R v Watts, Black & Black [2007] VSCA 81

"Your Honour. I was just checking with my client. He said in fact his parole had been completed at that stage. He said that he actually spent six years prior to his release and said that his parole officer had told him that it had been completed at that stage."

16 Accordingly, the judge was informed that the Watts believed that the offences did not take place in breach of parole.

17 The judge then said to counsel for Watts:

"Your client would no doubt be aware (that) the Sentencing Act provides that any sentence imposed for an offence committed whilst a parole order is current should be served cumulatively upon any sentence that that prisoner has to serve in respect to that particular parole. That is an administrative matter. I will in the course of my sentence order that the sentences I impose upon him be cumulative upon any period that he may have to serve in respect to any unexpired parole. But of course that order would be redundant if in fact his parole is completed."

18 In handing down sentence, his Honour, as stated above, ordered that the sentence imposed be served cumulatively upon any period of imprisonment that Watts may be required to serve in custody on cancellation of any parole order. He then said:

"I interpose, Mr Watts; that will depend upon whether you were undergoing a parole order at the time of the commission of these offences."

19 In the course of the hearing of this application for leave to appeal, the Court was informed that the Adult Parole Board cancelled the applicant's parole on 7 December 2005 by reason of his having been convicted and sentenced by Judge Morgan-Payler on 15 March 2005. Accordingly, it is now clear that the offences with which Judge Morgan-Payler was concerned were committed by Watts whilst he was on parole, but at the time of the imposition of the sentence upon Watts, the Adult Parole Board had taken no action with respect to his breach of parole.

20 Furthermore and since the hearing of this application for leave to appeal, DPP v Piacentino[1] has been decided. Piacentino is authority for the proposition that where an offender falls to be sentenced for offences at a time when the offender has not had his or her parole revoked by the Parole Board, the sentencing judge may not have regard to the possibility that the Parole Board may later revoke the parole and require the offender to serve some or all of the balance of the parole. By supplementary written submissions delivered to the Court on 17 April 2007, Mr Mandy of Counsel concedes that the ground of appeal under consideration had been "laid to rest by DPP v Piacentino". As stated above, however, it is conceded by the prosecution that the calculation of pre-sentence detention should have been 90 days rather than the 80 days calculated by his Honour on the basis of representations made to him by both the prosecution and the defence.

21 The total sentence of two years imprisonment, with a minimum of 12 months non-parole imposed by the sentencing judge, was imposed in circumstances whereby his Honour explicitly took into account the fact that there was a period of pre-sentence detention which fell outside s 18(1) of the Sentencing Act. It is beyond argument that his Honour took into account that pre-sentence detention in accordance with R v Renzella.[2] In the course of his sentencing remarks he said:

"Each of you has been in custody in respect of other matters since 4 February 2004. On conviction of the present matter, each of your bail was revoked and accordingly the provisions of (s.18(1)) of the Sentencing Act applied from that date. As to the earlier period of almost 12 months, from 4 February 2004 until 29 January 2005, that you have spent in custody on the other matters, I propose taking that period into account in the exercise of my sentencing discretion."

22 Although his Honour stated that bail had been revoked upon conviction of each applicant of the offences before him, each of them was in fact remanded before him at the commencement of the trial on 17 January 2005. Accordingly, the period calculated by his Honour as pre-sentence detention which fell outside s 18(1) of the Sentencing Act was some 12 days longer than the actual period, which has now been calculated to be between 4 February 2004 to 17 January (i.e. 11 months and 13 days). Taking into account that period of 11 months and 13 days the effective head sentence of Watts could be said to have been 2 years 11 months and 13 days. Furthermore, it has now become apparent that subsequently, on 20 July 2005, the applicant was sentenced in relation to separate offences, which had been committed on 29 and 30 June 2003. On that date his Honour Judge Gebhardt treated 138 days as being time served previously in custody. It is apparent that those 138 days had already been taken into account in the Renzella calculation made by Judge Morgan-Payler on 15 April 2005. In all the circumstances, and in the exercise of my discretion I would not alter the declaration made previously.

23 In further written submissions supplied to the Court and dated 17 April 2007, Mr Holdenson, QC for the respondent, raised the issue of whether or not, the fact that subsequent to the date of sentence being handed down by Judge Morgan-Payler the cancellation by the Adult Parole Board of the applicant's parole can now be seen as either "fresh evidence" or as evidentiary material which must be taken into account to ensure that there has been no miscarriage of justice.[3] The effect of the cancellation of parole is that the sentence imposed by Judge Morgan-Payler is to be served cumulatively upon the period of one year 11 months and 29 days "owing" by reason of the applicant's breach of parole by the commission of these offences whilst on parole.

24 In all of the circumstances of this case, including the benefit the applicant has had by reason of the sentence of Judge Gebhardt, and, even if the later decision of the Adult Parole Board could be treated as "fresh evidence", about which matter I draw no conclusion, I see no basis upon which it can be said that the total sentence imposed by Judge Morgan-Payler combined with the sentence remaining to be served on parole offends the principle of totality. This is all the more so when one considers that Judge Morgan-Payler proceeded on the assumption that the offences with which he was dealing were not committed whilst the applicant was on parole. Had he been informed of the true facts he would have been entitled to treat that matter as an aggravating factor.

25 I would dismiss the application for leave to appeal.

The Appeal against sentence by Phillipp George Black

26 The grounds of appeal upon which the applicant Phillipp Black relies are as follows:

1. The sentences imposed are manifestly excessive.

2. The sentencing judge erred in setting too short a period between the maximum and minimum sentence.

3. The sentencing judge erred in failing to properly apply the principles of parity when comparing the sentences imposed on co-offenders.

4. The sentencing judge after making the finding that the co-offender Phillip Watts played a leading part in the offending and had a considerably greater prior history, erred in giving Phillipp George Black the same sentence as the co-offender Watts.

27 Dealing first with the ground that the sentence imposed upon Phillipp Black is manifestly excessive, his counsel argues that there were a number of significant mitigating factors which call for a sentence lower than that imposed. He submits that at the time of sentencing the applicant was 24 years of age, and although he had some prior convictions, he had not been previously sentenced to a term of imprisonment. It was submitted to the sentencing judge that incarceration had had a salutary effect upon the applicant and it would appear that the judge accepted this submission. It is argued that the applicant had a difficult and traumatic childhood, his parents being alcoholics who separated when he was aged 14 years. He had difficulties at school having completed Year 10 at Dimboola Secondary School at the age of 18. It was put before the judge that a close friend had died when the applicant was aged 19 years and shortly thereafter his grandmother, to whom he was close, died. He was aged 20 years, and it was said that her death caused him depression and exacerbated his addiction to drugs. He had medical problems having been infected with Hepatitis. It was argued before the sentencing judge that despite being found guilty of intentionally causing injury to one Bissett, the applicant had maintained a close friendship with Bissett. It was asserted on the plea that the applicant had ceased to use alcohol and drugs at the time of his trial and had the support of his parents, who were present throughout the trial. Furthermore, it was argued that the applicant had suffered the additional stress of facing a second trial through no fault of his own.[4] It was argued that in such circumstances the sentence of a term of imprisonment of 18 months with a minimum of 12 months failed to take into account the mitigating matters in question or to give sufficient weight to those mitigating factors.

28 Whilst it is true that there were some matters of mitigation, there was no evidence of any remorse by the applicant before the sentencing judge and no discount for any plea of guilty was applicable. There were aggravating factors in the commission of the offences being in particular the fact that the offending took place in the company of two others. As the sentencing judge observed it was clear from the evidence before him at the trial that the occupants of the house and in particular, the two young boys who were present in the house at the time of the incident were terrified by what took place. The judge observed that the applicant, in company with others, chose to offend in the manner that he did as a means of continuing a dispute. The applicant and the others knew that there was a woman and at least one child present in the house but chose to invade it for the purpose of inflicting violence. The judge stated that, the consideration of general and specific deterrence was important and he stated that it was appropriate that sentences that manifest the Court's denunciation of conduct involving the violent invasion of other people's homes be imposed. In my view these were important sentencing considerations in all the circumstances of this case.

29 In my view, in such circumstances the sentence of 12 months' imprisonment for the burglary cannot be said to be outside the range of appropriate sentences. Likewise the sentence of nine months' imprisonment on each of the offences of intentionally causing injury, in all the circumstances of this case, is well within the range of sentences open to the sentencing judge. The accumulation of three months of each such count upon other, and upon the count of burglary, likewise appears to me to be well within the range of sentencing options open to the sentencing judge as does the total effective sentence of 18 months' imprisonment.

30 The second ground upon which the applicant relies is that the sentencing judge was in error in not imposing a non-parole period lower than 12 months.[5] It is submitted on behalf of the applicant that he was a young man who had found imprisonment particularly difficult and that given his medical problems, a lengthy period on parole would have satisfied the sentencing requirement. Furthermore it is submitted that given the applicant's relatively young age, his lack of extensive prior convictions and his health problems, together with the fact that previously he had not spent time in custody, the trial judge should have imposed a sentence that allowed the applicant a greater opportunity of rehabilitating himself in the community.

31 In my view the non-parole period of 12 months in all the circumstances of this case cannot be said to be an erroneous disposition.

32 The third and fourth grounds upon which the applicant relies are that the sentencing judge erred in failing to apply the principles of parity properly, and in particular, erred in imposing the same minimum sentence as that imposed upon the co-offender Watts.

33 The arguments advanced on behalf of Phillipp Black in regard to parity concentrated particularly on the differences between him and Phillip Watts in both the parts played by both of them in the crimes and in the personal factors relevant to both of them. Reliance was placed upon the fact that Watts had played a leading role in the events in question, and that it was he who was found by the judge to have inflicted injury upon the victim Bissett. Furthermore, reliance was placed upon the fact that Watts was 35 years of age at the time of sentence and had 160 prior convictions. By comparison, Phillipp Black was aged 24 years at the time of sentence and had had far fewer prior convictions, some of which related to events in his late teenage years. The fact that Phillipp Black suffered from hepatitis C and that the sentencing judge regarded the time that he had already spent in prison as "salutary" are matters relied upon in arguing that greater parity should have applied as between him and Watts. It will be recalled that Watts was sentenced to 18 months' imprisonment on the count of burglary, whereas Phillipp Black was sentenced to 12 months. Watts was sentenced to 12 months on each count of intentionally causing injury, whereas Phillipp Black was sentenced to nine months on each count. After cumulation, Watts was sentenced to a total effective sentence of two years' imprisonment with a minimum of 12 months to be served before being eligible for parole. Phillipp Black was sentenced to a total effective sentence of 18 months' imprisonment with a minimum of 12 months to be served before being eligible for parole. There was thus clear disparity in terms of the head sentence which reflected the differing circumstances of the two offenders.

34 However, it is submitted on behalf of Phillipp Black that the fact that both he and Watts were directed to serve the same minimum period before being eligible for parole reflects a lack of parity.

35 On behalf of the respondent, Mr Holdenson contends that it is necessary to consider the pre-sentence detention which fell outside s 18 of the Sentencing Act 1991 and which was applicable to both Watts and Phillipp Black. As stated above, in sentencing each of the three applicants the judge stated that in addition to 75 days pre-sentence detention he was taking into account the earlier period of custody which he stated was "almost 12 months from 4 February 2004 until 29 January 2005". He stated specifically that he proposed taking that period into account in the exercise of his sentencing discretion. Clearly in doing so his Honour was relying upon R v Renzella.

36 It is now clear that the actual period of pre-sentence detention which fell outside s 18(1) of the Sentencing Act and which was to be taken into account in accordance with Renzella was the period between 4 February 2004 and 17 January 2005, a period of 12 days less than that calculated by the judge. The Renzella pre-sentence detention was a total period of 11 months and 13 days.

37 On the other hand, the prosecution concedes that the declaration of 75 days pre-sentence detention made under s 18(1) of the Sentencing Act should have been a declaration of 90 days.

38 Accordingly, taking into account the period of 11 months and 13 days the effect of the sentence imposed on the applicant Watts was that he was sentenced to a head sentence of 2 years 11 months and 13 days with a non-parole period of one year 11 months and 13 days, before allowance was made for s 18(1) Sentencing Act pre-sentence detention. The effect of the sentence imposed on Phillipp Black was that his head sentence became 2 years 6 months and 13 days with effectively the same non-parole period as that imposed on Watts of 1 year 11 months and 13 days.

39 Whilst it is true, as submitted by Mr Holdenson, that the effective head sentences imposed upon each of the applicants Watts and Phillipp Black reflects appropriate parity, the head sentence is but one component of the sentences. As stated in R v Postiglione[6] a proper comparison involves a consideration of all components, of which one "which is susceptible of easy comparison is the non-parole period".

40 It is arguable that the differences between the part played in the commission of the crime, the disparity in ages and the criminal background between Watts and Phillipp Black called for some disparity between the non-parole period. On the other hand the sentencing judge was clearly impressed by the steps taken by Watts in terms of rehabilitation. He found that Watts had good prospects of rehabilitation. Furthermore, he observed that Watts became involved in the criminal conduct partly by reasons of "misguided loyalty" to his two younger co-offenders. On the other hand, Phillipp Black had a recent conviction for intentionally causing injury for which he had been placed on a suspended sentence and which was still operative at the at the time of the commission of the offences. He made no positive finding as to prospects of rehabilitation save for "some optimism" in the event that Phillipp Black resolved firmly to make use of his time in custody and work at his rehabilitation upon release.

41 In the end result and taking into account those circumstances I am not convinced that the lack of disparity of the non-parole period fixed by the sentencing judge is manifest and would engender a justifiable sense of grievance or give the appearance to an objective observer that justice has not been done.[7]

42 Furthermore taking into account all the circumstances including the fact that the head sentence has now been served, no good purpose is to be served by variation of the declaration of pre-sentence detention pursuant to s18(1) of the Act made by the sentencing judge.

The application to appeal against sentence by Steven John Black

43 The grounds upon which Steven John Black relies are as follows:

1. The individual sentences and total effective sentence are manifestly excessive.

2. The sentencing judge erred in that he effectively sentenced the appellant to a term of imprisonment of 26 months by taking into account time served pursuant to Renzella's case and did not set a minimum non-parole period.

3. The sentencing judge erred by failing to set a non-parole period.

4. The trial judge should have established the number of days that the applicant had served pursuant to Renzella's case and did not.

5. The sentencing judge erred in that he gave insufficient weight to the applicant's youth, minimal prior criminal history, and prospects of rehabilitation.

6. The sentencing judge erred in that he failed to take into account the principles of parity when sentencing the applicant.

Grounds 1 and 5

44 In relation to grounds 1 and 5 counsel for the applicant submits that the applicant's sentence, when viewed in the context of the totality of his pre-sentence detention is manifestly excessive, particularly when regard is had to his youth, relatively few prior convictions and good prospects of rehabilitation.

45 This submission needs to be considered in the light of the argument relating to pre-sentence detention which is raised by Grounds 2, 3 and 4.

Grounds 2, 3 and 4

46 There was considerable discussion in the course of the plea relating to the applicant Steven Black's pre-sentence detention. Steven Black at the time of the plea was awaiting two further trials, those trials being heard subsequently by Judges Sexton and Duckett. It will be recalled His Honour Judge Morgan-Payler declared 75 days of s 18(1) of the Act, pre-sentence detention.

47 As stated above, the prosecution concedes that the s 18(1) pre-trial detention should have been 90 days. With respect to Renzella pre-trial detention the applicant Steven Black was arrested on 5 October 2003 in relation to matters which were heard subsequently by Judge Duckett, and he was released on bail on 10 December 2003. That period of detention was 66 days. Subsequently the applicant, along with the other two applicants, was re-arrested in relation to the matters which were dealt with subsequently by Judge Sexton and remained in custody until remanded before Judge Morgan-Payler on 17 January 2005. That period of detention was 11 months and 13 days.

48 It is clear that Judge Morgan-Payler was well aware of the issue of the Renzella pre-sentence detention. He referred specifically to the period of "almost 12 months from 4 February 2004 until 29 January 2005"[8] spent in custody on other matters and stated that he was taking that period into account in the exercise of his sentencing discretion. Following the handing down of the sentence, a lengthy discussion took place between his Honour and counsel for the applicant Steven Black, Dr Sullivan. Dr Sullivan raised the issue of what had been taken into account by his Honour in terms of pre-trial detention. His Honour responded by saying:

"Dr Sullivan, were it not for the fact that I exercised my discretion to take into account time that your client, and indeed the three prisoners had been in custody in respect of unrelated matters that have yet to be resolved, then those sentences would have been considerably different."

49 The discussion continued in the following terms:

"Dr Sullivan: So, effectively, whilst Your Honour hasn't done the arithmetic, the sentence of today is that from today he does 12 months less 75 days, and then any sentence, if he were to be convicted, that he get in relation to any other trial, would mean that ...

His Honour: As I understand it, until the other two matters that I think he awaits, if he's convicted on either of those, he will not be credited with any pre-sentence detention.

Dr Sullivan: At all I'm talking about ...

His Honour: I have taken into account here.

Dr Sullivan: Yes and so yes Your Honour, I just needed the clarification. If Your Honour please now ...

His Honour: It's not an easy area Dr Sullivan."

50 The discussion resumed in the following terms:

"His Honour: I've not fixed a minimum. If my sentence were other, as I understand my taking into account the time he spent in custody, although not time related to these matters, I, in the exercise of my discretion, I'll allow for that in the sentence, so I have allowed for that in the sentence that I have already imposed.

Dr Sullivan: Yes and the ...

His Honour: Now had I not exercised that discretion, then clearly his sentence would have been very much greater, I've not done the sums. In those circumstances, clearly you might expect a minimum would have been fixed.

Dr Sullivan: Can I just indicate Your Honour that the discretion in so far as the use of the discretion in so far as the prisoner is concerned, is to clearly provide a benefit of giving the credit for those days that he's been in custody that aren't part of s.18. However if the net effect of it is ...

His Honour: Because otherwise it might operated very much unfairly against.

Dr Sullivan: If that person is acquitted subsequently yes.

His Honour: Prisoner who is subsequently acquitted."

51 It is clear from the above that having taken into account the pre-sentence detention which fell outside s 18(1) of the Sentencing Act, Judge Morgan-Payler imposed a total effective sentence of 12 months' imprisonment. Having done so, it was then necessary for him to determine whether or not, in the exercise of his discretion, he should fix a non-parole period under s 11(2) of the Sentencing Act 1991. It is submitted on behalf of the applicant that there was "nothing sufficient to overcome the obligation to fix a non-parole period". It is clear that there is not an obligation to fix a non-parole period in respect of a sentence of imprisonment of less than two years. Section 11(2) of the Sentencing Act provides a discretion to fix a period of less than two years but not less than one year.[9] Had the sentencing judge determined to fix a non-parole period, by reason of s 11(3) of the Sentencing Act 1991, he would have been obliged to have made the period of non-parole one of six months or less. He determined not to fix a non-parole period. Whilst it is generally desirable that reasons be stated for not fixing a non-parole period, that is not mandatory and in the circumstances of this case, the judge was not obliged to give reasons for not fixing a non-parole period.[10]

Ground 6

52 Taking into account the pre-sentence detention which fell outside of s 18(1) of the Sentencing Act 1991, the effective sentence imposed upon the applicant was 1 year 11 months and 13 days if the sentencing judge took into account, as he said he did, the pre-trial detention period of "nearly one year". If he took into account the period of 66 days pre-sentence detention relating to the matters dealt with later by Judge Duckett then the effective sentence imposed was 2 years 2 months and 18 days' imprisonment. As stated above, taking into account those matters, Watts was effectively sentenced to a head sentence of 2 years 11 months and 13 days imprisonment. Phillipp Black was sentenced to a head sentence of 2 years 5 months and 13 days' imprisonment on the same basis. When those matters are taken into account, it is apparent that as was suggested by the discussion which took place between him and counsel for the applicant after handing down sentence, the sentencing judge did not take into account the period of 66 days under discussion. This conclusion is reinforced by the fact that his Honour stated specifically that he took into account the period from 4 February 2004 to 29 January 2005. Furthermore in my view, the lack of significant difference between the sentences imposed upon the applicant Steven Black and the sentences imposed upon the other offenders, particularly taking into account his young age and lack of prior convictions is such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done to the applicant.[11] This is all the more so when one considers that the sentencing judge observed that the youth and "lesser prior convictions" of the applicant put him in a "different position to the others".

Grounds 1 and 5 - Manifest Excess

53 Furthermore, and returning to the argument addressed to grounds 1 and 5 on behalf of the applicant, the submission is that taking into account the totality of the pre-sentence detention the sentence is manifestly excessive when regard is had to the youth of the applicant, his relatively few prior convictions and prospects of rehabilitation. It is true that the sentencing judge observed that there was no evidence of any remorse by the applicant. No discount in sentence was available by reason of a plea of guilty because the applicant did not so plead. True it is, as the judge observed, that the offending involved the invasion of a home by the applicant and two other men and caused the occupants, including two young boys, to be terrified by the behaviour in which he engaged jointly with his co-accused. Nevertheless, the applicant was 18 years of age at the time of the commission of the offences. His prior convictions were limited, he having been fined $1000 on burglary, and previously theft and cannabis possession offences in January 2003. His Honour accepted that the applicant had had a difficult background, but had the support of both parents and had commenced a pre-apprenticeship course which had ceased by reason of the charges before the court. The judge found that the applicant's period in custody had been "salutary indeed". In my view, a sentence of 12 months' imprisonment by itself, although stern, was not in all the circumstances manifestly excessive. However, when one considers the Renzella pre sentence detention which was applicable, and assuming that the sentencing judge took that period fully into account, the totality of the sentence imposed must be regarded as excessive. However, taking into account the clearly stated view of his Honour, that the youth and the less significant prior convictions of the applicant placed him in a different position from the other applicants, it appears to me to be likely that his Honour did not in fact give full weight to the Renzella factor when he sentenced the applicant Steven Black. I conclude that the final effective sentence to be served by Steven Black is such that notwithstanding having properly taken that factor into account fully for the other two applicants, and having no doubt intended to do so in relation to Steven Black, his Honour in fact failed to do so. Regrettably, the sentencing of the applicant has been fraught with difficulty, by reason of the fact that three separate trials were conducted by three different judges and not in the order in which the offences were alleged to have occurred. The dilemma now, is how to remedy the situation taking into account the fact that the applicant was sentenced to a straight sentence of 12 months imprisonment just over two years ago?

54 In my view no good purpose is to be achieved by endeavouring to reconstruct artificially a sentence in the past. The sensible course is to examine the situation on the facts known at the time of handing down this appeal. An appeal Court consisting of the same members has dealt with all three appeals by the applicant. One of those appeals has been dealt with and the applicant is to be retried. That leaves the applicant's application to appeal in relation to the sentence imposed by Judge Duckett to be determined by the Court. The issues relating to the Renzella question raised by this appeal have relevance in that other remaining application. In my view the pragmatic and sensible course is for the Court to endeavour to deal with the matter in consideration of the issue of totality arising in that application.

55 For the above reasons I would dismiss the applicant's application to appeal the sentence of Judge Morgan-Payler.

- - -

[1] [2007] VSCA 49.

[2] [1997] 2 VR 88.

[3] The question as to whether the cancellation of parole by the Adult Parole Board in consequence of conviction and sentence amounts to "fresh evidence" is at present under consideration by the Court of Appeal in R v Alashkar and R v Tayor both of which were argued before the Court on 2 April 2007.

[4] Each of the applicants had faced trial in November 2004 when the jury had been discharged without verdict.

[5] It should be observed that the transcript of the sentencing remarks states that a direction was made that a minimum term of 14 months be served. However it is common ground between the parties that subsequent to the handing down of the sentence the judge, apparently pursuant to the slip rule, amended the records of the Court so that the minimum term of 12 months was imposed. Had the record not been amended, clearly there would be sentencing error as s 11(3) of the Sentencing Act 1991 requires a non-parole period to be "at least six months less" than the total effective sentence.

[6] [1997] HCA 26; (1996) 189 CLR 295 at 302.

[7] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402 at 404.

[8] The actual period of pre-trial detention which related to matters later dealt with by Judge Sexton was between 4 February 2004 and 17 January 2005, a period of 11 months and 13 days. In addition there was a period of 66 days upon which the applicant was held on remand in relation to matters subsequently dealt with by Judge Duckett and which was specifically taken into account as s 18(1) pre-trial detention.

[9] See R v Watts [1998] 4 VR 244 at p.246.

[10] See R v Sener [1998] 3 VR 749 at 751-2, per Batt, JA, cf; R v Watts pp.246-247, per Charles, JA.

[11] R v Taudevin at p.404.