R v Paoletti [2003] VSCA 77

3 There was conflicting evidence in relation to whether some comment had been made to the appellant, who was standing near the entrance as the group exited the bar. According to Cronin, he heard one of his companions say "Bye bye, see ya later". He has asserted that he did not provoke in any way the appellant. It would seem clear, however, that the appellant believed that something had been said of an insulting or challenging character by Cronin as, in company with two other males, he confronted him.

4 The appellant took up a position on Cronin's right side, one of the other males was to Cronin's left whilst the third was behind him. The appellant then produced a handgun and placed the end of the barrel against Cronin's temple. He then uttered words to the effect "What did you say and why are you getting smart? Do you want trouble? Show some respect. You won't get smart next time, will you?" Cronin responded with words to the effect "No mate, no trouble. I'm not being smart." The appellant again asked him why he was being "smart" and again Cronin denied that that was the case. The appellant then moved the gun away from Cronin's head and, whilst it was still close, fired a shot in the air. He then "pistol-whipped" Cronin in

the area of the nose and lips with the inside edge of the butt and chamber and once more raised the gun to his head. Cronin stumbled, but was held up by the appellant and one of the other males. One of those males punched Cronin in the face.

5 By this time, Devercelli had emerged from the bar and had seen Cronin bleeding from the nose and mouth. He asked "What's going on?" and was also confronted by the appellant and one of his companions. The appellant inquired aggressively "You want some as well?" At that stage the appellant and the other male were standing on either side of Devercelli. The appellant produced the handgun from under his clothing and pushed it into Devercelli's temple, forcing his head sideways. He then made threats to Devercelli whilst holding the gun against his temple. Devercelli was submissive, understandably fearing for his safety. He said "Don't worry about it mate, I'm going." The appellant then responded "Yeah, you'd better go." Devercelli quickly walked away with his friends to the hotel car park. Security officers from the bar arrived at around this time and told everyone to move on.

6 Schmidt was also outside the Tram Bar at this point. The appellant and one of his companions then grabbed him and took up a position on each side. Schmidt's head was pushed forward and he was forced against a car in the car park. The appellant was facing him while the other man was on his left pushing him down vertically although he was still on his feet. The appellant had the handgun in his right hand and with it he struck Schmidt on the top and back of the head. The victim was then released. Security officers intervened by taking hold of Schmidt in order to get him away from the appellant and the other male persons. The appellant was yelling and he pointed the gun into the air and fired. He then went with his companions to his utility vehicle and drove out of the car park.

7 As a consequence of this incident, Schmidt sustained a one-and-a-half centimetre laceration to the vertex of his scalp. Cronin suffered a full thickness laceration to his upper lip and adjacent face area and a three millimetre cut on his nose, requiring suturing, antibiotic and tetanus toxoid treatment. With respect to the effect upon the victims of this alarming incident, the sentencing judge before whom the appellant subsequently appeared stated:

"No victim impact statements have been tendered in this matter. I have been informed that the victims were all offered the opportunity of making such a statement, but chose not to do so. It is clear from the depositions and the evidence I do have before me that there was considerable suffering on the part of the victims as a result of your actions, both from physical injury and from fright, or even perhaps terror is not a word that is inappropriate."[1]

8 The appellant was at the time a prohibited person under the Firearms Act 1996 being subject to a then current intervention order imposed at the Preston Magistrates' Court on 4 January 2001 for an operative period of 12 months. He was accordingly, at the time of these offences, prohibited from possessing, carrying or using a firearm pursuant to s.5 of the Act.

9 The appellant had 32 prior convictions from 14 court appearances between 1980 and 1994. They related (inter alia) to offences of violence, including three counts of rape, the possession of a firearm, escape from legal custody, making a threat to kill and criminal damage. They demonstrate a considerable propensity to the employment of violence and the threat of violence by him. However, it should also be pointed out that the sentencing judge said with respect to this history:

"The nature of some of those prior convictions is such that they are relevant to my task of sentencing you today. However, I note the age of those prior convictions; your last conviction was some eight years ago.

I also accept that in the last eight or more years there has been, for most of that time, at least, a greater degree of stability in your life than there had earlier been."[2]

10 On 13 December 2001 the appellant voluntarily attended at the Preston Police Station. He was arrested and his vehicle was searched. In it was found a fully loaded Smith & Wesson Victory .38 special calibre handgun. When interviewed by police on the following day, he made admissions as to his possession of this handgun, saying that he owned it and that he had loaded it. He admitted being at the Tram Bar on the night of the offences, but asserted that he had no recollection of the incidents I have described due to his state of intoxication. He said he had been drinking Scotch and Coke with black Sambucca chasers. He did not recall how much he drank and said that he had also used some amphetamine that morning. However, he said that the amphetamine had little effect upon him. He did not recall leaving the bar.

11 In due course the appellant was presented before the County Court sitting at Melbourne. He pleaded guilty to two counts of intentionally causing injury (counts 1 and 5), reckless conduct endangering a person (count 2), making a threat to inflict serious injury (count 3), common assault (count 4) and possessing a firearm whilst a prohibited person (counts 6 and 7).

12 After hearing a plea in mitigation of penalty, on 13 August 2002, the learned sentencing judge imposed sentences of imprisonment as follows:

His Honour directed that what he described as the "12 months effective sentence" imposed on counts 6 and 7 was to be served cumulatively upon the sentences imposed on counts 1 to 5, which, of course, in the absence of an order for cumulation were by operation of law to be served concurrently. This order created a total effective sentence of imprisonment for four years in respect of which a non-parole period of two years and three months was fixed.

13 Having been granted leave by a judge of this Court to do so, the appellant has appealed against the individual sentences imposed and the total effective sentence on three grounds, namely:

1. That the individual sentences are manifestly excessive.

1. That the sentencing judge erred in the order for cumulation made by him.
2. That the learned sentencing judge erred in dealing with the issue of prevalence in that there was no basis that similar offending was prevalent and further that his Honour did not give counsel an opportunity to address him on the subject.

14 In support of the contention that the individual sentences imposed upon the appellant were manifestly excessive, reliance has been placed on the following matters:

"(a) The injuries arising out of counts 1 and 5 were not of the long-lasting type and all of the complainants declined the opportunity to make victim impact statements.

(b) The incident was not one-sided; it involved violence on both sides; and may have been provoked by someone other than the appellant.

(c) As to count 2, which relies on the discharge of the firearm, there was no evidence that the gun was actually fired in anyone's direction. Accordingly, only the lesser form of the offence - "may have placed the said persons in danger" - was open.

(d) As to counts 3 and 4, they arose out of the same piece of behaviour towards the one victim - namely, the uttering to Mr Devercelli of the words "What? You want some as well?" and then holding the gun to his head.

(e) The appellant voluntarily attended the police station prior to arrest and made admissions to that which he could remember.

(f) He pleaded guilty at an early stage.

(g) He was remorseful.

(h) He suffered over a long period from unexplained blackouts.

(i) At the time of the offences, he was affected by alcohol.

(j) He had a history of anxiety and difficulty with stress and, at the time of the incident, was having difficulty coping with the break-up of his marriage of some 10 years to the mother of his four children.

(k) He had ceased drug use after the offending.

(l) He had largely reformed his life after early offending.

(m) He had displayed a consistent capacity for hard work.

(n) He had the support of his family.

(o) The judge found that the 'chances of [the appellant's] rehabilitation [were] reasonable'."

15 It is, I consider, evident from his Honour's sentencing remarks that he did direct attention to all of the possibly mitigatory considerations which had to be taken into account relating to the commission of these offences and specifically, all of the factors to which our attention has been directed. Nevertheless, he appropriately described the offending behaviour as most serious and unpleasant. His Honour could hardly be accused of exaggeration when he referred to the appellant's conduct as extremely violent and quite unacceptable. With respect to considerations personal to the appellant, he adverted to the appellant's plea of guilty, and the early stage at which it was intimated that this course would be adopted, the appellant's expressions of remorse which his Honour accepted as genuine, the medical and psychological history of the appellant, the evidence of indications that the appellant had largely reformed his life after early offending and ultimately his Honour expressed the view that the chances of the appellant's rehabilitation were reasonable. There is, in relation to none of these matters, any justification for concluding by reference to his sentencing remarks that his Honour may have fallen into error with respect to the weight to be attributed to any relevant sentencing consideration nor can any such inference be drawn from the sentence handed down for any of the individual offences involved.

16 In support of this ground three contentions have been advanced. First, it has been argued that the form of the order made by his Honour that the effective sentence of 12 months imposed on counts 6 and 7 was to be cumulative upon the other sentences imposed makes it difficult to determine what proportion, if any, of each of the sentences on counts 6 and 7 has contributed to the 12 months' cumulation. In my opinion this argument lacks force. There is nothing whatever in his Honour's sentencing remarks or disposition which suggests that any order for cumulation as between the sentences imposed on counts 6 and 7 was being made by him. It appears clear that he intended that those sentences were to be served concurrently but cumulatively upon the sentences imposed on other counts.

17 The second argument which has been advanced is that the order is problematic in the particular circumstances of the case as it gives rise to the possibility that there may have been the imposition of some degree of double punishment in two respects. First, the claim was made, the possession of the firearm in count 7 is the same continuing act of possession as in count 6. There was no suggestion of any discontinuity of possession in the period between the two dates, indeed in so far as an inference can be drawn, there is nothing which would support the commission of more than one continuing offence. Whether or not the laying of two separate charges in respect of the one period of possession was legally permissible was, counsel argued, unclear. However, even if that could be lawfully done, it was singularly inappropriate to lay separate charges where there was a single period of possession involved. I do not consider that there is any need in the context of the present matter to explore the question whether it was proper to lay two separate charges of possession, as I consider that the second point advanced by the appellant with respect to the possession of the handgun on 30 November 2001 possesses substance. There was clearly in the sentences imposed for the other offences committed on that night a component referable to the possession of the handgun. At one point in his sentencing remarks, his Honour stated:

"The aggravating aspects include the fact that a hand gun was placed to the head of a victim on two occasions; was twice fired; and was used to pistol whip a victim.

You must have understood both the great risk to life and limb that was involved, as well as the probable consequences of your actions. The victims of the crimes were both physically injured and terrified."[3]

"Crimes of this type have become far too prevalent in our community, especially those involving the use of hand guns."[4]

18 Recognising that the possession of the handgun constituted a separate offence, I am nevertheless left with a strong sense of unease that some degree of double punishment may have been involved in the sentence imposed for the offences based on the conduct of the appellant and the possession of the gun itself on that night. In that circumstance, I would propose that, notwithstanding the appellant's plea of guilty, the conviction and sentence on count 6 be set aside.

19 The sentence imposed on count 7, which related to the possession of a fully loaded handgun two weeks later, cannot be regarded as being outside of the range of those available to the sentencing judge in the particular circumstances. Nor do I consider that it has been demonstrated that his Honour fell into error with respect to the order cumulating the sentence on count 7 upon those handed down for the various offences committed on 30 November 2001. Count 7 related to a quite separate offence committed at a significantly later time. I observe in this context that the learned sentencing judge made no order for cumulation to encompass the separate assaults and victims involved, as he well might have done, and clearly treated them as elements of a single episode of offending. It was appropriate to differentiate between that offending conduct and the offending which was constituted by the possession of the handgun two weeks later.

20 In his sentencing remarks, his Honour expressed the view that "crimes of this type have become far too prevalent in our community, especially those involving the use of handguns". As counsel for the appellant pointed out, before a sentencing judge can have regard to the prevalence in the community of the engagement of individuals in a particular type of offending behaviour, in the determination of the sentence to be imposed in the particular matter, some reliable foundation must exist for the conclusion that the behaviour is indeed prevalent (whatever that may mean). As Callaway, J.A. made apparent in R. v. Downie and Dandy[5], both the notion of prevalence and the manner in which it may bear upon the determination of an appropriate sentence in a given case present difficulties.

21 To what forms of criminal activity his Honour was referring when he used the expression "crimes of this type" in the course of his sentencing remarks is by no means clear. Certainly this Court is regularly confronted with cases involving violent confrontations in the vicinity of hotels and other places of public resort. The term "road rage" is one with which the community has regrettably become too well acquainted. Not infrequently, weapons of a variety of kinds, including handguns, are employed by the assailants in a wide variety of situations, sometimes with tragic consequences to victims. The occurrence of incidents involving extreme and totally inexcusable violence in public places is a matter of notoriety and has received considerable community attention over several years. There is ample justification for saying that such behaviour has been far too prevalent, using that word in a very broad sense.

22 The judge who sentenced the present appellant was one of the most experienced in the County Court and may, as a result, have been well positioned to express the opinion that he did. For my part, I have no statistical or anecdotal information as to whether the use of handguns in the precise circumstances present

here can be appropriately described as prevalent, and I have no perception that it may be. However, I consider that his Honour almost certainly did not intend that his remarks should be interpreted in that fashion. It is much more likely that he was making a general remark concerning a well-recognised problem in our society.

23 Accordingly, I am unpersuaded that he fell into error in this respect. In any event, there is nothing to indicate in his Honour's sentencing remarks that whatever view he may have held with respect to the prevalence of "crimes of this type" impacted upon the sentences handed down, which were in all the circumstances moderate. Whether described as prevalent or not, the resort to terrifying and life-threatening violence of the character employed by the appellant merits the imposition of a substantial term of imprisonment in order to reflect the seriousness of the conduct itself and to act as a deterrent to others.

24 It follows from what I have said that I would, however, allow this appeal, set aside the conviction and sentence imposed in respect of count 6 but otherwise confirm the sentences handed down in the court below.

The appeal is allowed. The conviction of the appellant on count 6 is quashed and the sentence imposed in respect thereof is set aside. The Court directs that the 12 months effective sentence on count 7 be served cumulatively upon the effective sentence on

counts 1 to 5 inclusive. Save as aforesaid, the Court otherwise confirms in all respects the sentences imposed in the County Court on 13 August 2002.

The Court declares that as at this day, 5 June 2003, the period of 540 days is the period to be reckoned as already served under this sentence and directs that the fact of the making of this declaration and its details be entered in the records of the Court.

[5] [1998] 2 V.R. 517 at 520-523.