Regina v Vann [2006] NSWCCA 260 | Case summary

1 BEAZLEY JA: I agree with Hislop J. 2 HULME J: I agree with Hislop J. HISLOP J: 3 On 17 January 2002 the respondent and two others carried out a home invasion at West Hoxton. As a result the respondent was charged with the offence of robbery whilst armed with a dangerous weapon contrary to the Crimes Act 1900 s 97(2). He pleaded guilty to the charge. The maximum penalty pursuant to s 97(2) is imprisonment for 25 years. 4 On 8 February 2002 the respondent shot and killed a person at a cinema. As a result he was charged with murder. He pleaded guilty to the charge. 5 On 16 February 2002, during a search by police officers of his premises, 2.7 grams of heroin and associated indicia of supply were found. As a result the respondent was charged with, and pleaded guilty to, the offence of supply prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 s 25(1). 6 The respondent was 20 years of age at the time of the offences. He had previous convictions for custody of a knife in a public place and a driving offence. 7 On 28 October 2004 the respondent was sentenced by Dunford J in the Supreme Court of New South Wales in respect of the murder charge. His Honour imposed a sentence of 19 years imprisonment commencing on 16 February 2002 and expiring on 15 February 2021 with a non parole period of 14 years and 3 months commencing on 16 February 2002 and expiring on 15 May 2016. 8 On 23 March 2005 Sophear Em, one of the two other participants in the home invasion, was sentenced on five counts of breach of the Crimes Act 1900 s 97(2) arising out of the home invasion. Each count related to a different victim. Justice James in the Supreme Court of New South Wales sentenced him in respect of each offence to a fixed term of imprisonment of 12 years to commence on 20 May 2003 and expire on 19 May 2015. The sentences were to be served concurrently. Em was 19 years old at the time of the offences. His Honour said the fixed terms would be equivalent to what would have been the non parole periods if he had imposed sentences containing non parole and parole periods. 9 Justice James at that time also sentenced Em for a murder which he had committed during a home invasion which had occurred on 7 January 2002 and certain related offences. The first of these sentences commenced on 20 May 2002 and expired on 19 May 2004. The second and third sentences are to commence on 20 May 2013 and expire on 19 May 2023 and 19 May 2029 respectively. 10 Em has appealed to the Court of Criminal Appeal against the conviction and sentence in relation to the murder and related offences and has sought leave to appeal against the sentences imposed for the home invasion. The matter has been heard and judgment is reserved. The Court was informed that the other participant in the home invasion at West Hoxton has not been located or charged. 11 On 17 February 2006 the respondent came before Shadbolt DCJ for sentence on the robbery and drug charges. 12 The facts of the robbery offence, as stated by his Honour in his Remarks on Sentence were: … the present prisoner, with another man, called Em and another unknown person, invaded the house of [M], held him at gunpoint, forced him to the ground and bound his hands behind his back. His wife was required at gunpoint to bring other occupants of the house to the room where the crime was being committed, with the result that [A] and her boyfriend [R] and [J], who was having a shower at the time, were rounded up and they too were held at gunpoint. Jewellery, money and other items were taken from them. Their mouths were gagged with ducting tape and they were told not to call the police. The robbers left. They freed themselves soon after and raised the alarm. A was aged 17 and J 16 at the time of the offence. 13 His Honour found mitigating circumstances in that the respondent's criminal record was "slight", he was not regarded by the Court as being beyond reformation and rehabilitation, the evidence did not indicate a course of criminal conduct and he had pleaded guilty. His Honour took into consideration all of these matters. He regarded the offence as very serious. He considered the sentence imposed by James J on Em was "a sentence having regard to the objective criminality with which I respectfully concur"; he was unable to distinguish the respondent and Em in their criminality and concluded the respondent should be sentenced to a similar sentence to Em for the s 97(2) offence with the same discount for his late plea. 14 His Honour, in sentencing the respondent, took into account a further 4 offences pursuant to s 97(2) on a Form 1 document pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. These offences were all committed during the home invasion. 15 On 17 February 2006 his Honour sentenced the respondent in the following terms: The present sentence the prisoner is serving is nineteen years with a non parole period of fourteen and a quarter years. I sentence the prisoner to twelve years' imprisonment, two years which will run concurrent with the present sentence and ten years in addition to the fourteen and a half years that he is serving. I find special circumstances in the requirement to partially accumulate the sentences and the new non parole period I set overall is sixteen years with a head sentence of twenty four and a quarter years. The original sentence dated from 16 February 2002 and would have expired on 15 February 2021. The non parole period of fourteen and a quarter years commenced on 15 May 2016 and would have expired on 14 February 2021 with the head sentence. The new sentence will date from 16 May 2014 and will expire on 15 May 2026. The new non parole period is sixteen years to date from 16 February 2002 and will expire on 15 February 2018. 16 His Honour explained the sentence to the respondent in the following terms: What has occurred is that you have been sentenced to twelve years, two years of which is to run concurrent with the sentence that you are now serving. Ten years will be in addition to the sentence you are now serving and that is added to the non parole date, but I have set a new non parole date overall of sixteen years which means in effect you will serve an additional two years for the matter in hand. 17 His Honour also sentenced the respondent to 2 years imprisonment to commence on 16 February 2002 without any additional term in respect of the drug offence. 18 On 31 March 2006 his Honour purported, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999, to vacate the sentence he imposed on the respondent in "the totality of the" paragraph I have quoted in paragraph 15 above. His Honour then said: The sentence which this court imposes on him is a sentence of four years to commence on 16 February 2014 and to expire on 15 February 2018. There is an additional term of eight years to commence on 15 February 2016 and to expire on 15 February 2026. The new non parole period represents as a percentage 66.66 per cent of his total sentence. I have found special circumstances in those already enumerated, namely: (1) His age. (2) His slight previous record before the commission of this offence. (3) The capacity for rehabilitation and the work in that regard that he has already undertaken in prison. (4) Because it is necessary to find special circumstances if sentences imposed are to be accumulated. 19 The Director of Public Prosecutions has appealed pursuant to s 5D of the Criminal Appeal Act 1912 against the sentences for the robbery and the supply prohibited drug. The Notice of Appeal is somewhat ambiguous as to which of the sentences for the offence under s 97(2) is the subject of the appeal. The grounds of appeal are that the sentences are manifestly inadequate. 20 The Crown submits that the sentences are manifestly inadequate as: a) the non parole period failed to reflect the objective seriousness of the robbery offence; b) the sentencing Judge failed to fix a discrete non parole period for the robbery offence; c) the sentencing Judge fixed too great a degree of concurrence with the sentence previously imposed for the offence of murder; d) the sentencing Judge fixed a term which had already expired as the sentence for supply of a prohibited drug. 21 The Crown pointed to a number of errors by his Honour in his original Remarks on Sentence relating to references to various dates, the expression of a single non parole period encompassing the existing non parole period for the offence of murder and the non parole period for the robbery offence and the failure to apply s 44 of the Crimes (Sentencing Procedure) Act 1999 in the form applicable where the offence occurred prior to the commencement of the 2002 amendments to that Act. 22 The Crown also pointed to errors in the Remarks on Sentence dated 31 March 2006 in that his Honour purported to impose a sentence of 4 years to commence on 16 February 2014 and expire on 15 February 2018 but then imposed an additional term of 8 years to commence on 15 February 2016 and expire on 15 February 2026; the period specified was 10 years not 8 and the first 2 years of the additional term overlapped the last 2 years of the sentence of 4 years. 23 Notwithstanding these matters it appears tolerably clear that his Honour's ultimate intention was to sentence the respondent to 12 years imprisonment with a non parole period of 4 years and to so structure the sentence as to impose an effective non parole period of 2 years. However the effective non parole period imposed was in fact 1 year and 9 months. It was on this basis that the matter was argued. 24 In my opinion a non parole period of 4 years, being one third of a total sentence of 12 years, is unacceptably lenient, the more so when the sentence is structured to reduce the effective non parole period to 1 year and 9 months. This was a very bad home invasion in which a family and their visitor were terrorised by three men wearing balaclavas and carrying respectively a knife, a pistol and a rifle. The victims were threatened, robbed, bound and gagged. The level of criminality was of a very high order. The non parole period does not address the criminality particularly in terms of deterrence and denunciation. 25 His Honour found special circumstances in his Remarks on Sentence dated 31 March 2006. These were of limited significance and the matters his Honour considered constituted special circumstances had been taken into account by him in determining the head sentence. They do not demonstrate that a period of 8 years parole is required.

26 The head sentence of 12 years is within the range which was reasonably open to his Honour and I would not vary it. 27 In my opinion the non parole period is manifestly inadequate having regard to the high level of criminality involved in this offence. If it was not for the need to have regard to the principles of totality I would not have varied the statutory ratio. However, having regard to principles of totality and the fact that the respondent has some prospects of rehabilitation and will need to adjust following a long period in prison I would impose a non parole period of 7 years to commence on 16 February 2014 and expire on 15 February 2021. 28 The sentence imposed for the drug offence was wholly subsumed in the sentence for murder. There is force in the Crown's argument that an actual punishment should have been imposed. However, having regard to the other sentences imposed on the respondent and as this is a Crown appeal I consider it unnecessary to intervene in that regard. 29 Before proceeding to formulate the orders I propose I should add this. The sentencing Judge had no power to interfere with the sentence previously imposed by Dunford J for the respondent's offence of murder. Except as an historical fact that sentence was not before his Honour. Nevertheless the terms of some of his Honour's remarks on 17 February 2006 suggest he did purport to alter Dunford J's orders. 30 As has been said, on 31 March 2006, his Honour purported to vacate the orders he had made on 17 February 2006 in respect of the offence under s 97(2). It seems to me that, rather than become involved in a consideration of whether that order vacating was validly made, this Court should deal comprehensively with the orders Judge Shadbolt made in respect of the s 97(2) charge and quash them all. However I make it clear that in doing so, the orders I propose will have no impact on those made by Dunford J.

Regina v Vann

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