R v Rodden [2005] VSCA 24

5. He also admitted 13 findings of guilt and 28 convictions relating to prior offending by him and arising out of 11 court appearances between April 1990 and September 2000. For the most part, they were concerned with offences of dishonesty and the use of and trafficking in a drug of dependence. However, on

6 September 2000, he was convicted of causing injury recklessly, unlawful assault and assaulting a police officer in the execution of his duty.

8. At the time of the commission of the offences, with which we are here concerned, the applicant was on bail for another offence of unlawful assault and the possession of a drug of dependence. He was subsequently convicted in the County Court, on 4 November 2002, for those matters.

11. After hearing a plea in mitigation of penalty, in the course of which the applicant gave evidence, on 28 November 2003, the learned sentencing judge imposed the following terms of imprisonment:

His Honour directed that 12 months of each of the sentences imposed on counts 2, 5 and 9, and the whole of that imposed on count 4, be served cumulatively upon each other and the sentence imposed on count 1. This created a total effective sentence of imprisonment of five years and six months, in respect of which he fixed a period of four years before which the applicant would become eligible for parole. The sentencing judge also directed that it be noted in the records of the Court that the applicant had been sentenced on count 2 as a serious violent offender.

19. The applicant now seeks leave to appeal against the sentence imposed upon him on the grounds:

"1. That it is manifestly excessive in the circumstances; 2. That the sentence imposed on the applicant reflects manifest and unjustifiable disparity from those imposed on the co-offenders, Alan Gajic and Trent O'Sullivan."

23. The following summary has been prepared from the opening of the prosecutor in the court below and his Honour's sentencing remarks.

27. In April 2002 the co-offender, Alan Gajic ("Gajic"), to whom reference is made in ground 2 and who was aged 18 years at that stage, came upon a young woman named Laura Osmond in the company of another young male, Cameron Haywood, aged 16 years, at the Sandringham railway station. Gajic, who was in a relationship with Osmond at that time, became angry and confronted him. An altercation ensued in the course of which he threatened Haywood and then left.

30. On 18 May 2002, Gajic contacted Haywood, by mobile telephone, and inquired as to his whereabouts. Haywood said that he was at Southland shopping centre. Gajic, referring to the earlier incident, indicated to him that they had "business to finish". After this conversation concluded, Haywood went with friends to watch a movie at the centre. During the screening, Gajic rang his mobile telephone 16 times and sent him an SMS message. The co-offender, Trent O'Sullivan, also telephoned Haywood eight times.

33. Haywood answered one of those calls and falsely told Gajic that he was at home. Gajic then went to Haywood's family home and rang him again from outside demanding that he come to the front of the premises. Haywood responded that he would be out in 15 minutes, to which Gajic replied, "Come out now or I'm coming in." When Haywood failed to appear, Gajic and O'Sullivan knocked on the front door and were greeted by Haywood's mother who informed them that her son was at the movies. The two young men then left. Once the movie had finished, Haywood telephoned a group of his friends and requested that they attend Southland in order to protect him as he feared that he would be assaulted by Gajic, O'Sullivan and their friends. A number of young people, male and female, responded to this request, and joined him.

36. At approximately 10.30 p.m., Haywood's father contacted Haywood by telephone and advised him that there were people looking for him. Haywood then went home. At 11.48 p.m., Haywood received an SMS message from Gajic. Haywood then forwarded this message to another friend, Tristan Congreve, with the additional message that he could not go to the Cheltenham railway station to join them. It seems quite evident from the history of the matter that Haywood had absolutely no intention of finding himself in a physical confrontation with anyone. He then switched his telephone to silent mode and went to bed. A large group of Haywood's teenage friends then assembled and went to the railway station. One of the members of the group had contacted Gajic by mobile telephone and asked if he would meet them. Trent O'Sullivan, to whom I have referred, and who was the other co-offender referred to in ground 2, contacted a man named Darren Ellis who was the house mate of the applicant and offered Ellis $100 to be involved in the anticipated fight. Ellis refused the offer and passed the phone to the applicant, who then spoke to O'Sullivan. The applicant then informed Ellis that he was going to help out a friend and then left the house.

39. At about 12.20 a.m. The applicant, Gajic, O'Sullivan and Gajic's father ("Gajic senior") went to the Cheltenham railway station in a station wagon driven by the applicant. They parked the vehicle some distance from the station and obtained a number of items from the boot. They then proceeded to the railway station. By this stage, the applicant was armed with a .22 calibre bolt-action rifle with a sawn-off barrel that contained live rounds, one of which was in the breech. O'Sullivan was armed with a metal pole and Gajic senior had a screwdriver or similarly shaped object. I should add, however, that it appears evident that the applicant did not take the rifle in his possession to the scene and the sentencing judge accepted that he picked it up in order to ensure that it was not in the possession of O'Sullivan who, he feared, might act foolishly with it. The four men then walked through the station entrance towards Platform 3. Present on the platform, at that time, was a group of approximately 15 waiting teenagers. The group was apparently composed of males and females aged at around 15 to 16 years. Also at the station, but in a different area, were three plain-clothed police members from the Transit Uniform Section.

42. As the four co-offenders approached the group of young people, O'Sullivan pushed one of them, Brett Fraser, to the ground and into a group of bushes, inquiring as he did so, "You want to die?" He also asked Fraser where Haywood was. At the same time Gajic senior challenged a group of youths who were nearby with a question, "You want to fuck with us?" In reference to the demeanour of the four offenders, witnesses indicated that they appeared to be very angry. Gajic senior then approached a person named Rigo Gasio, a member of the group and the victim referred to in count 2, and said, "Was I talking to you, black cunt?" He then pushed another member of the group, Andrew Kozlowski. Gajic senior then joined O'Sullivan as they pushed their way through the group of teenagers and exited the station.

45. In the meantime, the applicant approached Tristan Congreve and said, "What are you looking at?" and punched him to the jaw. Congreve said, "I'm not Cam" referring to Cameron Haywood. The applicant then pointed the rifle at a witness named Sullivan who stated:

"His finger was on the trigger. I was very scared by now. I thought he was going to pull the trigger and kill me. The look he gave me was evil."

As the applicant was pointing the rifle at Sullivan, the train pulled into the station. People disembarking saw the weapon and fled. The applicant then pointed the rifle towards Gasio's head saying, "Do you want to die, cunt?" Gasio in his statement subsequently said:

"I froze. I couldn't move. I was really scared he would shoot. All I could think of was my head exploding."

Kozlowski recalls the applicant saying, "You guys rang us and you're gonna get fucked for this." The applicant then pointed the rifle at another of the group and proceeded to wave it in the general area around a man named Nicholas Konstantinides. Konstantinides in his statement said:

"I quickly moved behind a telephone post because I was getting worried he might actually shoot me. I was scared because I could see that his finger was on the trigger and he was ready if he wanted to shoot."

At one point the applicant pointed the rifle at another young person saying, "Get out of my way." Two of the teenagers from the group approached the police members who were, it seems, in the station foyer, and informed them that there was a man with a gun outside. The two members, Senior Constable Perrett and Constable Wilson, then approached the applicant. They drew their firearms which they pointed at him with the command, "Police. Don't move." He then turned towards them, directing his firearm at them. They continued to demand that he put his weapon down, shouting, "Drop the gun. Put it down." He lowered it momentarily and raised it again towards them. He then turned and attempted to run away, throwing the firearm over the platform fence and disposing of other items in his possession. Perrett then kicked the applicant's legs from underneath him and he was sprayed with capsicum spray. The applicant continued to resist, saying, "That shit doesn't affect me." He was eventually handcuffed and restrained. One of the police members, stated at the time of the incident:

"I was in fear of my safety and that of Senior Constable Perrett and of all the people standing around the Cheltenham railway station, as I believed [the applicant] was going to shoot either us or the people."

55. Whilst the applicant was being restrained, Gajic senior, Gajic and O'Sullivan ran down the opposite ramp away from the station. When they were about half-way down the ramp Gajic senior stopped and turned to face the group of youths, producing the screwdriver which he waved in a threatening manner. He then ran from the scene with Gajic and O'Sullivan. When questioned by the police at the railway station, the applicant identified one of his co-offenders as Trent and indicated that he had been recruited to "come here to scare some kids."

58. The applicant was at the time a prohibited person pursuant to s.3 of the Firearms Act 1996 and, accordingly, his possession of a firearm was unlawful.

61. I now turn to the circumstances relating to the commission by him of the offence in Count 9.

64. On 27 July 2002, the applicant made a telephone call from Port Phillip Prison to Ellis. In the course of this conversation he discussed parts of Ellis' deposition. As to the part in which Ellis made a reference to having been offered $100 to go down and help Trent, the applicant said:

"Well, you've got to recant that, mate. Just say that you've made a mistake and that Trent said that he's got that $100 he owes me. Will you go to Court and say that for us? And make sure you tell them when I fuckin' left your joint I was going to pick up, well, pick up $100, and I had no gun on me."

Ellis stated that he was very nervous when he attended the committal hearing about what he was going to say. This was supported by observations of him.

69. Gajic was convicted, after trial, on a count of affray. He was acquitted of the counts relating to the making of threats to kill. O'Sullivan pleaded guilty to the commission of the offence of affray, at the door of the court, it seems. Gajic senior was acquitted of charges relating to his involvement in the events of that night.

72. I will address the grounds of this application in the order set out in the outline of submissions which has been provided to us.

76. In support of the contention that the sentence imposed upon the applicant reflects manifest and unjustifiable disparity from those imposed on his two co-offenders, Gajic and O'Sullivan, it was said by Ms Dixon that it was difficult to understand why they were presented on a very limited basis in distinction to the applicant. This difference of itself, she argued, can be seen to give rise to the development of an understandable and legitimate sense of grievance, viewed from his perspective, and that of the reasonable independent observer. The applicant, she continued, accepted responsibility for his part in the activities of that night at quite an early stage and, in consequence, he was sentenced approximately 12 months before his co-offenders, who were able to take advantage of the intervening period in a number of different ways. These included a capacity to adapt their respective versions of events and to use this period to demonstrate evidence of their rehabilitation. The courts have on many occasions, she pointed out, expressed the view that it is in the interests of justice to ensure that adequate incentives are provided to offenders who offer an early plea of guilty. However, in this case, rather than being advantaged by doing so, the applicant appears to have suffered detriment, she argued.

79. It was acknowledged that, by reference to the number of counts on which her client was presented, his situation could be seen to be different from that of his co-offenders, arguably the principle of parity, strictly viewed, was not applicable, however, she submitted that regard should be had to the underlying notion of fairness on which that principle rests. In this case, the sequence in which matters came before the courts, the substantial period of time that elapsed before the co-offenders were sentenced, and the decisions made by the prosecution as to the counts on which they were to be presented combine to create a situation in which the applicant could be seen to have been treated with comparative and unjustifiable disparity, the argument proceeded.

82. In my view, there are cases in which, although the principle of parity as it has been developed in the various authorities is not applicable, there is nevertheless a question as to whether a particular individual has been dealt with in an unduly severe fashion in comparison with other persons who were involved in some way or other in the same criminal enterprise.

85. However, the resolution of this question is not dependant upon the application of the parity principle as it has been recognised, but upon the consideration of the appropriateness of the sentence handed down, in the particular offender's case, when regard is had to the fact that a different approach appears to have been adopted in the cases of other persons. It is on this basis that the argument, for what might be very loosely called parity, has been considered by me.

88. In applying that general approach and concept of fairness of treatment to the present matter, there are a number of reasons for distinguishing between the situation of the applicant and his co-offenders. They include the fact that the applicant was sentenced for a number of separate offences whereas each of his co-offenders was sentenced only for affray. Of particular significance in this regard is the fact that only he faced the Court to be sentenced for the making of threats to kill and it was he who was in possession and used the firearm on the night with which we are concerned. It is also to be borne in mind that the applicant was significantly older than his co-offenders. With the notable exception of Gajic senior, who was acquitted, everyone else involved in the confrontation was quite young. Gajic was only 18 years of age and O'Sullivan was 21 years. Each fell to be sentenced as a young offender. The applicant, on the other hand, was 31 years of age and was presumably somewhat more mature than they were.

91. A distinction can also be drawn when one has regard to the actual role played by the applicant, at the railway station, in the commission of these various offences. Although it was true, as Ms Dixon emphasised in the course of her submissions, that he did not initiate the confrontation and indeed had been recruited apparently to assist a friend, it is clear that his role at the station was significantly greater than that of any of his companions.

94. Regard must also be had to the applicant's criminal history. Whilst O'Sullivan had appeared before the courts, in this context, on a number of occasions, as I have pointed out, he was still a very young person and Gajic had no relevant prior criminal history at all. The applicant was, of course, on bail and awaiting a hearing in relation to an offence of violence at the very time that he committed the offences with which we are here concerned. It is further not without significance that the serious violent offender provisions of the Crimes Act 1958 applied to the applicant and not to his co-offenders.

97. There were a significant number of features of aggravation to which the learned sentencing judge specifically adverted in the case of the applicant, some of which were present in those of his co-offenders. He listed them as follows:

"(1) Your offending is serious and you were prepared to use a loaded firearm in a crowded area and cause anxiety, fear and substantial disruption in a public place;

(2) You were prepared to use a loaded firearm to threaten persons whilst under the influence of a drug which often has a side effect of violence, sometimes extreme violence;

(3) You, of all people were well aware of the effect of amphetamine and, indeed, having injected O'Sullivan with amphetamine and seen the consequent behaviour, you determined to take the gun when you left the car because you thought he might kill someone and that you might be facing a murder charge;

(4) The confrontation by you and the co-accused was planned and designed to have maximum impact;

(5) When confronted by police you used the firearm to prevent your lawful apprehension;

(6) At various stages witnesses describe how you had your finger on the trigger of a gun which you knew to be loaded;

(7) You were prepared to, whilst in custody, do an act which had a tendency to pervert the course of justice in order to face responsibility for your criminal offending; and

(8) This type of offending affects areas where the public attend and they are entitled to go about their normal business without being confronted by such criminal conduct."[1]

108. Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned.

111. Of itself, the fact that such differences can be observed in the sentencing remarks and dispositions imposed, does not justify the intervention of this Court in the sentencing process or provide an adequate foundation for a finding that there has been an unjustifiable disparity in the treatment of the separate offenders but it does, of course, create considerable difficulty in any case such as the present. It is not possible, nor indeed would it be appropriate, for this Court, to speculate upon the basis of the jury acquittal of Gajic senior or as to the basis of the acquittal of Gajic on the charges of making threats to kill. Nor can we draw inferences of disparity of treatment from the prosecution's decision to charge the co-offender O'Sullivan with one offence in the circumstances. What we are left with are the factual circumstances upon which the applicant himself was sentenced and the distinctions to which I have referred. As I have indicated, they would clearly justify differences in treatment in his case.

114. In summary, I am unpersuaded that the ground of disparity of treatment, even viewed in the broad sense urged by counsel, has been established.

121. In support of the contention that the sentences imposed upon the applicant were manifestly excessive in the circumstances, reliance has been placed upon the arguments that the orders for cumulation, made in respect of counts 1 and 2, produced a sentence which is manifestly excessive, in the sense of being disproportionate to the conduct in which the applicant engaged, when regard is had to the fact that he was brought into a situation that was created by others. There has been no victim impact statements made by any of the victims. This suggests, it was claimed, that his conduct on that night has produced no on-going effects;

* the persons who were victims of counts 1 to 3 had attended at the station on that night in significant numbers for the precise purpose of engaging in a fight;

* the applicant did not bring the weapon that he used to the station; and

* the threats to kill made by him arose out of and could be seen to constitute aspects of the affray in which he had become involved.

127. It was further contended that the sentence imposed on count 5 was excessive in the particular circumstances where the applicant's reaction to the presence of plain-clothed transit police was influenced by confusion as to their identity. It was asserted in support of this claim that he was clearly startled and did not react instantly to the demand made to put down his weapon. However, he did so virtually as soon as he was able to make a sensible assessment of the situation and identify the person who had made the demand.

130. With respect to the sentence on count 9, that is the count relating to the attempt to pervert the course of justice, it was submitted that it had to be taken into account that this offence was constituted by the making of a telephone request, not

accompanied by any threat, offer of payment or inducement. It simply involved, counsel submitted, a communication with a friend with whose unreliability as a historian the applicant was justifiably concerned.

134. Finally, it was argued that the applicant's decision to plead guilty deserved full weight and, reverting to the matter earlier discussed, Ms Dixon, submitted that he demonstrated a frank acceptance of responsibility for his part in the events of that night; he accepted that responsibility at a very early point of time but he clearly did not appear to have received any advantage whatever from doing so.

137. Whilst I acknowledge that the applicant may have a sense of grievance in that he was the only person who was incarcerated for the behaviours on that particular occasion, I draw attention to the matters of aggravation addressed by the learned sentencing judge.

140. In my view, there is nothing in his Honour's sentencing remarks which would indicate that he failed to take due account of any relevant sentencing circumstance or principle. I am unable to detect any error of omission or commission by him. The sentences which were handed down are individually, in my view, well within the range available to his Honour and I do not consider that the orders for cumulation could be seen to have created a sentence which was manifestly excessive in the circumstances.

143. Accordingly, I would dismiss this application.

147. I am in agreement with the reasons for judgment of the learned presiding judge and with the disposition of the appeal that he proposes.

151. This was a joint enterprise. Despite that, separate trials of each accused were ordered. This Court has not had the benefit of perusing the reasons for that order.

Presumably, there were good reasons for it. There would need to have been because, as experience and the authorities demonstrate, incongruous and, indeed, unjust results can follow from trials of accused concerning joint enterprises being heard separately. In that regard, I agree wholly with the observations of the learned presiding judge. I also, with respect, agree with his other reasons and the conclusion he has reached. I, too, would dismiss the application.

156. The order of the Court is that this application stands dismissed.