R v Mann [2005] VSCA 141

"The learned sentencing judge erred in his consideration of totality by failing to have regard to the time owed by the appellant to the New South Wales Parole Board."

5 The appellant admitted 63 prior convictions, mainly for offences of dishonesty, dating back to 1978 when he was 17 years old. In all, he had 14 previous court appearances, on the last of which he was convicted on 20 February 2000 in Sydney of receiving stolen goods and sentenced to five years' imprisonment with a non-parole period of three years and four months. The offence with which we are here concerned was, therefore, committed shortly after his release from prison upon this sentence and certainly while he was on parole. The unserved balance of the New South Wales sentence is one year and three days.

6 The sentencing judge noted that the appellant was at risk of serving the balance of his New South Wales sentence but did not take this into consideration having regard to s.5(2AA)(a) of the Sentencing Act 1991. Under s.170 of the Crimes (Administration of Sentences) Act 1999 (NSW), where an offender has failed to comply with a condition under a parole order, the New South Wales Parole Board may revoke the parole order, may impose further conditions on the order or vary any existing conditions of the order. On 6 February 2004 the Parole Board revoked the parole order, effective as at 4 April 2003, and issued a warrant for his apprehension. If and when he is returned to custody in New South Wales, he may apply to the Parole Board with respect to its revocation order. So much appears from a letter from the Department of Corrective Services of New South Wales dated 16 May 2005, which was not before the sentencing judge.

7 The totality principle requires a judge imposing sentences upon an offender for a number of offences to review the aggregate sentence to determine whether this is just and appropriate. Where the sentences in respect of which this principle is said to apply are imposed by courts in different States, the principle has application only where the offences are closely related in time and character.[1]

8 In the present case the offence of receiving stolen property occurred in New South Wales in 1997 and that of armed robbery in Victoria on 4 April 2003. There is, to my mind, an insufficient concurrence in time and in the character of the offences to warrant the application of the totality principle. Notwithstanding this, it was, of course, appropriate for the sentencing judge to have regard to the reality of the position in which the offender found himself in order to determine the impact of the sentence which he was required to impose.

9 Counsel for the Director conceded before us that s.5(2AA)(a) of the Sentencing Act 1991 did not have application to the acts of an executive other than that of the State of Victoria, but contended, notwithstanding this, that his Honour was correct in not using the unserved New South Wales sentence to reduce the sentence he was imposing on the basis of totality. He pointed out that the fact that the offence here was committed at a time when the appellant was on parole, wherever that may have been imposed, is an aggravating factor. I would prefer not to express any concluded view upon the application of s.5(2AA)(a). The reality of the appellant's situation appears to be that it is highly unlikely that he will be required to serve the unserved balance of the New South Wales sentence in addition to that imposed in this State. It follows that this prospect should not form a significant factor, if any, upon the sentencing process in this case.

"The learned sentencing judge erred in finding that the crime was carefully planned."

10 The sentencing judge accepted the prosecution's submission that the crime was carefully planned over two days, that is, on 3 and 4 April 2003. These periods commenced with the appellant's response under a false name to the advertisement published in the Trading Post on 3 April and continued through the negotiations and meetings held with Mr Mizerni on that day and the following day. His Honour did not include in this the events of February, which, of course, could not have taken place in anticipation of the advertisement and the contact made with Mr Mizerni. There is nothing in this ground.

"The learned sentencing judge erred by imposing a minimum term that is insufficiently disparate from the head sentence."

11 The disparity here was two years. Having regard to the prior history of the appellant, the prospect of rehabilitation must appear poor. The crime called for a penalty which would fulfil the objective of general deterrence and furthermore to act as a specific deterrent to the appellant, who may otherwise be tempted to continue with his career of dishonesty, perhaps in an aggravated form. This ground, too, fails.

"The head sentence and non-parole period are manifestly excessive."

12 The maximum sentence available for armed robbery was 25 years' imprisonment. Although the value of the stolen property was not large, the crime was a serious one and one that must have been very frightening for the victim, an American exchange student.

13 The prior history of the appellant is indeed a dispiriting one showing a career of dishonesty dating back over 27 years. He is now some 43 years old, most of the adult years of which have included a period of imprisonment. The use of a weapon on this occasion is very disturbing. The fact that he was then on parole is another aggravating factor. He has shown no remorse. A severe sentence was called for.

14 It is clear from the sentencing remarks that the judge had regard to his plea of guilty and to the programs which the appellant had completed while in prison in 2004. Although there are certain technical difficulties with the sentence imposed, I am unable to conclude in all the circumstances that it was manifestly excessive.

15 I therefore propose that the appeal be dismissed.

18 The order of the Court will be that the appeal is dismissed.

[1] Mill v. R. (1988) 166 C.L.R. 59 at 63-4, 66.