Court of Appeal (Vic)|2013-03-01|Before: Maxwell P, Redlich JA

Waugh v The Queen [2013] VSCA 36 (1 March 2013)

DPP v Waugh (Unreported, County Court of Victoria, Geelong, 18 November 2011, Judge Sexton)

1 After a trial in the County Court at Geelong, the appellant was convicted by a jury of one count of armed robbery, contrary to s 75A of the Crimes Act 1958 (Vic). The appellant also pleaded guilty to unlawfully possessing an unregistered firearm,[1] handling, receiving and disposing of stolen goods,[2] and possession of a drug of dependence,[3] namely 0.6 grams of amphetamine. He was sentenced as follows:

Armed robbery [Crimes Act 1958 (Vic) s 75A]

Prohibited person possess unregistered firearm [Firearms Act 1996 (Vic) s 5(1A)][4]

Handling, receiving, dispose of stolen goods [Crimes Act 1958 (Vic) s 88(1)]

Possession of a drug of dependence (amphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b)] [5]

Penalty of not more than 30 penalty units or 1 y or both

4 y with a minimum term of 2 y on the charges contained in Indictment C1107826.3 alone.

Compensation Order; Forfeiture Order and Disposal Order.

2 The appellant has appealed against the sentences fixed on the count of possession of a drug of dependence, the count of handling stolen goods, his total effective sentence and the non-parole period. Each of the sentences is said to be manifestly excessive and to infringe the principle of totality.

3 The appellant was on parole at the time of these offences and, by the time of sentence, his parole had been cancelled on account of the offending. The effect of the cancellation was that he was required to serve the unserved portion of the head sentence imposed for the earlier offending, which amounted to something over 18 months' imprisonment. We will refer to this as the 'parole sentence'. As at the date of sentence, he had served almost 12 months of the parole sentence. As will appear, the real issue in the appeal concerns the significance of the parole sentence for the sentencing judge's consideration of totality.[6]

4 The circumstances of the offences are conveniently set out in the sentencing judge's reasons:

Shortly before 7 am on the 23rd of August 2010, two cleaners and the manager of the Waurn Ponds Hotel were confronted by a man wearing a jacket with a hood obscuring his face, and brandishing a shotgun. The three employees were forced at gunpoint into a kitchen area and the manager was ordered to fill a bag with cash and coins from the hotel's safe in the office next door. The manager was struck over the head by the gunman and the two cleaners were tied up whilst lying face down on the floor. The gunman fled in the manager's car and stole $41,957. Police later identified the manager as providing the information to the gunman to enable the armed robbery to take place and he was charged with that and other associated crimes.

...

Police attended the address at which you were living on the 17th of November 2010 in order to execute a search warrant following the information they had nominating you as the gunman in the armed robbery. During the search of the premises, a shotgun containing two shotgun rounds was discovered. This was later found to be capable of being fired. It was not the shotgun used in the armed robbery.

On the 17th of November, you and your car were also searched by the police. Stolen goods were found in your car which, according to your counsel, you had bought in order to fix the hinges of a gate at a friend's place which you had damaged with your car. You were found to be in personal possession of a snaplock bag containing .6 grams of amphetamine.[7]

5 The appellant's co-offender on the armed robbery was sentenced to 4 years' imprisonment with a non-parole period of 2 years and 9 months. He received a significant reduction in his sentence for pleading guilty and for giving an undertaking to give evidence against the appellant, which he fulfilled.[8]

6 On 9 August 2012, the appellant was granted leave to appeal on the grounds that the individual sentences on the charges of handling stolen goods, and possession of a drug of dependence, were manifestly excessive and that the total effective sentence and the non-parole period were manifestly excessive and infringed the principle of totality. It is accepted by both parties that these grounds of appeal are linked, and should be considered together.

7 With regard to the 5 month sentence for possession of a drug of dependence, the appellant submitted that the sentence was manifestly excessive in light of the appellant's personal circumstances. The appellant has a long-standing addiction to amphetamine, dating from his involvement in a motorcycle accident in 2001 in which he suffered serious injuries. In a psychological report provided by Mr David Ball, psychologist, the appellant stated that he used amphetamines to manage his mood and self-medicate. The appellant submitted that a 5 month term of imprisonment was beyond the permissible range for this offence, having regard to the fact that the appellant had pleaded guilty to this offence, and that the very small quantity, 0.6 of a gram, supported the claim that the amphetamine was only for his personal use.

8 The appellant submits that the sentence of 16 months for handling, receiving and disposing of stolen goods was manifestly excessive. During the search of the appellant's car, police found stolen goods comprising two power tools, batteries and chargers and a stereo system. The appellant relied upon the fact that a charge of this magnitude would ordinarily be dealt with in the Magistrates' Court and that in accordance with well recognised authority, the sentence that is likely to have been imposed summarily may be taken into account. The appellant also pleaded guilty to this offence. Further, the appellant observes that 'it seemed to be accepted [by the sentencing judge] that the [appellant] had purchased at least some of the power equipment in order to fix a friend's gate'. It is submitted that these mitigating circumstances necessitated a lower sentence.

9 The respondent submits that these sentences were entirely appropriate, particularly having regard to the appellant's significant criminal record.

10 The appellant has evidently struggled for a long time with drug addiction, since his involvement in a motorcycle accident in 2001. He had three prior convictions for possession of amphetamines. The last conviction was recorded in June 2010. He had already received sentences of immediate imprisonment of 1 month and 3 months respectively for his other prior convictions for possession of amphetamines. He was on parole for trafficking in methylamphetamine at the time of this offence. The sentencing judge was entitled to have regard to his antecedent criminal history as it illuminates his moral culpability on the present count, bears upon his prospects for rehabilitation and reflects a need to impose sufficient punishment to deter him and other offenders from committing offences of a like kind.[9]

11 For a sentence to be manifestly excessive, the sentence imposed must be 'so far outside the range of a reasonable discretionary judgment as to itself bespeak error.'[10] Notwithstanding the small quantity of the amphetamine found in the appellant's possession, taking account of the appellant's prior convictions for like offences and his history of addiction, we are not persuaded that the sentence of five months was beyond the range reasonably open to her Honour.

12 As to the count of handling stolen goods, the appellant's multiple prior convictions for burglary and possession of a prohibited weapon, and a prior conviction for armed robbery are a significant consideration. He was also in breach of his parole. By committing this offence he manifested a continuing attitude of disobedience to the law.

13 The question on appeal is not whether the members of this Court would have imposed such a sentence but whether it was beyond a sound exercise of the sentencing discretion. The sentencing judge afforded significant weight to the appellant's criminal history and the consequent need to protect the community. It has not been shown that the individual sentence was beyond that which was open to her Honour.

Whether total effective sentence infringed the principle of totality

14 Taking the parole sentence into account, the appellant, if required to serve the entirety of the parole sentence and the head sentence on the present counts, will have served a combined total of almost 11 years' imprisonment. The appellant submits that the sentencing judge did not correctly apply the principle of totality and failed to consider the ways in which the total sentence could be adjusted in order to take the principle into account. The orders for cumulation in respect of the sentences for handling stolen goods and possession of amphetamine were, it was said, not appropriately limited to take into account the principle of totality. The argument necessarily involved the contention that the base sentence should have been moderated to accommodate the principle.

15 The principle of totality and its rationale was examined in Azzopardi v The Queen[11] by Redlich JA:

The rationale underlying the principle is that a 'just measure ' of an offender's total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. As Wickham J was to recognise in Magee v The Queen the sentence should be no longer 'than is necessary to meet the various purposes of criminal punishment'. Once the aggregate sentence satisfies both the mitigatory sentencing objectives as well as the punitive principles of just punishment, retribution, denunciation, deterrence and protection of the community, 'that is enough'. Wickham J also opined that '[m]ore than enough is wrong because the excess is not only purposeless but might be harmful.' Anderson J expressed similar views in Herbert v R.

One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v The Queen, that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[12]

16 In Mill v The Queen,[13] the High Court (Wilson, Deane, Dawson, Toohey, Gaudron JJ) stated that where the totality principle falls to be applied in relation to sentencing:

[A]n appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[14]

17 The appellant contends that the sentencing judge failed to adequately adopt either approach in sentencing the appellant, as the individual sentences for the offences of possession of a drug of dependence and for handling stolen goods were not lowered, nor were the orders for cumulation of these offences appropriately limited to take into account totality.

18 The sentencing judge did not suggest that the individual sentences had been moderated in order to satisfy the principle of totality. Her Honour explained the orders for cumulation on the basis that some cumulation was appropriate for each offence, as they represented very different types of offending:

I am of the view that given your record for dishonesty and drug offences, that I have no alternative to imprisonment on the possession of amphetamines and handling stolen goods charges, even with your pleas of guilty ...

I am of the view that there should be cumulation in respect of all the offences, as they represent a range of offending in different ways. However, I will take into account that the last three arose out of searches conducted on the same day.

I will reduce your minimum term on these offences to a small extent, to take into account that your parole sentence will be suspended while you serve that minimum term.[15]

19 We shall later address the last of the above paragraphs. Under the preferred approach suggested by the High Court in Mill, a sentence coherent with the principle of totality may be achieved by ordering that the sentence be served either partly or wholly cumulative upon the base sentence. In this case, only small orders for cumulation were made. As the Court of Appeal (Maxwell P, Redlich JA and Robson AJA) observed in R v Hogan,[16] the discretion to order cumulation between counts is a very broad one which should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.[17] Self-evidently, the degree of cumulation imposed by the sentencing judge indicates that her Honour gave appropriate consideration to the principle of totality. The modest 1 month cumulated on the count of possession of amphetamine and the 3 months cumulated on the count of handling stolen goods cannot themselves be said to be beyond a sound exercise of the sentencing discretion.

20 But the appellant identifies two further ways in which the principle of totality was said to be inadequately addressed in her Honour's reasons for sentence.

21 First, the appellant submits that the sentencing judge engaged in a parity analysis with respect to the appellant's co-offender on the armed robbery charge, without having regard to the principle of totality. Her Honour said:

Both the prosecutor and your counsel agreed that I should have regard to the sentence imposed on [the co-accused], despite some differences between you. Looking at the sentence of seven years' imprisonment, which the sentencing judge indicated would have been imposed on the manager for the armed robbery after a trial_._ I note that he received significant reductions in his sentence for pleading guilty and for undertaking to give evidence against you; which undertaking he fulfilled, but his offending was aggravated by the significant breach of trust involved because he was an employee of the hotel.

The other differences are that unlike him you have a criminal record and a prior conviction for armed robbery with a number of similar features to this one, as I have noted, and you committed this offence while on parole, so I will attempt to acknowledge these differences while taking into account that the two of you committed this offence of armed robbery together.[18]

22 It is clear from the plea transcript that the prosecutor invited her Honour to use the s 6AAA declaration made by the sentencing judge in the co-offender's case as a guide in sentencing the appellant. That was an invitation calculated to lead her Honour into error. (It is difficult to understand why it was thought that guidance might be had from a statement made by another judge, about the sentence he would have fixed for a cooffender on the counterfactual assumption that the co-offender had pleaded not guilty.) Moreover, her Honour was then invited to take account of discrete aggravating factors which applied to the co-offender and the appellant and which, it was said, balanced out, so that the s 6AAA declaration could be 'sensibly to some degree applied' to the appellant. The appellant's counsel did not challenge this approach.

23 As the respondent says, her Honour fixed a sentence which happened to fall within the broad range of sentences that was in fact reasonably open. But it is not correct in principle to arrive at a sentence by using a judge's s 6AAA statement in relation to a co-offender as some kind of benchmark, to be adjusted by balancing out aggravating features of the appellant and his co-offender. As this Court has made clear, a declaration under s 6AAA is not a sentence.[19] Moreover, the declaration is - of necessity - attended by a significant degree of artificiality.[20] We shall return to the appellant's further contention that this approach obscured the need for her Honour to fix a sentence on the armed robbery that would result in a total effective sentence proportionate to his overall criminality.

24 The second matter relates to the appellant's cancelled parole. The appellant had been sentenced to 4 years' imprisonment with a minimum of 2 years and 6 months' imprisonment in February 2008 for trafficking in amphetamines and ecstasy, possession of amphetamines and being a prohibited person in possession of a firearm. As noted earlier, his parole was cancelled following his arrest on these charges, and he was required to serve the parole sentence. The appellant contends that her Honour did not correctly apply the principle of totality and, as a consequence, did not moderate the sentences to allow for the parole sentence that the appellant was required to serve.

25 In a series of decisions, this Court has addressed the application of the principle of totality in such circumstances.[21] In DPP v Dickson,[22] Maxwell P (with whom Buchanan and Weinberg JJA agreed) summarised the position as follows:

Sentencing an offender whose parole has been cancelled is one of the most difficult tasks which can confront a sentencing judge. The judge is obliged to apply simultaneously a number of different rules, some derived from statute and others from common law, as follows:

(a) The prohibition on speculation

Parole having been cancelled on account of the later offences, the court in sentencing the offender for those offences must assume - when applying the principle of totality - that the offender will be required to serve the full parole sentence. This is because s 5(2AA)(a) imposes an absolute prohibition on the court speculating on action which the Parole Board might in the future take. Specifically, the court must ignore altogether the possibility that the Parole Board will decide to re-release the offender on parole before the full parole sentence has been served.

(b) The presumption of cumulation (s 16(3B))

By force of statute, the sentence imposed for the later offences must be served cumulatively on the parole sentence, unless otherwise directed by the court because of the existence of exceptional circumstances.

(c) The principle of totality

In fixing the sentence for the later offences, the court must take into account that the parole sentence will be served cumulatively. Viewed as a whole, the aggregate of sentences imposed by reason of cumulation cannot be greater than is warranted by the totality of the criminality represented by both the later offences and the original offences.

(d) Parole breach as an aggravating factor

On ordinary principles, the fact that the later offences were committed while the offender was on parole aggravates the seriousness of those offences.[23]

26 As the Court there re-affirmed, the principle of totality requires the Court sentencing the offender for the later offences to have regard to the 'parole sentence' in its entirety. The Court must take account of the offence or offences to which the parole sentence relates, the length of the parole sentence, and the offences on which the prisoner now falls to be sentenced, in order to determine what total effective sentence - together with the parole sentence - is no more than necessary to reflect the prisoner's overall criminality.

27 The Court is thus required to evaluate the overall criminality involved in all of the offences for which the appellant is undergoing sentence, to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole.[24] The sentencing judge must therefore combine the parole sentence with the base sentence, and such orders for cumulation as are contemplated, to see if the principle will be infringed. If it will be, the sentencing judge will either revisit individual sentences or the orders for cumulation to arrive at a sentence which does not infringe the principle.

28 The relationship between s 16(3B) and the principle of totality was explained by Redlich JA (with whom Vincent and Neave JJA agreed) in R v Mourad:

This Court must, however, ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B). Thus, while preserving the principle of cumulation enunciated in s 16(3B), the total sentence which the appellant is required to serve might be moderated so that the aggregate of sentences imposed by reason of such cumulation is not greater than any sentence required to fulfil the totality principle.[25]

29 Subsequently in DPP v Johnson,[26] Redlich JA referred to the line of authority which contemplates the ongoing operation of the principle of totality in light of s 16(3B) and an approach to applying the principle that is appropriately sensitive to the legislative policy behind the section. He concluded:

[A] sentencing court is entitled to give effect to the principle of totality in light of s 16(3B) of the Sentencing Act 1991, provided that the approach to its application is conducive to the legislative intent behind the section. That would require cumulation of that portion of the individual sentences on any term of imprisonment resulting from the cancellation of parole which together satisfies the principles of totality.[27]

30 The sentencing judge sought to give specific attention to the totality principle in its application to the cancellation of the appellant's parole. Her Honour explicitly addressed the requirements of s 16(3B) in the course of assessing the appellant's overall criminality. Her Honour further stated:

Both the maximum and minimum sentences I must impose today must, in accordance with the principle of totality, take into account the four years' maximum sentence received in 2008, the balance of which you are currently serving.

The minimum sentence I impose today may also take into account the fact that the balance of your parole sentence, which is approximately seven months now, will be suspended while the nonparole period I impose today is served. Again, by operation of the Sentencing Act.

I will take that into account but I will not do it by simply deducting seven months from your minimum term. I do not consider it is a mathematical calculation on the basis of the authorities to which I was referred.[28]

31 It is now necessary to go back to the submissions on the plea to understand why her Honour approached the question of totality and the parole sentence in this manner. The appellant's counsel on the plea, after referring to the cases of R v Bradley[29] and DPP v Dickson,[30] submitted that to take account of the principle of totality her Honour was required to mathematically reduce the non-parole period by the period of the parole sentence that the appellant would have to serve. We should state immediately that those decisions are authority for no such proposition.

32 After some discussion her Honour then appeared to accept that 7 months, being the balance of the parole sentence yet to be served, could be mathematically reduced from the non-parole period and that the whole of the parole sentence of some 18 months could more generally be taken into account as part of the 'intuitive synthesis'. It is clear from the above sentencing remarks, however, that her Honour rightly refused to act upon the submission that an actual mathematical deduction of the balance of the parole sentence from the non-parole period was required.

33 The above sentencing remarks indicate that her Honour did not correctly apply the principle of totality. First, under the principle it is the length of the parole sentence, not the original maximum sentence of 4 years, that was to be taken into account.[31] Secondly, it was necessary to take into account the entire parole sentence of more than 18 months, not merely the 7 months yet to be served. Thirdly, it was the effect of the parole sentence on the head sentence as well as the non-parole period that was relevant.

34 The sentencing judge was faced with a very difficult sentencing exercise because of the appellant's separate serious offending whilst on parole. As the counts constituted discrete criminal acts, it was necessary for the sentencing judge to make orders for cumulation. However, the principle of totality required either some moderation of the base sentence, or greater moderation of the orders for cumulation, or both, so as to produce a total effective sentence which, coupled with the parole sentence, did not offend the principle of totality and was sensitive to the legislative policy of s 16(3B).

35 We also consider there is force in the appellant's contention that, because the sentence on charge 1 was fixed by using the co-offender's s 6AAA declared sentence as the benchmark, it does not appear that the sentence on the charge of armed robbery, being the base sentence, was moderated to accommodate the principle of totality.

36 We would therefore allow the appeal and re-sentence the appellant on the charge of armed robbery to 7 years and 6 months' imprisonment. We would order cumulation of 5 months on the charge of unlawful possession of a firearm. We otherwise confirm all of the sentences and orders made below, so as to produce a total effective sentence of 8 years and 3 months. We would fix a non-parole period of 6 years.

[1] Contrary to s 5(1A) of the Firearms Act 1996.

[2] Contrary to s 88(1) of the Crimes Act 1958 (Vic).

Poisons and Controlled Substances Act 1981

Waugh v The Queen [2013] VSCA 36

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Judgment (60 paragraphs)

Waugh v The Queen [2013] VSCA 36 (1 March 2013)

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