R v Mangelen [2009] VSCA 63

2 On 25 June 2007, the appellant was sentenced by a judge of the County Court to a total effective sentence of six years and four months' imprisonment, with a non-parole period of five years, on one count of aggravated burglary, two counts of theft, one count of possession of a drug of dependence and one count of being a prohibited person in possession of a registered firearm. It was noted in the court records that he had served 400 days of pre-sentence detention.

3 A summary of the offences to which the appellant pleaded guilty is conveniently set out in the sentencing remarks of the learned sentencing judge.

On 21 June 2006, about 1.10p.m; you went to the rear of a property at Unit 1, 210 Wilsons Road, Whittington. You had with you a bag which contained various tools, screwdrivers, pliers, a pen light and tin snips and you also had with you a point 22 calibre sawn-off-rifle. You forced open the rear door and entered the unit. You searched through the bedrooms and cupboards and removed items of property and placed them in a blue coloured suitcase, which you also located in the unit.

At about 1.15pm.; the victims Ronald Casey and Sue Winter returned home from shopping and entered the unit via the front door. As they entered the hallway you confronted them and pointed the point 22 firearm at them. You told them to get into the unit and shut the door. Winter dropped the shopping bag and handbag she was carrying to the floor, turned around and ran from the unit to call police from a neighbouring flat.

The victim Casey was able to identify you as a person he knew as Seifu and he believed that you lived in Whittington. Casey backed out into the front yard while you had the firearm pointed at him. When Casey was in the street he saw you run out the front of the unit dragging the blue coloured suitcase and Winter's handbag. You went to a nearby house and spoke to occupants and whilst you were at the premises you asked if you could use the phone to make a phonecall and you made a phonecall to a person and conveyed to that person that you were 'in trouble and needed help'. You were then driven from the area by some other people and you were in the back of a car covered by a blanket or a sleeping bag. That vehicle was intercepted by police and you were arrested. Various items including the sawn-off 22 calibre rifle were

located, 12 pounds of point 22 ammunition [were] also located.

4 Upon the appellant's arrest the appellant provided the investigators with a detailed false account in an attempt to avoid responsibility. He displayed no sign of remorse. The sentencing judge regarded the offence as a very serious one calling for a substantial sentence.[1] The appellant did not challenge that view.

5 The appellant had previously been convicted in September 2003 on two counts of aggravated burglary, theft and causing serious injury recklessly and had been sentenced to three years' imprisonment with a non-parole period of 14 months. The appellant had been released from prison on 10 December 2004 after serving the non-parole period. Consequently, all of the present offences were committed whilst the appellant was on parole.

6 As was explained in R v Piacentino and Ahmad,[2] the Sentencing Act 1991 has the effect that the sentencing judge was not permitted to take into account the possibility that the Parole Board may thereafter cancel the appellant's parole and require the parole term to be served. The sentencing judge could not take into account the fact that the appellant was likely to be claimed by the Parole Board and required to serve his parole sentence.[3] Accordingly he fixed the sentences without regard to the possibility that the appellant could be required to serve that parole sentence.

7 Following the imposition of these sentences, the Parole Board in fact cancelled the appellant's parole on 17 October 2007.[4]

8 Leave to appeal was granted in September 2008 in the expectation that the appellant would be permitted to tender fresh evidence to establish the fact of the cancellation of his parole and prove the parole sentence that he is now serving.[5] That evidence, it was submitted, would lead to the sentencing discretion being re-opened because the head sentence and non-parole period infringed the principle of totality when regard was had to the parole sentence which the appellant must now serve.

9 After the sentences the subject of this appeal were imposed, the appellant was sentenced in the County Court on 21 August 2008 on one count of cause serious injury. That offence was not disclosed in the affidavit filed by the appellant's solicitor which detailed the circumstances relied upon as the fresh evidence in the appeal. This was so although the appellant's solicitor was well aware of the further offence. No explanation has been offered for this omission.

10 The following detail of that offence dealt with on 21 August 2008 is based upon the reasons for sentence which were eventually obtained by the Court. The offence occurred on 20 September 2006, whilst the appellant was on remand in the Melbourne Remand Centre for the present offences. He, together with another prisoner with whom he acted in concert, stabbed a fellow inmate. He disputed the Crown contention on the plea that the offence was premeditated. The sentencing judge inevitably concluded that it was. The appellant was sentenced to a term of 18 months' imprisonment and it was ordered that 12 months of that sentence be served concurrently with the sentences he was then serving and that 6 months be served cumulatively on those sentences. The sentencing judge acceded to a request on the appellant's behalf that she not fix a non-parole period.[6] Accordingly, there being no minimum sentence fixed, the 6 months sentence was to be served immediately and before the appellant continued to serve the balance of the non parole period of the sentence the subject of appeal, or his non parole sentence.[7]

11 Although it is not a prior conviction, that sentence is relevant in a number of respects. One of them is that as a consequence, the appellant is currently serving sentences with an estimated release date of 16 February 2015 and an earliest release date of 21 December 2011.

12 The appellant's solicitor affirmed a further affidavit on the day of the appeal, in which she deposed to an incident in which the appellant was allegedly stabbed at Fulham prison in March 2008. She deposed that he had been kept in solitary confinement for most of the time since that incident and that he did not have access to a number of prison privileges.

13 The affidavit detailed the injuries which the Director of Medical Services of St Vincent's Correctional Health had informed the deponent had been sustained by the appellant in March 2008.

14 The solicitor's affidavit, like its predecessor, made no reference to the incident which had occurred on the 26 September 2006.

15 Counsel relied upon the alleged circumstances of the January 2009 incident as further fresh evidence in support of a submission that the appellant's imprisonment had become more burdensome than for an ordinary gaol inmate.[8] It is not in doubt that such evidence may constitute fresh evidence and may in any event be relied upon on the appeal in the event that the sentencing discretion is re-opened.[9]

16 Counsel, when pressed by the Court, outlined in very general terms, the circumstances in which the appellant claimed to have been stabbed. He informed the Court that on his instructions, the stabbings of 2006 and 2008 were not connected. The circumstances of the incident in March 2008, which he outlined, were inconsistent with the content of an incident report read to the Court by counsel for the respondent. On its face, this report suggested that another prisoner had also been stabbed and that the appellant had been re-located and placed in confinement as a punitive measure.

17 As there was a conflict between the parties as to these matters, counsel for the appellant requested an adjournment to enable him to obtain further instructions and sought leave to file further evidence on this issue if so advised. We acceded to those requests.

18 Pursuant to that leave, an affidavit[10] of the appellant was filed which set out his account of the incident in March 2008 at Fulham prison. An affidavit of his solicitor, to which I shall subsequently refer, was filed on the same day.

19 In substance, the appellant stated that he and a friend, without warning or justification, had been attacked by a group of Asian prisoners who were armed with knives, that in defending himself he grabbed one of those prisoners, and that it was that prisoner who was then stabbed by one of the other prisoners who was trying to stab the appellant. He deposed that he had not been charged with any offence nor had faced any Governor's Proceeding as a result of the incident.

20 The following day, a further affidavit of the appellant was filed. There, he explained that he had been attacked because he was Asian but had refused to associate himself with the Asian group of prisoners at the prison. He further deposed that he had been placed in solitary confinement for his own safety. He set out the various locations in which he had been locked down for periods varying between 22 and 24 hours per day. He said that after some six months he had been moved to a location where he was 'allowed out between 8.30 am and 2pm.' Finally, he referred to another incident in which, on 29 January 2009, a prisoner was assaulted. The appellant had only been in the unit for seven days. He was visiting another cell and whilst four other prisoners were present the prisoner was assaulted. He deposed that he was not involved in the assault but that the staff just assumed he was responsible.

21 The further affidavit affirmed by the appellant's solicitor exhibited a letter from Corrections Victoria received two days earlier. It stated that the incident of March 2008 had been referred to the police for investigation. It noted that the appellant had several positive drug tests during his time in prison and had he had suffered loss of privileges and increased security rating in response to those tests. It referred to the decision of the Sentence Management Panel that heard from the appellant in relation to the March 2008 incident and considered that he should be placed in long term management pending him demonstrating consistent positive behaviour. It referred to the incident of January 2009 in which it was alleged the appellant had assaulted another prisoner. It noted that the police had reported that the victim had identified the appellant, and that as a consequence the appellant had been returned to long term management.

22 The respondent, in accordance with the leave granted, also filed an affidavit . The deponent, Brendan Money, Acting Assistant Commissioner, Offender Management Services, Corrections Victoria, deposed that the incident of 29 January had been referred to police. An incident report exhibited to the affidavit records that the victim informed staff that it was the appellant who assaulted him.

23 The affidavit set out a quite substantial list of prison offences, primarily revealing continual positive drug tests and breaches of good order.

24 According to the affidavit, no police action was taken in relation to the March 2008 assault because the prisoners made statements of no complaint.

25 Further according to the affidavit, the appellant had been carefully managed to reduce his access to drugs and to prevent him being involved in assaults with other prisoners.

26 The affidavit set out the conditions of the appellant's management over his time in prison. Whilst the appellant has been placed in a single person cell at Barwon, he is released for a number of hours each day and is able to exercise and mix with a limited number of prisoners. The deponent disputed the appellant's assertion that he had been placed in solitary confinement .

27 It was submitted on behalf of the appellant that as a consequence of the appellant's liability to serve the parole sentence of 22 months together with the further sentence of 6 months, the total sentence which the appellant was required to serve infringed the totality principle so that the head sentence and non-parole period of the present sentences should be reduced.

28 Historically the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender's criminality.[11] The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence.[12] In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence.[13] The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an 'unjust or inappropriate measure of the total criminality involved' the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle.[14] The principle is to be applied to both the fixing of the head sentence and the non-parole period.

29 The principle has also been considered applicable where the sentence currently being served derives from a breach of parole.[15] The transposition of the principle to such circumstances is not without its difficulties. If the parole sentence has been enlivened as a direct consequence of the offences on which the offender falls to be sentenced, considerations of fairness and leniency to the prisoner, which in part inform the principle, may require a different emphasis. That may be particularly be so with respect to the non-parole period.

30 In R v Alashkar and Tayar[16] this Court held that evidence of the cancellation of the parole subsequent to the sentencing of the appellant was admissible in this Court on the appeal against sentence by way of fresh evidence[17] so as to explain the true significance of the appellant's breach of parole. The court recognised that upon receiving the evidence of the revocation of the appellant's parole and the additional period of custody which the appellant must serve, the interests of justice required that the principle of totality should be applied to the entirety of the sentence which the appellant might have to serve.[18] But in Alashkar the Court recognised the importance of the context in which the principle is to be applied. The Court said:

[40 ] The consideration of that principle must take into account the obvious intention of s.16(3B)of the Sentencing Act that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed. In our view, taking that matter into account, together with all other relevant circumstances including the length of that sentence, the sentence imposed cannot be said to be an unjust or an inappropriate measure of the total criminality involved. The appeal should be dismissed**.**

31 While the respondent concedes that the fresh evidence constituted by the cancellation of parole should be admitted and the principle of totality applied, an evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence.[19] It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[20] The court must then consider whether the sentence imposed for the subsequent offending and which breached the parole, has produced an overall result out of proportion to the criminality represented by the two sets of offences.[21] The Court may intervene if the total sentence is an 'unjust or inappropriate measure of the total criminality involved.'[22] In such a case the new sentence which the appellant has been required to serve might be moderated[23] so that the total of the sentences to be served does not offend the totality principle.[24]

32 Maxwell P stated in R v Cochrane[25] that the fresh evidence re-opens the sentencing discretion, 'not because the judge made an error but because of the necessity of reviewing the sentence in the light of the fresh evidence.'[26] The appellant referred to authorities that have said that where parole is cancelled, the principle of totality must 'bulk large' in the determination of the aggregate term of imprisonment imposed for the later offences. Those cases are not authority for the proposition that the principle will be given a more beneficent application in such circumstances. There is no reason why that should be so. Nor should it be assumed that this Court must intervene or impose a different sentence simply because the parole term has been enlivened and added to the sentence which is the subject of the appeal.[27] Such an approach wrongly assumes that the sentence that has been imposed cannot be appropriate once the offender is required to serve further time in custody. A court may conclude that the sentence remains the correct sentence or is within the range of sentences that are reasonably open where the offender is required to serve a parole sentence. That was the view reached by this Court in decisions such as R v Mourad,[28] R v Cochrane[29] and R v Scholes.[30] Indeed, it may transpire that the circumstances in which this Court will feel compelled to interfere may prove to be uncommon.

33 Where parole has been granted and subsequently cancelled, the offender will by definition have completed the non-parole period of that sentence. If upon sentencing for the offence which caused the cancellation of the parole, the parole sentence is cumulated on the new sentence - a result mandated by the Sentencing Act 1991 unless there are exceptional circumstances - the offender will be required at least to serve the non-parole period of that sentence. If the non-parole period of that sentence is calculated only by reference to the head sentence of the subsequent offence, and not by looking at the total period the offender may be likely to spend in custody, the practical effect will often be a longer than usual parole period. This consequence may be the intended effect of the legislative policy behind s 16(3B) of the Sentencing Act 1991.

34 Section 16(3B) provides that where an offender commits an offence whilst released into the community on parole, that sentence should be cumulative upon any other sentence imposed unless there are exceptional circumstances.[31] The legislative policy which underlies s 16(3B) was explained in Alashkar where the Court observed:

the obvious intention of s 16(3B) of the Sentencing Act [is] that where an offender commits a crime while released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed.[32]

35 Accordingly, once this Court has admitted the fresh evidence and the sentencing discretion is re-opened, s 16(3B) will apply. This Court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B).[33] It was not suggested that any exceptional circumstances existed that would permit any part of the new sentence to be made concurrent with the parole sentence. Appellant's counsel accepted that his client was not entitled to a more favourable outcome because the parole has been cancelled after sentence had been imposed than if he were sentenced at a time when he was already serving the parole sentence.

36 Totality is not a principle to be applied without regard to the components of the instinctive synthesis. The parole sentence may impact on the sentence to be imposed but the consideration of totality does not override nor should it engulf other critical sentencing considerations. In this as in most cases the need to impose a punishment that reflected the objective gravity of the offence, general and specific deterrence, protection of the community and prospects for rehabilitation were a critical part of the sentencing synthesis.

37 At the time of sentence the appellant was 25. His counsel drew attention to his guilty plea - albeit entered at a late stage. He also relied upon the appellant's relatively young age, upon the circumstance that at the time of the offending he was undergoing relationship troubles and had been living on the streets, and upon his dysfunctional home life and lack of a male role model. Counsel further submitted that we should take account of the fact that the appellant had completed some 18 months of his parole without apparent incident. That said, as the appellant's drug abuse was the motive for the commission of this offence and as he was found armed with a sawn off .22 rifle and had possession of other firearms and house breaking equipment at the time of the offence, it was accepted by his counsel that it was evident that he had not been leading an entirely lawful existence for some period of time prior to the offence.

38 The appellant had 18 previous convictions from nine court appearances between 1998 and 2003. The convictions included theft, burglary, causing serious injury reckless, causing serious injury intentionally, assault and causing injury recklessly. The learned sentencing judge described it as 'a history of serious criminal offending' which led him to conclude that the sentences would need to accommodate 'a strong need for specific deterrence and community protection'. His Honour found that the appellant has little or no prospect of rehabilitation - a matter relevant to totality.[34] He had gone through only limited programs to assist with rehabilitation. The further offence committed on remand, which does not appear to have been drawn to the sentencing judge's attention, serves only to fortify his Honour's view that the appellant's rehabilitative prospects are bleak. The report of the psychologist, tendered on the plea, did not provide any reason for a more positive outlook. Neither do the consistent positive drug tests in prison.

39 Other relevant findings made by the sentencing judge were that the appellant had a severe, unresolved and untreated drug problem and that he had not been deterred from offending by previous terms of imprisonment.

40 As the appellant contends that his period in prison is more burdensome than could have been anticipated at the time of sentence, the onus is upon him to satisfy this Court on the balance of probabilities that he is not responsible for the circumstances in which he has found himself. The fresh evidence filed and the response thereto shows that there is plainly a dispute between the parties as to the circumstances surrounding the incidents in prison in 2008 and 2009. This dispute was not elucidated as neither party sought to cross examine the other's witnesses but was content to rely upon their submissions as to the weight that we should attach to the materials upon which they relied. Counsel for the appellant submitted that as the appellant had not been contradicted as to his explanation for the assault in March 2008 and as his more onerous prison placement commenced after that date, we should conclude that it could not be attributed to any fault on his part. That bold submission cannot be sustained.

41 Counsel conceded during argument that we were entitled to take into account the appellant's willingness to dissimulate about other matters such as the circumstances in which the aggravated burglary was committed. We may also have regard to the probabilities when considering the appellant's account of how the other prisoner came to be stabbed. I do not consider that the material enables any conclusion to be drawn about the incident in March 2008 involving violence. Further, appellant's counsel did not seek to refute the consistent positive drug tests which in part apparently explain the appellant's prison placements. The affidavit sworn by Mr Money, and the letter from Corrections Victoria exhibited to the affidavit of the appellant's solicitor affirmed 24 March 2009 suggests that the appellant has been taken out of mainstream and placed in management because of his misbehaviour generally. Viewed as a whole, the material falls well short of satisfying the burden that the appellant must discharge in establishing mitigating circumstances.

42 There is a limit to the extent to which considerations of totality can operate to reduce the punishment that would otherwise be imposed.[35] I am not persuaded that when the parole sentence and further sentence are added to the head sentence, the period of imprisonment which the appellant may have to serve can be said to be an unjust or inappropriate measure of his total criminality so as to require a reduction in the head sentence of six years and four months. Cumulation of the sentence for the further offence and the parole sentence on the present sentence is not inappropriate. The total time that the appellant may have to serve in custody is not incommensurate with the gravity of the entirety of his criminal conduct. If one were to ask what would have been the likely effect if the appellant had been serving the sentence of six months followed by the parole period at the time that the present sentences were fixed, I consider that these sentences would have been entirely appropriate.[36] The period of imprisonment is not one that could be said to be 'a crushing sentence and not in keeping with his record and prospects.'[37]

43 As to the submission that the non-parole period should be reduced, I do not accept that some 'merciful intervention' is called for to reduce the effect of the non- parole period. No sound reason has been advanced why it should follow that the non-parole period should be reduced because the total period that the appellant may have to serve in custody has been increased. The offences which gave rise to the present sentences not only involved a breach of parole but were offences of the same kind as the offences on which he was on parole. Having been arrested for the commission of the present offences, the appellant while in custody was then involved in violence of a very serious kind. As I have explained, the sentence imposed for that offence was to be served first and before he continued to serve the non parole portion of the present offences. I am quite unpersuaded that the non-parole period should be reduced in the present circumstances. Considerations of justice and fairness do not require it.

[1] DPP v Vucko [2008] VSCA 270.

[2] [2007] VSCA 49; (2007) 15 VR 501.

[4] Parole owing at 17 October 2007 was 1 year 9 months and 29 days.

[5] R v Alashkar and Tayar [2007] VSCA 182; (2007) 17 VR 65.

[6] Consequentially, no requirement to impose a new minimum sentence arose. See s 14 Sentencing Act 1991.

[7] See s 15 Sentencing Act 1991 as to the order in which sentences must be served. See R v Kennedy [2008] VSCA 263, [25].

[8] R v Rostom [1996] VicRp 60; [1996] 2 VR 97.

[9] R v Duy Duc Nguyen [2006] VSCA 184, [67].

[11] Mill v The Queen (1988) 166 CLR 59, 63.

[12] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295.

[13] Mill v R; Postiglioni v R [1997] HCA 26; (1997) 189 CLR 295 at 308 per McHugh J; Berkelaar v R [2001] VSCA 143, [22].

[14] R v Hunter [2006] VSCA 129; [2006] 14 VR 336, [30].

[15] R v Sullivan [2005] VSCA 286, [20] (Eames JA).

[16] [2007] VSCA 182; (2007) 17 VR 65.

[17] Ibid, [12]. See also R v Riem [2007] VSCA 283, [36].

[18] Berkelaar v R [2001] VSCA143, [22]; A_lashkar and Tayar,_ [10]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.

[19] R v Alashkar and Tayar, [38]; R v Sullivan [2005] VSCA 286, [20] (Eames JA).

[20] Thomas DA, The Principles of Sentencing (2nd ed, 1979), 56-57; Mill v The Queen (1988) 166 CLR 59.

[21] DPP v Rongonui [2007] VSCA 274.

[22] R v Alashkar and Tayar [2007] VSCA 182; (2007) 17 VR 65, [40].

[24] R v Hunter [2006] VSCA 129; [2006] 14 VR 336, [30].

[25] [2008] VSCA 60.

[26] R v Cochrane [2008] VSCA 60, [6].

[27] R v Alashkar and Tayar [2007] VSCA 182, [40]; R v Scholes [2007] VSCA 303.

[28] [2008] VSCA 4, [14], [16].

[29] [2008] VSCA 60.

[30] [2007] VSCA 303.

[31] R v Alashkar and Tayar [2007] VSCA 182; (2007) 17 VR 65, [40]. This abrogates the general rule in s 16 (1) of the Sentencing Act 1991 that sentences are to be served concurrently.

[33] R v Piacentino and Ahmad [2007] VSCA 49; (2007) 15 VR 501, [63] (Eames JA).

[34] Mill v The Queen (1988) 166 CLR 59.

[35] R v Randall-Smith [2008] SASC 99, [56] (Doyle CJ).

[36] Mill v The Queen (1988) 166 CLR 59.

[37] Postiglione v The Queen (1997) 189 CLR.