection are unsound or - though sound - are not properly attributable to any actual or threatened conduct on his/her part? On the other hand, if the protection decision followed a particular prison incident, how could the sentencing court possibly resolve any factual dispute about who was responsible for the incident?**

**51 Kellam JA is the former chair, and Whelan AJA is a current member, of the Parole Board. It was their experience at the Board which led the Court to adjourn the hearing of this appeal on the first occasion, in order to require much more detail to be provided about the actual conditions of the appellant's protection. As Kellam JA has pointed out, those conditions vary widely. It should now be clearly understood by defence counsel that, if they wish to rely on the factor of protection as a mitigating factor on sentence, in the absence of a Crown concession the mere assertion that a client is in protection will hereafter be treated as insufficient. Counsel will need to make clear to the sentencing court how the particular protection regime is said to make the offender's experience of imprisonment harsher than it would be if those conditions had not been imposed.

52 There is an important rider to this. Sentencing courts do not have the capability - nor, from a sentencing law point of view, is it necessary - to go through with a fine tooth comb evidence about the precise conditions under which the particular prisoner is held. There is no finely calibrated scale which can be applied in assessing the conditions of imprisonment. As with most other matters relevant to sentence, this is a matter of impression. It would be wrong if the differentiation which this Court is calling for at a general level - between conditions at prison A and conditions at prison B - were treated as an invitation to present a very precise account of which programs are or are not available to the particular prisoner and whether visitors are or are not allowed for this amount of time or that. It will, of course, be for counsel to identify those matters which are said significantly to affect the experience of imprisonment. It is only factors which can be so characterised which, in my view, sentencing courts can be expected to take into account.

1. The sentence imposed by the court below be set aside and in lieu thereof it be ordered as follows:

The appellant is sentenced on count 2 to six months' imprisonment; on count 3 to two years and six months' imprisonment; on count 4 to 18 months' imprisonment.

1. The Court orders that three months of the sentence on count 2 and 12 months of the sentence on count 4 be served cumulatively with the sentence imposed on count 3 and with each other, making a total effective sentence of three years and nine months.
2. The Court directs that the appellant serve two years and nine months before being eligible for parole.
3. The Court declares that a period of 720 days has been served by way of pre-sentence detention and that declaration and the fact of its making will be entered into the records of the Court.

[1] R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 149.

[2] R v ZMN [2002] VSCA 140; (2002) 4 VR 537, 543.

[3] R v Rostom [1996] VicRp 60; [1996] 2 VR 97; R v ZMN [2002] VSCA 140; (2002) 4 VR 537; DPP v Fraser [2004] VSCA 145; R v Bangard [2005] VSCA 313; (2005) 13 VR 146.

[4] R v Eliasen (1991) 53 A Crim R 391; R v Babic [1998] 2 VR 79 at 81; R v WEF [1998] 2 VR 385 at 388-9.

[5] ZMN [2002] VSCA 140; (2002) 4 VR 537 (Winneke P).

[6] (1987) 34 A Crim R 148.

[7] R v Rostom [1996] VicRp 60; [1996] 2 VR 97, R v Kasuliatis [1998] 4 VR 224, R v Abbott (1984) 17 A Crim R. 355, R v Babic [1998] 2 VR 79, 80 R v QMN, R v WD [2004] VSCA 32.