Vella v The Queen [2011] VSCA 126

2 The appellant, Craig Anthony Vella, pleaded guilty in the County Court at Melbourne on 18 August 2009 to one count of attempted armed robbery, two counts of aggravated burglary, one count of theft, one count of being a prohibited person possessing unregistered firearm, and one count of armed robbery. The offences occurred on 13 November 2008.

3 At the time of his plea, he was aged 43 years and he admitted a number of prior convictions. They included six findings of guilt from two Magistrates' Court appearances, one on 7 October 1982 for the offences of burglary, handling stolen goods and failing to appear, and another on 18 October 1982 for using indecent language and threatening words in a public place and unlawful assault. His prior convictions also included 74 convictions from 25 court appearances between 10 November 1983 and 25 March 2008. Those offences included burglary and theft, resisting a police officer, trespassing, being armed with an offensive weapon, making numerous threats to kill, harassing a witness, unlawful assaults, destroying or damaging property, breaching a community based order, failing to appear, recklessly and intentionally causing injury and numerous drug related convictions for possession, cultivation, trafficking and using.

4 Notably, the appellant was convicted on 25 March 2008 of three charges of making a threat to kill and two charges of harassing a witness. He was sentenced to a term of imprisonment for a period of three months, which term was wholly suspended for a period of 12 months, thus at the time of these offences, that suspended sentence was current.

5 After hearing a plea on behalf of the appellant, the sentencing judge imposed the following sentences:

Count 4 (prohibited person in possession of a firearm):

6 It was ordered that the sentences on counts 2 and 3 be served concurrently and cumulatively upon the sentence on Count 6. It was further ordered that the sentences on counts 1, 4 and 7 be served concurrently and cumulatively on the sentences on Count 2 and 3. The result was a total effective sentence of seven years' imprisonment and his Honour ordered that the appellant serve a period of four years and six months before being eligible to apply for release on parole. The pre-sentence detention was calculated at 344 days.

7 The accomplice, Spiteri, was sentenced as follows:

8 Count 6 was the base sentence and the sentences on counts 1, 2, 3, 5 and 7 were ordered to be cumulative on Count 6. The total effective sentence was five years and three months and a non-parole period of three years was fixed.

10 Count 6 was the base sentence and the sentences on counts 1, 2, 3 and 7 were ordered to be cumulative on Count 6. The total effective sentence was three years and six months. A non-parole period of two years was fixed.

11 On 30 April 2010, Neave JA granted the appellant's application for leave to appeal against his sentence.

12 The appellant was one of three offenders who participated in committing offences between 2.30 am and 4.50 am on Thursday, 13 November 2008 at various locations in the northern suburbs of Melbourne. On each occasion, a man named Micah Duncan was the driver of a vehicle and the appellant and another offender, Shane Spiteri, got out of the car and committed the various offences referred to above. The appellant was in possession of a loaded sawn-off shotgun and Spiteri was in possession of a knife.

13 The first offence of attempted armed robbery was committed at about 2.30am at a Mobil service station in Kings Road, St Albans, when the appellant and Spiteri tried to enter through doors that were locked and operated by a staff member, whose name was Julian Preng. The appellant kicked the door, pointed the shotgun at Mr Preng and then also at a customer before running away.

14 Counts 2 and 3, of aggravated burglary and theft respectively, concerned events occurring at the United petroleum store at 25 St Albans Road, St Albans when that store was entered by the breaking of a front window. The appellant was wearing a balaclava and was armed with a shotgun and Spiteri was in possession of a hunting knife, with his face covered with a beanie and a scarf. Attempts were made to open a cabinet and ultimately the appellant searched the till, locating $400 in cash, which they removed, as well as some batteries and cameras.

15 Count 4 concerned the firearm in the possession of the appellant. The shotgun was a .410 sawn-off shotgun, in respect of which the serial numbers had been erased and the barrel and butt had been cut down to reduce the length. The appellant was a prohibited person because, on 12 March 2008, he was convicted and sentenced to a term of three months' imprisonment, such sentence being wholly suspended, in relation to the offences of making threats to kill and harassing a witness.

16 Count 6, being armed robbery, occurred at a 7-11 store at the corner of Taylors and Arthurs Road, St Albans. There, the appellant pointed his shotgun at a man called Chanalia and told him to put his hands up and after Chanalia had run away and entered the store, the appellant instructed him to open the door, following which he entered the console area. The till was emptied and the money placed in a bag and cigarettes were also placed into a doona cover. The value of the cigarettes taken was in the order of $10,876 and $1,950 in cash was taken.

17 Count 7, being a count of aggravated burglary, concerned incidents that occurred at a Safeway petrol store on the corner of Keilor Road and Deakin Street, Niddrie. Those premises were entered by Spiteri through the roof and it was during the commission of this offence that the police became involved, intercepting Duncan as he attempted to drive away. Some time later, both Spiteri and Vella were arrested.

18 On this appeal, only one ground was sought to be argued, and it was in the following terms:

The learned sentencing judge erred by failing to take into account the period of time spent by the appellant on remand between 26 May 2006 and

4 September 2007.

19 Between 27 May 2006 and 4 September 2007, the appellant had been remanded in custody, having been charged with the murder of a man named Dewhurst. The appellant was acquitted of the count of murder on 4 September 2007, on the basis of self-defence, and released from custody. During this period, on 14 December 2006, the appellant received a sentence of three months' imprisonment in the County Court for drug offences and a firearms offence.

20 It had been submitted by counsel for the appellant to the sentencing judge that the first four months of that custody were served in solitary confinement and the entirety of it in protective custody and that period of time should be taken into account over and above the period of pre-sentence detention that his Honour fixed at 344 days. As I understand the submissions, it is argued that that should be done in a particular way taking into account pre-sentence detention, which does not fall within s 18(1) of the Sentencing Act. The additional time in question falls outside s 18(1) because it is not time served in relation to the matters for which the sentence is imposed and is regarded as 'dead time' given that ultimately there was an acquittal on the murder charge.

21 Section 18(1) of the Sentencing Act provides:

(1) If an offender is -

(a) in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order; or

(b) under section 31 ordered to serve the whole or part of a sentence or part sentence of imprisonment held in suspense -

any period during which he or she was held in custody in relation to -

(c) proceedings for the offence referred to in paragraph (a) or proceedings arising from those proceedings; or

(d) proceedings under section 31 -

including any period pending the determination of an appeal, must be reckoned as a period of imprisonment or detention already served under the sentence or restored sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence or the court making the order under section 31 otherwise orders.

22 During the plea on behalf of the appellant, counsel drew attention to the appellant's period of remand between 2006 and 2007. It was accepted on the appellant's behalf that this period was not simply a 'bank' on which he could later draw, but nonetheless, the judge was urged to take it into account. Reliance was placed on R v Renzella[1] and R v Chimirri.[2] Renzella recognises a common law discretion to take pre-sentence detention for unrelated matters into account. In his reply, the prosecutor effectively agreed, indicating that those cases were relevant authorities and that such periods of time which are outside the contemplation of s 18 of the Sentencing Act are to be taken into account in a discretionary manner.

23 In sentencing the appellant on 23 October 2009, sentencing judge rejected the submission which had been made on behalf of the appellant. His Honour said:

In my view, each of the cases referred to differ from the present in that there is a substantial gap between when the accused was acquitted of murder and released and the commission of these offences, that is, some 15 months. That was not a feature of Renzella or the other cases. To accede to this submission would be to sanctify the proposition that a prisoner can bank a period of incarceration to be drawn on at some later and distinctly separate occasion when he has committed an unrelated further crime. I do not accept that that is what this line of authority, as cited, was intended to sanction.

Even if I were wrong about the availability of a discretion as to include within the time calculated as being served under these circumstances some period of an earlier remand in connection with an entirely different matter, I would not exercise this discretion in your favour. You are, according to at least to [sic] the further presentment, a seasoned and experienced criminal. The period on remand had no effect in terms of your re-offending, leaving entirely aside your trial and acquittal. I ask the rhetorical question how long could you keep this bank of confinement on your books and in your favour. In my opinion, this submission should be rejected.[3]

24 His Honour thus reached two conclusions: first, the authorities relied upon did not sanction the submission that the period be taken into account. Second, in the event of error on that conclusion, in any event, his Honour would not exercise his discretion in favour of the appellant.

25 In this Court, the Crown, by their written submissions, conceded that the judge was in error. By reference to R v Warwick[4] and R v McMahon,[5] counsel for the Crown accepted that fairness demanded that this period of time on remand be taken into account in the way that counsel for the appellant had submitted to the sentencing judge. Counsel, however, went on to submit that, despite that error, no different sentence should be passed, given the particular circumstances of this case.

26 Orally, counsel submitted that the concession might have been in error, but in fairness to the appellant, he did not withdraw it.

27 It is, I think, necessary to briefly consider whether the Crown's concession is properly made. In my opinion, there could be no argument that, as part of the background and personal circumstances of the appellant, this period of custody followed by an acquittal was something to be considered. However, given that the sentencing judge's reservations to the appellant's submissions were based on the time that had passed between the end of the remand period and the commission of these offences and the even longer time until his Honour came to impose sentence, a question raised by the ground of appeal is whether and how the circumstances in this case fit within the particular situations referred to in those cases dealing with dead time, that is, time spent in remand for separate offences at the same time as pre-sentence detention for the offences under consideration, where there is a later acquittal on the separate offences.

28 It is true, as his Honour noted, that in Renzella there was no 'substantial gap' of the kind the sentencing judge in this case referred to. Likewise in Chimirri, the appellant, who was charged and sentenced for kidnapping, had also been in custody during the same period in respect of a charge of attempted murder, of which he was later acquitted.

29 However, in the judgment of this Court in R v Warwick,[6] which had been decided after the sentencing judge imposed sentence in this case, the Court appeared to allow for time in custody which occurred 'in respect of other matters between 25 March 2004 and the date of sentence' to be taken into account under the Renzella principle in sentencing the accused for offences committed in January 2009. In that case, the sentencing judge had taken the other periods of custody, which occurred between 2004 and 2005, into account and the issue on the appeal was whether her Honour had done so adequately.

30 Relevantly for this case, in the course of judgment, the Court said: [7]

There is one matter raised by counsel for the appellant to which we should refer specifically. Prior incarceration for other matters may be causally relevant to the offending for which the person falls to be sentenced and in that sense may be said to mitigate the offender's culpability for the later offending. That is a proper argument, quite separate from the Renzella line of argument. Again, we see nothing in the way this case was conducted to suggest any error on her Honour's part in that respect.

31 Later, suggesting that the application of the Renzella principle may need to be further considered, the Court added:

The question which may require investigation is whether a form of judicial compensation by way of sentence discounts in relation to other matters is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria, as it stands, is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that unjust imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day.

32 In my opinion, the point of the line of authority on which the appellant relies is to ensure that, in appropriate cases where time spent in custody prior to sentence is attributable to other charges of which an accused is later acquitted, that 'dead time' is taken into account over and above what is required by s 18(1) of the Sentencing Act 1991. Despite the fact that, in this case, the claimed 'dead time', being the time on remand as a result of the charge of murder, was completed more than a year before the appellant committed the offences that we are now considering, as matters presently stand, that period of time is able to be considered within the Renzella principle. That is also the effect of the reasons of Tate JA in the most recent consideration of the issue in Karpinski v R.[8]

33 Before us, counsel for the appellant accepted that, also consistent with the passage from Warwick, cited at [30] above, a proper way to deal with the appellant's earlier remand was to take it into account as part of the offender's personal circumstances. Indeed, in the course of submissions to the sentencing judge, then counsel for the appellant relied on a number of matters concerning the custodial remand for murder and the consequent circumstances:

(a) the fact of the custody itself as part of his personal history;

(b) that the alleged victim was associated with the underworld figure Dino Dibra and that as a result he was placed in protective custody because there was a 'price on his head';

(c) upon release, he feared the risk of retribution continued;

(d) the period in custody resulted in the loss of his home;

(e) upon release, the appellant resumed drug use and suffered significant depression;

(f) his house was 'fire bombed' as a result of a dispute with his former partner, that relationship having collapsed when he was on remand; and

(g) the time on remand should be taken into account in formulating the sentence and a failure to do so may infringe the principle of totality.

34 The rejection by the sentencing judge of the application of the Renzella principle in this case, coupled with his Honour not having given the appellant's period in remand charged with murder the attention and significance he should have as part of the relevant background to the appellant's offences means that this ground is made out. His Honour's only other reference to it was an expression of 'some sympathy' for the fact that the appellant had, in the past, served time in custody in protection and may be required to do so again. The appellant was entitled to have this properly brought to account in his sentencing, either pursuant to the application of the Renzella principle or as part of his history, although clearly not both. In my opinion, the ground of appeal is made out.

35 The next question to be resolved is whether a different sentence should now be imposed. As was pointed out by Brooking and Hayne JJA in R v Palmieri,[9] unless we conclude that a different sentence should have been passed, this appeal must be dismissed. Counsel for the appellant submitted that a different and lesser sentence should have been imposed and indeed sought a numerical reduction by as much as 75 per cent of the period of remand. Counsel for the respondent submitted that, given the nature and seriousness of the offences and the antecedence of the appellant, the appeal should be dismissed because no different sentence should have been passed. He pointed to a number of features of this case and the conduct of the appellant which would mitigate against such a course. They include:

(c) the fact that the offences were committed in company;

(d) the fact that there must have been a degree of planning for each offence;

(e) the victims of the offences were said to be 'soft targets' in that they were defenceless and vulnerable to this kind of offending, coupled with the impact on them;

(f) the use of a loaded shotgun by the appellant and the use of it to threaten, coupled with its accidental discharge;

(i) the use of drugs by the appellant, including on the night of these offences; and

(j) the fact that these offences were committed while the appellant was on a suspended sentence.

36 This was a violent, frightening and planned criminal enterprise attacking several different venues with varying degrees of force. General and specific deterrence are important considerations and I could not conclude that, notwithstanding the lack of attention the sentencing judge paid to the period in custody between 2006 and 2007, a different sentence should be passed. In my opinion, the individual sentences on the particular counts, particularly Count 6 of armed robbery, were lenient, as was the total effective sentence.

38 I agree with my brother Lasry AJA, for the reasons which he has given, that the appeal should be dismissed.

39 I also agree that the appeal should be dismissed, for the reasons given by my brother Lasry AJA.

40 The formal order of the Court is that the appeal is dismissed.

[1] [1997] 2 VR 88.

[2] [2003] VSCA 45.

[3] R v Spiteri and Ors (Unreported, County Court of Victoria, Judge Campbell, 23 October 2009) [48]-[49].

[4] [2010] VSCA 166.

[5] [2006] VSCA 240.

[6] [2010] VSCA 166.

[8] [2011] VSCA 94 [28]-[64], see also [2]-[8] (Weinberg JA).

[9] [1998] 1 VR 486, 490.