Shalders v The Queen [2020] VSCA 323

CRIMINAL LAW - Sentence - Leave to appeal - Armed robbery - Attempted armed robbery - Theft - Possessing imitation firearm whilst prohibited person - Committing indictable offence whilst on bail - Total effective term of 5 years and 6 months' imprisonment with non-parole period of 3 years and 4 months - Whether specific error on part of sentencing judge by failing to take into account delay between offending and sentence - Applicant proceeded to contest charges until final directions hearing before trial - Delay not inordinate, and not relevantly material - In any event, no reasonable prospect that lesser sentence would be imposed if leave to appeal granted - Leave to appeal refused.

1 On 19 December 2019, the applicant, Michael Shalders, pleaded guilty in the County Court at Melbourne to the following charges. On 30 June 2020, he was sentenced as set out in the table below.

Armed robbery [s 75A - Crimes Act 1958]

Attempted armed robbery [ss 75A, 321M and 321P - Crimes Act 1958]

Attempted armed robbery [ss 75A, 321M and 321P - Crimes Act 1958]

Attempted armed robbery [ss 75A, 321M and 321P - Crimes Act 1958]

Theft [s 74 - Crimes Act 1958]

Possessing an imitation firearm whilst a prohibited person [s 5AB(2) - Control of Weapons Act 1990]

Committing an indictable offence whilst on bail [s 30B - Bail Act 1977]

7 years' imprisonment with a non‑parole period of 5 years

2 By notice dated 31 August 2020, the applicant now seeks leave to appeal against that sentence on the following ground:

The Learned Sentencing Judge erred in failing to give any weight to the period of delay between the date of the Applicant's offending and the date of the applicant's sentence.

3 For reasons that follow, I would refuse leave to appeal.

Circumstances surrounding the commission of the offences

4 On the afternoon of Monday, 21 May 2018, the applicant, and a friend, 'ZB', left an address in Melton South and drove off in ZB's car. The applicant asked ZB to drop him off at the Lerderderg Gorge, not far from Bacchus Marsh. He told ZB that he expected to be collected from that location by his ex-girlfriend. At about 5:00 pm, ZB drove off from Lerderderg Gorge, on his own.

5 There were four victims of this offending, 'AL', 'TV', 'JV', and 'VN'. They were all young men, aged in their early twenties. They were friends who studied together. The applicant had never previously met any of them.

6 Shortly after 5:00 pm, AL drove his 2005 Toyota Camry into the carpark of the picnic area of the Gorge. Once the car was parked, the four young men prepared to go for a walk through the bush. They saw the applicant near the entrance to the carpark. He appeared to be watching them. He was wearing a black 'hoodie' and a cap. The then set off on their walk, returning to the carpark at about 6:00 pm.

7 The applicant then approached them and spoke about 'smoking a joint'. They told him that they did not use drugs. He followed them as they walked towards their car, and asked them who was driving. In a state of some anxiety, they told him that it was AL. They then offered him a lift home. The applicant said, somewhat aggressively, that he would drive. They told him that this was not going to happen.

8 According to the sentencing judge, the applicant then subjected the four men to a terrifying ordeal. He menaced them with a silver-coloured imitation firearm which had a six-to-eight inch barrel. He was, at that time, a 'prohibited person', by reason of having been made subject to a final family violence intervention order within the five years preceding the date of the offending (charge 6 - possession of an imitation firearm whilst a prohibited person).

9 The applicant continued to point the firearm at the group. He demanded that they hand over the keys to the vehicle, and also their mobile phones (charges 2 and 4 - attempted armed robbery). They did not immediately respond. This caused the applicant to point the gun at JV's forehead, and demand the car keys from him (charge 3 - attempted armed robbery). JV said that he did not have the keys, and turned out his pockets to make that abundantly clear.

10 The applicant then moved the gun even closer to JV's forehead and made further demands. AL, who, at that stage, was terrified that the members of his group would be shot, threw his car keys on the ground, close by where the applicant was standing. He then handed over his mobile phone (charge 1 - armed robbery).

11 The applicant then got into the Toyota Camry and drove out of the carpark, in what was described as an erratic manner. It seems that TV had left his mobile phone in the back seat of the car.

12 After the applicant had driven off, the four victims fled into the bush area around the carpark. Shortly afterwards, they telephoned 000 and sought police help.

13 At about 6:50 pm, police arrived at the carpark. They were initially unable to locate any of the four victims. However, at about 7:00 pm, the group walked out of the bush, with their hands held in the air. They were then taken by police to the Bacchus Marsh Police Station.

14 The following day, the applicant sought to trade TV's mobile phone for a quantity of the drug 'GHB'. He eventually sold the phone for $400 (charge 5 - theft).

15 Later that day, the applicant sent a Facebook message to a friend which included a picture of him holding a long barrelled silver hand gun. On 25 May 2018, he sent a series of Facebook messages to a different male associate in which he discussed the possibility of finding someone to 'roll'. He then sent the unknown male a photograph of a handgun with a silver barrel. The friend asked if the gun was real, and the applicant said that it was. The judge noted that she mentioned these latter facts only 'for context', on the basis that they were relevant to the police investigation into the charged offences.

16 The applicant was on bail at the time of committing the offences charged. He had been bailed by police on 12 May 2018 (related summary charge 11 - committing an indictable offence whilst on bail).

17 On 28 May 2018, the stolen Toyota Camry was recovered. Police could not, at that stage, locate TV's mobile phone. However, they recovered it several days later, in the possession of another.

18 On 3 June 2018, the applicant was arrested. He was taken to the local police station and searched. He was found to be in possession of AL's mobile phone.

19 The following day, police seized the applicant's mobile phone and, as part of their investigation, captured the series of Facebook messages that he had sent between 21 and 25 May 2018.

20 On 25 June 2018, the applicant declined to be interviewed by the informant. Subsequently, three of the four members of the group identified him as having been their assailant. On 18 July 2018, the applicant was charged. At that time, he was on remand for unrelated matters, which later resolved.

21 That meant that the applicant's presentence detention with regard to these offences commenced on 6 October 2018. The matter proceeded to a contested committal. One of the four victims, JV was extensively cross-examined on the issue of identity.

22 On 2 December 2019, when a final directions hearing prior to trial was scheduled, the matter finally resolved. At that stage, the applicant agreed to plead to guilty.

23 Having set out in some detail the circumstances surrounding the commission of these offences, the judge went on to say that she would take into account, as mitigation, the applicant's plea of guilty. Her Honour accepted that there was utilitarian value in that plea. It meant that none of the victims, apart from JV, had had to undergo cross-examination. She also found that the plea was indicative of remorse.

24 With regard to delay, it had been submitted that the period on remand had been additionally burdensome by reason of the fact that the applicant had not had access to educational programs of the kind available to sentenced prisoners. He had also been living with the uncertainty associated with his eventual punishment. It was submitted that this delay should significantly mitigate the sentence to be imposed.

25 In response to that contention, the judge stated:

I do not accept this argument as the very significant majority of that period is the customary period that it takes a contested matter to reach its final directions hearing. Once you indicated your willingness to plead guilty, the first available date for plea was booked in, and the court did not receive any later request or inquiry as to the availability of an earlier date. Of course I will reckon the period of time spent in pre-sentence detention in relation to your sentence.[1]

26 As will be seen, that particular observation in the sentencing remarks forms the basis for this application for leave to appeal.

27 The judge then turned to consider the effect of the applicant's conduct upon the victims. She noted that AL had provided a victim impact statement which spoke of the ongoing trauma that the offending had had upon him. None of the other victims had provided a victim impact statement.

28 Not surprisingly, AL's victim impact statement spoke powerfully of the impact of the offending upon him. He had been diagnosed with post-traumatic stress disorder. Plainly, this offending would have had a significant effect upon the other victims as well.

29 Finally, the judge addressed the applicant's personal circumstances. He was aged 26 at the time of the offending, and 28 when he eventually came to be sentenced. He had, at one point, been diagnosed with attention deficit hyperactivity disorder ('ADHD'), but had managed to complete Year 12. He had also been a keen football player.

30 The applicant had a good employment record, having completed an apprenticeship which qualified him as a diesel mechanic. It was only his drug use, which had escalated to a problematic level, that had cost him his job.

31 The applicant had five prior Magistrates' Court appearances. These dated back to August 2015. He had convictions for threatening to inflict serious injury, and possessing a dangerous article. He was subsequently convicted of driving and dishonesty offences in 2016, and then, in 2017, of persistently contravening a family violence order.

32 The applicant had partnered with a woman whom he met when he was 19, and with whom he shared a daughter. That child was aged six at the date of sentencing. The relationship had ended some five years earlier, largely because of the applicant's drug addiction. Nonetheless, he and his former partner appeared now to be on fairly good terms.

33 So far as his drug usage was concerned, the applicant began consuming methamphetamine at the age of 17. In his early 20s, his use of that drug escalated. By 2018, he was using up to half a gram a day. He had also used cocaine and Xanax. He had twice unsuccessfully undergone drug rehabilitation programs.

34 The judge noted that the applicant was well supported by his family and friends. She referred to a number of positive character references that had been tendered on the plea. These suggested that he had good prospects of rehabilitation. They also indicated that he had exhibited genuine remorse for his actions.

35 In addition, the judge referred to a psychological report by Ms Carla Lechner. She commented upon various stressful events that had impacted upon the applicant throughout his life. She diagnosed hypervigilance, generalised anxiety, avoidance, flashbacks, and nightmares. She found that the applicant had initially used methamphetamine to manage his generalised anxiety disorder but that, over time, as his usage of that drug had increased, it had, paradoxically, aggravated rather than reduced his anxiety.

36 Not surprisingly, the judge concluded that the offending was serious, and that it had had a significant effect upon the victims. She acknowledged that the applicant's conduct appeared to have been spontaneous. He had obviously not attended the gorge for the purpose of committing an armed robbery, or indeed any other offence. In that sense, the crimes were opportunistic.

37 In addition, the judge found that the offending had been carried out under the influence of drug use. The applicant said that he took the imitation firearm to the scene for self-protection, during what he claimed to have been an intended drug purchase. The judge made no finding in respect of that claim.

38 With regard to the objective gravity of the offending, the judge noted that it occurred at a remote location, at a time when the sun had set. The four young men who were the targets of the offending were not known to the applicant. Though his conduct may have been impulsive and drug related, he was quick to take advantage of the situation in a most serious and terrifying way. Moreover, the applicant was on bail at the time of the offending, and this was, clearly, an aggravating factor.

39 Although the applicant had one prior conviction for an offence of violence, threatening to inflict serious injury, this offending represented a serious escalation when compared to his overall criminal history. His prior convictions had consisted of charges for assault, driving offences, theft, and breaches of community correction orders.

40 With some caution, the judge said that she was prepared to assess the applicant's prospects of rehabilitation as 'good'.[2] For that reason, she said that she would allow a 'longer than customary period of parole eligibility' than would otherwise be the case.[3]

41 Her Honour also said that she took into account the effect of COVID-19 upon the prison population. She noted that prisoners were denied some of the ordinary concomitants of custody, such as face-to-face visits, the opportunity to enrol in educational courses, and to undertake limited forms of employment.

42 Finally, the judge referred to several cases said to be relevant comparators for the purpose of assessing current sentencing practices for these offences.[4]

43 In the applicant's written case, it was noted that he had been arrested, and remanded in custody on 3 June 2018. His trial had been listed for hearing on 26 March 2020, but the matter had resolved, the most serious charge laid against him of aggravated carjacking,[5] having been withdrawn. Aggravated carjacking, of course, requires the fixing of a non-parole period of not less than three years. For that reason, that offence is always likely to be vigorously contested, with a view to being resolved by way of a plea to a crime with less draconian consequences.

44 As it happens, armed robbery, pursuant to s 75A of the Crimes Act, carries the same maximum penalty of 25 years' imprisonment as does aggravated carjacking. However, there is not even a legislative requirement that a term of imprisonment be imposed for that offence. Perhaps more significantly, at least for present purposes, there is no statutory minimum non‑parole period.

45 The applicant drew attention to the fact that he had specifically relied on delay as a mitigating factor in the course of his plea. He had submitted that he had spent an unusually long time on remand and that this should result in a significant reduction in sentence. As noted earlier at [25] of these reasons, the judge rejected that submission. She gave two reasons:

• first, that the delay had not been inordinate, and was merely the 'customary period' that a contested matter would take to reach a final directions hearing, and
• second, that in any event, the delay was perfectly understandable and reasonable in the circumstances.

46 The applicant submitted that the judge's refusal to give any weight to delay as a significant mitigating factor constituted a specific error. He submitted that any delay, even if it be unexceptional and not inordinate, must be taken into account and given at least some appropriate weight. He referred to R v Miceli[6] in that regard.

47 In addition, the applicant relied upon this Court's decision in R v Meritt.[7] He submitted that if the judge proposed to disregard delay (on the basis that the applicant could have sought an earlier plea date, had he wished to do so), that line of reasoning should have been drawn to his attention, as a matter of procedural fairness.

48 Finally, it was submitted that the delay in this case assumed even more importance than usual, given Ms Lechner's conclusions as to the applicant's mental state. The same could be said with regard to the evidence placed before the judge regarding his attempts at rehabilitation whilst on remand. The COVID‑19 factor accentuated the weight properly to be given to delay.

49 The respondent submitted that the extension of time sought should be refused. It was said that the proposed challenge to the sentence lacked any merit.

50 More to the point, perhaps, it was submitted that there had been no undue delay in this case. The judge had been well entitled to reject the argument that it was a significant mitigating factor.

51 As indicated, the applicant was charged on 18 July 2018, within two months of the commission of the offences. Thereafter, the matter proceeded through the committal stream in an entirely orthodox manner. He chose to run a contested committal, putting the question of identification in issue, but knowing all along of his guilt of these offences.

52 The final directions hearing before trial was conducted on 25 November 2019. The matter was then adjourned to a further final directions hearing on 12 December 2019. This was done simply in order to enable the defence to file a defence response. At no stage prior to that date did the applicant offer to plead guilty to armed robbery as a lesser alternative to the charge of aggravated carjacking. Once the matter had resolved, it was listed for plea at the earliest practicable date.

53 The judge concluded that the 'very significant majority' of the delay was nothing more than the 'customary period' that it generally took for a contested matter to reach the stage of final directions hearing. It was submitted that the judge had been entitled to find that the applicant's continued desire to challenge the identity evidence was a matter solely within his control, and of his own choosing.

54 The applicant was aware, before committal, that three of his four victims had identified him as the assailant. In addition, there was evidence from ZB which placed him at the very remote location where the offending occurred, and at that time. He was also aware that police had recovered TV's mobile phone, which had been in the back seat of the Toyota Camry, and that there was evidence that he had been in possession of that mobile phone on 22 May 2018. It was on that date that he had offered to exchange it for GHB. In other words, this was a strong, if not absolutely overwhelming, prosecution case.

55 The judge's observation that the applicant had not requested an earlier plea date was just that. The respondent submitted that it did not reveal any sentencing error. Certainly, her Honour did not treat the applicant as having been at fault, or responsible, for such delay as had occurred.

56 In addition, the steps taken by the applicant towards rehabilitation, whilst he was in custody, were given full weight when assessing his prospects for rehabilitation. Her Honour also took into account the impact of COVID-19 as rendering imprisonment additionally burdensome. She plainly mitigated the sentence on that basis.

57 Accordingly, so it was submitted, leave to appeal should be refused.

58 In my view, this was a very serious example of armed robbery, committed upon four innocent young men who were strangers to the applicant. The circumstances surrounding the commission of these offences must have been terrifying, and would have had a profound impact upon the victims. The individual sentences and the total effective sentence were all clearly within range, and some might say well within range.

59 With regard to the judge's treatment of the issue of delay, there may be some force in the criticism that she should not have taken into account the theoretical possibility that the applicant might have sought an earlier plea date, had he wished to do so. That seems to me to be somewhat unrealistic, given the circumstances of this case. However, I do not regard that particular observation as being of such importance as to establish material error which vitiates her Honour's treatment of delay, and therefore vitiates the exercise of the sentencing discretion.

60 Moreover, if the ground, as drafted, is treated as one of specific error (as the applicant acknowledges), and the sentencing discretion were to be reopened, I can see no reasonable prospect of any lesser individual or total effective sentence being imposed.[8] For that reason alone, I would refuse leave to appeal.

[1] DPP v Shalders (Unreported, County Court of Victoria, Judge Marich, 30 June 2020) [21] ('Reasons').

[4] Middleton v The Queen [2018] VSCA 23; Ah-Kau v The Queen [2018] VSCA 296; Sharp v The Queen [2018] 327; DPP v Heyfron [2019] VSCA 130; Piacentino v The Queen [2019] VSCA 153.

[5] Pursuant to s 79A of the Crimes Act.

[6] [1985] 4 VR 588, 591-2.

[7] [2007] VSCA 1; (2007) 14 VR 392, 400 [35]-[36]; [2007] VSCA 1.

[8] Criminal Procedure Act 2009 s 280(1).