SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Ghoubriel v The QueenCitation: / [2016] ACTCA66
Hearing Date: / 10 November 2016
DecisionDate: / 5 December 2016
Before: / Penfold, Elkaim, North JJ
Decision: / See paragraph [87] below.
Catchwords: / APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – obtain property by deception offences – whether the sentencing judge erred in applying the principle of totality – whether the absence of any degree of concurrency of the sentences has produced the error of a manifestly excessive sentence – whether sentence was manifestly excessive.
Legislation Cited: / Criminal Code 2002 (ACT), s 326
Cases Cited: /
Dinsdale v The Queen[2000] HCA 54; 202 CLR 321
Mill v The Queen [1988] HCA 70; 166 CLR 59
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Reid [2016] ACTSC 24
R v Wheeler [2000] NSWCCA 34
The Queen v TW [2011] ACTCA 25; 6 ACTLR 18
The Queen v Williams[2014] ACTCA 30
Truong v R;R v Le;Nguyen v R;R v Nguyen[2013] NSWCCA 36
Zradkovic v The Queen [2016] ACTCA 53Texts Cited: / D A Thomas, Principles of Sentencing – The Sentencing Policy of the Court of Criminal Appeal Division – 2nd edition (Heinemann Educational Books Ltd, 2nd ed, 1979)
Parties: / George Ghoubriel (Appellant)
The Queen (Respondent)
Representation: / Counsel
Mr J Lawton (Appellant)
Ms M Jones (Respondent)
Solicitors
Sharman Robertson Solicitors (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / ACTCA1 of 2016
Decision under appeal: / Court:Supreme Court of the ACT
Before:Robinson AJ
Date of Decision:16 December 2015
Case Title:The Queen v Ghoubriel
Court File Number:SCC 185A/14
Penfold J:
Introduction
1.I have had the benefit of reading in draft the judgment of Elkaim and North JJ. I agree with their Honours that the appeal should be upheld. However, I have reached the same conclusions as their Honours for slightly different reasons, and have a slightly different view on the appropriate replacement sentence.
2.I have not re-stated background information about this matter that is set out in the judgment of Elkaim and North JJ.
Appeal grounds
3.The two appeal grounds identified on behalf of the appellant were:
(i)That the Acting Justice erred when applying the principle of totality, namely only 2 days of concurrency with respect to all counts, such that the total aggregate sentence imposed was not just and appropriate and is manifestly excessive.
(ii)The sentence imposed by the Acting Justice on Count 3 was manifestly excessive.
4.Appeal ground (i) appears to confuse two different kinds of appeal grounds, being a ground asserting specific error by the primary judge, and a ground asserting that the total sentence is manifestly excessive. As for appeal ground (ii), it seems highly likely that if the sentence on Count 3 had been largely or entirely concurrent with another sentence, there would have been no complaint about it.
5.In truth it seems that the real basis for this appeal was that the appellant could not understand how, or perhaps why, the primary judge structured the sentence as he did.
General comments
6.The appellant relied on O’Brien v The Queen [2015] ACTCA 47 (O’Brien), in which the Court of Appeal (Murrell CJ, Wigney J and Walmsley AJ) said:
25. The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
(a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen(2000) 202 CLR 321 (Dinsdale).
(b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen[2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen(2014) 253 CLR 58 at [61].
(c) In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].
(d) It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen(2005) 228 CLR 357 at [28]; R v Abbott(2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen[2012] ACTCA 26 at [61].
7.In The Queen v Williams[2014] ACTCA 30, the Court of Appeal (Refshauge, Penfold and Gilmour JJ) made lengthy comments about the “manifest inadequacy” ground argued by the Crown in that appeal. After addressing (and rejecting) Crown submissions to the effect that manifest inadequacy or manifest excess may be established by pointing to errors made by the sentencing judge, the Court referred to the decision of the High Court in Bugmy v The Queen(2013) 302 ALR 192, saying:
13.... at [24], [the plurality] went on:
Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. [citations omitted]
14.The plurality in fact made it clear that within a range of sentences for the offence, the weight to be given to evidence and to the various purposes of sentencing is a matter for the sentencing judge, and emphasised that the Court of Appeal was not empowered to impose a new sentence because it would have weighted different considerations differently. It was only empowered to do so if the Court of Appeal was satisfied that the discretion had miscarried because in the result, the sentencing judge imposed a sentence that was below the just range of sentences. The statements by the plurality in our view specifically disclaim that the other grounds of appeal were “particulars” of manifest inadequacy to the extent that they identified errors made by the sentencing judge, as distinct from identifying matters that were relevant in the sentencing decision and that pointed to the sentence actually imposed being below the just range of sentences.
15.Gageler J said at [53]:
The Director’s three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.
16.His Honour noted that the appeal ground complaining about weight pointed at most to a circumstance which might be indicative of error in the second category referred to in House v The King (1936) 55 CLR 499 (House). His Honour did not suggest that the appeal ground concerned pointed to an error which might have caused the manifest inadequacy said to permit an inference of error.
17.The point made by the Court of Appeal in R vAng was that, while particular aspects of the circumstances of the offence or the offender, or other applicable sentencing considerations, might be relevant to establish manifest inadequacy or manifest excess, they were not relevant as indications of the nature of the inferred error made by the sentencing judge, but as circumstances by reason of which the ultimate sentence might have been expected to be significantly higher or lower (see R v Ang at [22] to [25]).
18.In any event, it is not possible to assess, from a sentence which has been set following the instinctive synthesis that is required, what weight has been given to particular elements so as to determine that too littleor too much weight has been given to any particular factor, unless the sentencing judge specifically says what weight has been given to it. This was not the case here, where the Crown did not identify any such remarks by the Chief Justice. As is made clear in House, any such errors can only be inferred, without being identified, by showing that the result is manifestly inadequate (or excessive).
19.Indeed, once it is conceded, as it was by the Crown at the hearing, that an error as to weight is not an error of the first kind described in House, which may permit re-sentencing even in the absence of manifest inadequacy or excess, then the sentencing judge’s alleged errors or considerations become irrelevant; what remains relevant is the matters that he or she was required to consider and the level of sentence that those matters could reasonably have been expected to produce.
8.That is, the sentences imposed by the primary judge in this case were either manifestly excessive, or they were not. Nothing is to be gained by suggesting that the sentences were, or that the total sentence was, manifestly excessive because the sentencing judge erred in applying the totality principle.
9.Furthermore, a breach of the totality principle is difficult to establish, either as a specific error or as the source of manifest excess or inadequacy, because there will always be a variety of ways in which multiple sentences can be structured to reach an appropriate result, that is, one that is neither manifestly excessive nor manifestly inadequate. Two examples will suffice.
10.In O’Brien, the Court said:
26. The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill [v the Queen [1988] HCA 70; 166 CLR 59]at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler[2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight(2005) 155 A Crim R 252 at [112]; R v MAK(2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen(2007) 168 A Crim R 41 at [27].
11.The Court in O’Brien rejected the appellant’s argument that although none of the individual sentences imposed on him was excessive, the aggregate sentence was excessive. The Court also declined to find that the primary judge had “erred in principle, either in relation to making the incident 2 sentences wholly cumulative on the incident 1 sentences or otherwise”. The appeal was accordingly dismissed
12.In The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 (TW), the Court of Appeal by majority (Refshauge and Lander JJ) upheld a Crown appeal against sentences imposed for 13 different offences, re-sentencing the respondent to increase his total sentence from imprisonment for seven years to imprisonment for nine years and seven months. The appeal was argued on the grounds that “the sentences were manifestly inadequate and that his Honour erred in making certain of the sentences wholly concurrent” (at [2]).
13.The majority concluded that the sentencing judge had fallen into error by determining the total sentence before his Honour determined the question of cumulation or concurrency (Refshauge J at [62] and [63]; Lander J at [125]). Lander J also found that the individual sentences were manifestly inadequate (at [124]), referring to the reasons given by Refshauge J, although it is not clear to me that Refshauge J in fact reached that latter conclusion.
14.In dissent as to the result in that case, I said:
83. Given the application of the totality principle discussed below, it is not in my view possible to say in the abstract that any aspect of NieldAJ’s approach to concurrency and accumulation was necessarily erroneous. Even more so than for most other claims of specific error, a claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise. In Markarian v The Queen 228CLR357at[27], the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) noted more generally that:
[T]here is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. (citations omitted)
...
85.The appellant’s claim that the sentences included some inappropriate concurrency implies that the totality principle was not applied properly; this is probably how the concurrency ground of appeal should have been formulated.
86.The classic statement of the totality principle from Mill v The Queen (1988) 166CLR59 (Mill) is set out in Refshauge J’s judgment at [62] above. Counsel for the appellant also referred to the requirement for a sentencing judge to fix an appropriate sentence for each offence before considering accumulation, concurrency and totality (Pearce v The Queen (1998) 194CLR610 at [45]), and the need to ensure that the totality principle is not applied so as to allow some of multiple discrete offences, in effect, to go unpunished in the sense that they add no further period to the total sentence (R v Wheeler [2000] NSWCCA 34 at [37], quoted at [50] above).
87.My understanding of how the totality principle as set out in Mill is to be applied is that the sentencing court should first decide on the appropriate sentence for each offence and identify the appropriate degree of concurrency or accumulation having regard to the relationship between the various offences. That combination of sentences and how they are to run will produce a head sentence, which the court must then “take a last look at ... just to see whether it looks wrong”, by reference to the totality of the criminal behaviour and the court’s assessment of “the appropriate sentence for all the offences”.
88.Where the preliminary formulation of the sentence needs to be adjusted in order to achieve what seems to be the appropriate total sentence, this can be done by increasing the concurrency of the various sentences or by reducing individual sentences.
89.The High Court in Mill indicated that increased concurrency is generally to be preferred to reducing individual sentences. Among other things the former approach makes the individual sentences more useful in contributing to the establishment of the range of appropriate sentences for offences of the relevant kind (as mentioned below, a particular issue in a small jurisdiction such as the ACT).
90.I am not convinced that the Mill adjustment process needs to be exposed at any level of detail by a judicial officer in the course of imposing sentence. The individual sentences for each offence will in any case need to be specified. Anything odd about the sentence, such as an unusually high degree of concurrency or of accumulation in respect of any particular offences, might need to be explained, for instance by reference to the impact of the totality principle or to the seriousness of the offences. The final total sentence can be assumed to reflect the judicial officer’s view of the appropriate total sentence having regard to the totality of the criminal behaviour, ...
91.I do not see, however, that the judicial officer needs to spell out his or her “first draft” of concurrency and accumulation in any great detail. Apart from anything else, it will be apparent to a judicial officer with any capacity for mental arithmetic where a particular set of individual sentences is leading him or her, and that result can be adjusted in the course of refining the head sentence without ever having to record the original concurrency and accumulation, let alone all the permutations and combinations that might be “pencilled in” by the judicial officer before an apparently appropriate structure is arrived at.
92.Accordingly, I am not convinced that the process described by Nield AJ was erroneous to the extent that he revealed a process of setting individual sentences, identifying what he considered to be the appropriate total sentence, and then structuring the individual sentences to achieve that result; among other things, this appears to be the last stage of the process described in Mill, which requires the court not to just “[do] the arithmetic [produced by the initial structuring of a set of appropriate individual sentences] and [pass] the sentence which the arithmetic produces”, but to identify the appropriate sentence for the totality of the criminal behaviour and to implement that by adjusting the length of sentences or preferably levels of concurrency.