R v Rule [2008] VSCA 154

2 The appellant was sentenced to a term of four years and six months' imprisonment on count one, and five years' imprisonment on count two. The sentencing judge ordered that twelve months of the sentence imposed on count one be cumulative upon the sentence imposed on count two. That made a total effective sentence of six years' imprisonment. Her Honour ordered that he serve a minimum term of three years and six months before being eligible for parole. He now appeals against that sentence.

3 The circumstances surrounding these two offences were as follows. In relation to count one, the appellant, together with one Travis Rackley and Bianca Fraser, drove to the Stocklands Shopping Centre in Wendouree. The appellant was the driver of the vehicle, which was owned by Rackley.

4 Their aim was to purchase heroin. Fraser attempted to obtain cash from an automatic teller machine but was unsuccessful. On her return to the car, the appellant drove the three of them to street in the vicinity of an Ampol service station. He drew blood from his arm into a syringe which he then gave to Fraser. According to the depositions, the appellant and Rackley instructed Fraser how to carry out the robbery. In accordance with those instructions, she entered the service station, produced the syringe, and threatened the female attendant with it. Fraser then went behind the counter, took approximately $300 from the till, and ran back to the car. The appellant told Fraser to turn over the money to him, which she did. He then rang his drug dealer in Melbourne. The group then drove back to Melbourne, where the appellant bought heroin using the proceeds of the armed robbery and some money of his own.

5 The second count arose out of an incident that occurred two days later at the Midvale Shopping Centre in Mount Clear. The appellant, together with his co-offenders, Spiteri and Jenkins, drove to the shopping centre. Spiteri entered the UFS Dispensary and threatened Ms Artz with a knife. She went behind the counter and removed a quantity of morphine from the dangerous drugs safe. She then ran from the store. Shortly thereafter, the three offenders were arrested.

6 When interviewed about these matters later that day, the appellant chose to remain silent.

7 With regard to count one, Rackley was sentenced to three years' imprisonment. He had a number of prior convictions, mainly for driving offences, but his record was not nearly as bad as that of the appellant. Fraser was sentenced to 18 months' detention in a youth training centre for this offence and a similar armed robbery. However, it must be borne in mind that she was aged only 17 at the time of the commission of those offences.

8 In relation to count two, Spiteri was only just 18 years of age when she committed that offence. She was sentenced to be detained in a youth training centre for a term of 12 months. She made full admissions when interviewed by the police, pleaded guilty at the earliest opportunity, and gave evidence at the trial of her co-offender, Jenkins. She was also understood to have a borderline low IQ.

9 It appears that the appellant was always prepared to plead guilty to count one, but seemed ready to contest count two. The Court was told, however, that after some negotiation, an agreement was reached with the Crown, and he eventually pleaded guilty to count two as well.

10 The appellant has a long record of prior offending consisting of 189 convictions from 21 court appearances. Many of these convictions relate to driving offences. However, there are also a large number of convictions for dishonesty, and some for violence. There is nothing on the scale of the offences that are the subject of this appeal.

11 Not surprisingly, the appellant has been imprisoned many times. He has often committed offences when released on parole.

12 Pursuant to leave granted by Buchanan JA, the appellant relies principally upon three grounds of appeal. He complains first that the sentencing judge erred by having regard to what Spiteri said, both on her plea and during Jenkins' trial, when determining what role the appellant had played in the commission of these offences. He submits next that her Honour ought to have made orders for total, rather than partial, concurrency. Finally, he argues that the sentences that he received are manifestly disparate to those imposed upon his co-accused.

13 Two other grounds in the notice of appeal were either abandoned or not pressed.

14 With regard to the first of the grounds argued, it should be noted that the sentencing judge gave detailed reasons for imposing the sentences that she did. Her Honour summarised the circumstances of each of the two offences to which the appellant pleaded guilty. She noted that these circumstances were set out in the deposition material, and that she had also drawn upon the Crown summary.

15 In relation to count one, her Honour found that the appellant had played a leading role in instigating its commission. She referred to the fact that the appellant and Rackley had given Fraser instructions as to how to go about committing the robbery in question. She also referred to the fact that the appellant took the proceeds of the robbery from Fraser immediately after she returned to the car.

16 In relation to count two, her Honour referred to Spiteri's statement to the police in which she outlined her own involvement in the robbery, and implicated her co-offenders. She noted that the evidence which Spiteri gave at Jenkins' trial (over which her Honour had presided) was entirely consistent with what she had earlier told the police.

17 After summarising the personal circumstances of the appellant, and referring to various matters of mitigation, her Honour said:

A particularly disturbing feature of both armed robberies is that you manipulated a female accomplice in each case to personally confront your victims and carry out your instructions to effect the armed robbery. There is no question that in the end they were each compliant to this task. However, in both cases I am satisfied beyond reasonable doubt, on the basis of statements made to police and the sworn evidence of Spiteri in the case of Count 2, that you were the instigator, mastermind and principle [sic] beneficiary of each offence.

18 Her Honour returned to this theme when she observed, in relation to specific deterrence:

You enticed a female in each case to participate in an armed robbery and play an upfront role. You tutored each female in the way they should behave and best effect the robbery.

19 These two passages formed the basis of the first ground of appeal that was pressed in this Court. Counsel, who appeared on the appeal, submitted that her Honour had not been entitled to have regard to anything Spiteri had told the police, or her evidence at Jenkins' trial, when considering the role played by the appellant in relation to count two. Alternatively, he submitted that even if that contention were rejected, her Honour was certainly not justified in using anything said by Spiteri when making findings regarding the appellant's role in relation to count one.

20 In considering these submissions, it is necessary to have regard to the manner in which the appellant's involvement in these offences was addressed on the plea. The Crown relied upon a summary of the facts in relation to each count. The facts set out in that summary were ultimately accepted by her Honour, and adopted by her as correct in her reasons for sentence. The summary referred specifically to Spiteri's statement to the police, in which she identified the appellant as the instigator of the robbery, the subject of count two, and claimed that both she and Jenkins had been reluctant participants.

21 During the course of the plea, counsel, who then appeared on behalf of the appellant, said very little about the role his client had played in the commission of these two offences. Importantly, he did not challenge the Crown's summary of the appellant's involvement in the first robbery.

22 In relation to the second robbery, counsel said only the following:

Now in any of these matters, your Honour, there's often a difference in degrees in terms of the involvement and role that various parties play. Your Honour has a statement from a co-accused in this matter and I'd urge your Honour to be cautious in adopting everything that is stated in that particular statement. Because of course Your Honour's well aware that in these types of offences involving co-offenders, one offender attempts to minimise their involvement and emphasise the involvement of the co-accused.

23 Counsel then observed that he had 'tempered' his submissions regarding this matter because it had proceeded as a plea. He submitted that it would not have been appropriate to run a contested hearing aimed solely at seeking to reduce the level of his client's involvement. He told her Honour that he did not propose to lead any evidence to controvert Spiteri's account, and added that he would not take the matter any further.

24 Her Honour was not content with that state of affairs. She drew attention to the fact that Spiteri had done more than merely make a statement to the police. She had also given sworn evidence during the course of Jenkins' trial. Counsel, who was by then plainly on notice that her Honour was minded to accept Spiteri's account, replied that he stood by his earlier submission, and had nothing to add. He acknowledged that her Honour was in a position to give Spiteri's evidence such weight as it merited.

25 It is difficult, in these circumstances, to see how her Honour can be criticised in any way for acting upon Spiteri's account of the appellant's role in relation to count two. Her finding that he was the instigator, mastermind and principal beneficiary of that count was amply supported by Spiteri's statement, and by the evidence she gave in Jenkins' trial. If it matters, that finding was also supported by various objective indicia, including the ages of the respective parties, and their previous criminal records. It is also not without significance that the appellant was involved in a very similar offence just two days earlier.

26 Counsel's alternative submission that her Honour had allowed Spiteri's evidence to 'spill over' into the findings that she made in relation to count one may be thought, at first blush, to have greater force. Ultimately, however, we are not persuaded that her Honour's finding that the appellant had instigated the first count was not reasonably open, or that it should not have been made.

27 The depositions in relation to the first count, none of which were challenged, made it plain that the appellant and Rackley had jointly instructed Fraser as to how to go about committing the robbery in question. As previously indicated, Fraser, although she had prior convictions, was aged only 17 at the time of this offence. The appellant took the proceeds of the robbery from her as soon as she returned to the car. It was an entirely reasonable inference, in these circumstances, that the appellant had indeed manipulated Fraser, and that he had instigated the commission of the offence.

28 It follows, in our view, that there is no substance in the first ground of appeal.

29 The second ground of appeal as drafted complains that 'the sentences imposed offend the principle of totality'. However, the argument that was presented to this Court took a somewhat different line. Under cover of this ground, it was submitted that her Honour had erred in having ordered partial rather than total concurrency.

30 In order to properly understand this submission, it is necessary to set out something of the procedural history of this matter. The matter came before her Honour on 27 November 2006, the date on which the appellant was arraigned and pleaded guilty. On that day, counsel, who then appeared for the appellant, asked that the matter be stood over to the following year. As previously indicated, this Court was told that the plea had been the subject of some negotiation. The transcript supports that conclusion. The appellant's counsel was anxious to ensure that the transcript recorded the agreement that he had reached with the prosecutor. Counsel stated:

... Your Honour I understand the Crown's position is that total concurrency is appropriate because these offences occurred in such a short time frame and of such a similar disposition and it's effectively a course of conduct. That's a matter that I'll address Your Honour about in the fullness of time. (Emphasis added.)

31 The prosecutor agreed that the matter should be stood over to the following year. Importantly, he added:

... I don't take issue with what my learned friend says about the issue of concurrency, Your Honour, it's certainly a view that I formed when preparing this matter that as far as Mr Rule was concerned this was a continuing course of conduct over a few days. The two counts to which he has pleaded guilty occurred on 28 May and then 30 May and they have clearly occurred in an environment of continued drug taking and taking steps to obtain drugs or obtain funds for drugs, so that position that my learned friend urges is not something that the Crown would seek to contradict, but of course ultimately it's a matter for Your Honour. (Emphasis added.)

32 On 6 March 2007, the matter again came before her Honour. On that occasion, the appellant was represented by different counsel, as was the Crown. The matter could not proceed on that day. No mention was made of the agreement earlier reached that there should be total concurrency with regard to the two counts.

33 On 21 March 2007, the matter was again mentioned. It was adjourned yet again.

34 On 4 June 2007, the plea proper was finally heard. This was more than six months after the arraignment. On this occasion, the appellant was represented by counsel who had appeared for him on 6 March 2007, but not on his arraignment in November 2006. The Crown too was represented by different counsel.

35 The plea took the usual form. The prosecutor opened the facts in relation to each count. He tendered two victim impact statements. He explained something of the appellant's history, including a reference to the amount of time that was still owing as a result of various breaches of parole.

36 Counsel for the appellant then tendered a psychiatric report and raised various matters of mitigation. He referred to the principle of totality, and urged her Honour not to impose a crushing sentence.

Finally, Your Honour, of significance, the Crown concedes that this is a matter where concurrency is appropriate. That it's appropriate to view this matter as a continuing course of conduct, albeit over a two day period. And I understand that this was confirmed before Your Honour on the transcript when Mr Rule was arraigned. My friend is agreeing with me, it's at p 34, Your Honour, of the transcript. (Emphasis added.)

38 The prosecutor subsequently addressed this same issue. He stated:

The Crown does not seek to submit, Your Honour, that accumulation should take effect. That is inconsistent with the concession made by my predecessor at the arraignment in this matter where he indicated, Your Honour, that the defence submission in relation to concurrency is appropriate in the circumstances of this case. (Emphasis added.)

39 There can be no doubt that the Crown's position, as stated at arraignment and during the course of the plea, was that there should be total concurrency between the two counts. Notwithstanding that concession, her Honour determined that there should be partial concurrency only. In her sentencing remarks, she said:

Your counsel submitted that the two offences, although committed 2 days apart, should be treated as part of the same criminal enterprise and accordingly warrant total or substantial concurrency. Your Counsel acknowledged that an immediate custodial sentence was clearly warranted in the circumstances but sought to impress upon the Court the period of immediate custody which you are currently serving and that the principle of totality should serve to avoid a sentence which will be crushing in the circumstances. The Crown prosecutor did not make any submissions to the contrary. (Emphasis added.)

40 After fixing individual sentences on each of counts one and two, her Honour proceeded:

I have considered whether these two offences should be properly treated as one criminal enterprise. They were committed two days apart: one upon a service station for money and one upon a chemist shop for drugs. Both involved different co-offenders and involved a frightening armed confrontation upon victims. While the offences were an ongoing manifestation of your drug fuelled offending, it is appropriate to recognise these two separate offences by an order for some partial cumulation.

41 Her Honour then ordered that twelve months of the sentence on count one be cumulative upon the sentence imposed on count two.

42 It was submitted before this Court that her Honour's reasons revealed serious error. She had misapprehended both the appellant's submission, and the Crown's concession, when she recorded, in her reasons for sentence, that what was sought was either 'total or substantial concurrency'. The only submission that had been advanced, and agreed to by the Crown, was that there should be total concurrency.

43 It was further submitted that the plea had been conducted throughout upon the footing that the Crown's position was unequivocally that there should be total concurrency. There had been no intimation whatsoever that her Honour might not act upon that concession. Had there been the slightest indication that she had in mind such a course, argument could have been advanced in an attempt to dissuade her from doing so. Counsel submitted that there had, in effect, been a denial of procedural fairness.

44 The Crown replied by submitting that it had been entirely open to her Honour to disregard its concession made at arraignment, particularly since counsel who then appeared had made it plain that whether total concurrency should be ordered was ultimately a matter for the sentencing judge.

45 Counsel for the appellant responded by submitting that the qualification attached to the concession was nothing more than a truism. It did not detract from the full weight of the concession, nor from her Honour's duty to ensure that the appellant was accorded procedural fairness.

46 It is clear that the sentencing judge attributed to counsel who appeared on the plea a submission that he did not at any stage advance. The same is true of her Honour's understanding of the Crown's concession. It is not to the point that, ultimately, the question of concurrency was one to be determined by her Honour in the exercise of her sentencing discretion, and that she was not bound by any 'deal' between the parties.[1] The requirements of procedural fairness still had to be met.[2]

47 As the authorities stand, provided that the Crown concession that there ought to be total concurrency in this case fell within proper principles of sentencing, her Honour would ordinarily be expected to give weight to that concession. It would also be expected that if her Honour were not minded to accept the Crown's submission, she would flag that point and give counsel for the appellant, and counsel for the Crown, an opportunity to be heard in relation to it.

48 More specifically, had her Honour indicated during the plea that she had reservations about whether total concurrency was warranted because she did not regard these two offences as a 'single criminal enterprise', that proposition could have been addressed. Her Honour could have been reminded that it had never been submitted on behalf of the appellant, or on behalf of the Crown, that the offences should be viewed in that way. Rather, it had been put that although these were separate crimes, they were closely related in time, nature, and motivation.

49 Her Honour could also have been reminded that s 16(1) of the Sentencing Act 1991 establishes a prima facie rule in favour of concurrency in relation to this class of offender, leaving a discretion with the sentencing judge to otherwise order in appropriate circumstances. Any departure from the prima facie rule must, of course, recognise the importance of what the High Court has characterised as the 'totality principle'.[3]

50 It is, of course, true that the mere fact that a series of offences was committed for the same purpose, such as obtaining money for drugs, does not of itself justify total concurrency.[4] The ordinary principles as to cumulation require that the sentencing judge should, as far as is practicable, identify episodes or transactions giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation.[5]

51 On the other hand, the fact that offences are part of one continuing transaction is usually a good reason for ordering such concurrency. Where two or more offences are committed in the course of a single criminal enterprise, all sentences in respect of those offences are usually, though not always, made concurrent with each other.[6] Of course, it will not be appropriate to order total concurrency in the case of extensive and grave criminal conduct.[7]

52 In our view, the sentencing judge would have been entitled, as she did, to order partial, rather than total, concurrency in the particular circumstances of this case. However, it cannot be said that partial rather than total concurrency was the only sentencing option properly available. There was, as we have indicated, a strong element of continuity associated with these offences. In these circumstances, the Crown's concession assumed a particular significance that it might not have had in other cases.

53 In any event, this case does not turn upon the correctness or otherwise of her Honour's reasons for declining to act upon that concession. It turns rather upon her misapprehension of what had been submitted, and what had been conceded. A misapprehension of that significance is sufficient, in our view, to demonstrate sentencing error. Where that error has led to a denial of procedural fairness, the intervention of this Court is warranted.

54 We note for the sake of completeness that counsel for the appellant also relied upon a ground of appeal relating to parity. There is no substance in that ground. It is well established that an appellate court intervenes because of disparity between sentences imposed on co-offenders only where the difference between the two sentences is manifestly excessive. The disparity must be such as to engender a justifiable sense of grievance in the mind of the appellant.[8] Neither Fraser nor Spiteri can in any sensible way be compared with the appellant, either in terms of culpability or as a matter of criminal history. As for Rackley, it is true that he received only three years' imprisonment on count one, as compared with the four years and six months' imprisonment imposed upon the appellant in relation to that count. However, Rackley had a much less serious criminal record than the appellant and significantly better prospects of rehabilitation.

55 It was not submitted that there was any parity issue arising in relation to Jenkins.

56 We have concluded that there was sentencing error, and that her Honour's sentences must be set aside. It is necessary to consider what sentences should be substituted. In that regard, counsel for the appellant provided the Court with material which, he submitted, demonstrated that the appellant was now making a serious effort to rehabilitate himself. The material showed that the appellant had undertaken various studies, including drug education and relapse prevention programs. The Court received this material without objection, but on the understanding that it would be used only if the appeal against sentence were allowed, and Court was to re-sentence the appellant.[9]

57 In our view, the sentences imposed by her Honour on the individual counts were not only reasonable but entirely appropriate. We would deal with the sentencing error identified by imposing the same sentences as those originally given but making a different order as to concurrency. The appellant should be sentenced to be imprisoned as follows:

58 These sentences are to be served concurrently. The total effective sentence is therefore five years' imprisonment.

59 The sentencing judge considered that the appellant's prospects of rehabilitation were such as to warrant a shorter non-parole period than would normally be fixed on an effective sentence of six years. She fixed a non-parole period of three years and six months.

60 There is some evidence to suggest that the appellant is now seeking to overcome his difficulties with drugs, and is not without some hope of doing so. Nonetheless, he has a history of breaching parole, which makes his prospects of rehabilitation problematic. In these circumstances, we would fix a non-parole period of three years.

61 We have given consideration to whether by reason of the introduction of s 6AAA into the Sentencing Act 1991 this Court is obliged to state the sentence and non-parole period which but for a plea of guilty would have been imposed. In R v Johnston [2008] VSCA 133, Nettle JA, with whom Buchanan and Ashley JJA agreed, observed that, by reason of the transitional provision in s 135, the amendments to that Act applied only to plea hearings commenced on or after 1 July 2008. Accordingly, as the plea hearing in this matter took place in 2007, s 6AAA has no application to the re-sentencing of the appellant.

62 Finally, we should note that in arriving at both the effective head sentence of five years, and the non-parole period of three years, we have had specific regard to the totality principle. In particular, we have taken into account the fact that the appellant will have had to serve an additional period of imprisonment as a result of his various breaches of parole. As we understand it, he did not begin serving the current sentences until 1 March 2008. It is therefore declared that a period of 178 days has been served and it is ordered that the fact that this declaration has been made and its details be entered in the records of the Court.

[1] See R v Williams [2008] VSCA 95, [6] (Osborn AJA) where his Honour cited with apparent approval the following remarks by the sentencing judge:

However it is ultimately for the court to determine what sentence is appropriate. The court is not bound, in any way, by the negotiations between counsel as to the appropriateness or otherwise of a sentence. That is clearly the role and function of the court. It is, however, extremely important that the court take heed of what has been agreed and if possible, within the proper principles of sentencing, to give effect to, or at the minimum to give considerable weight to such agreements.

[2] R v Healey [2008] VSCA 132.

[3] Mill v R (1988) 166 CLR 59, 62-3.

[4] DPP v Grabovac [1998] 1 VR 664, 676.

[5] Ibid. This is to avoid the appearance that an offender may commit a series of crimes after the first with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently.

[6] R v Koushappis (1988) 34 A Crim R 419, 422. Cf R v Smith (1990) 50 A Crim R 434; R v Stanbrook [1994] VicRp 26; [1994] 1 VR 391 and R v O'Rourke [1997] 1 VR 246 at 253.

[7] R v Taylor (1992) 58 A Crim R 337.

[8] Lowe v R [1984] HCA 46; (1984) 154 CLR 606, 610, 613; R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 403.

[9] R v Rostom [1996] VicRp 60; [1996] 2 VR 97; R v Babic [1998] 2 VR 79; R v Healey [2008] VSCA 132.