Jeitany v The Queen [2017] VSCA 296 (19 October 2017)

Last Updated: 20 October 2017

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0153

MICHAEL JEITANY	Applicant

V

THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 296
JUDGMENT APPEALED FROM:	[2017] VCC 678 (Judge Lawson)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Theft – Attempted burglary – Burglary – Attempted theft – Armed robbery - Reckless conduct endangering persons – Dangerous or negligent driving while pursued by police – Possessing drug of dependence – Two summary charges – Sentence of 7 years and 4 months’ imprisonment with non-parole period of 4 years and 6 months – Role of applicant in armed robbery – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors

On the papers

SANTAMARIA JA:

1 The applicant, now aged 27, pleaded guilty to two charges of theft, one charge of attempted burglary, two charges of burglary, one charge of attempted theft, one charge of armed robbery, one charge of reckless conduct endangering persons, one charge of dangerous or negligent driving while pursued by police, one charge of possessing a drug of dependence, namely methylamphetamine, and two summary charges. On 9 June 2017, he was sentenced in the County Court as follows:

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
1	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	1 year and 6 months’ imprisonment	3 months
2	Attempted burglary [Crimes Act 1958 ss 76(1) and 321M]	5 years’ imprisonment	2 years’ imprisonment	6 months
3	Burglary [Crimes Act 1958 s 76(1)]	10 years’ imprisonment	3 years and 6 months’ imprisonment	1 year
4	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	1 year and 6 months’ imprisonment	Nil
5	Burglary [Crimes Act 1958 s 76(1)]	10 years’ imprisonment	3 years and 6 months’ imprisonment	6 months
6	Attempted theft [Crimes Act 1958 ss 74(1) and 321M]	5 years’ imprisonment	1 year imprisonment	Nil
7	Armed robbery [Crimes Act 1958 s 75A(1)]	25 years’ imprisonment	4 years’ imprisonment	Base
8	Conduct endangering persons [Crimes Act 1958 s 23]	5 years’ imprisonment	2 years’ imprisonment	6 months
9	Dangerous or negligent driving while pursued by police [Crimes Act 1958 s 319AA]	3 years’ imprisonment	1 year imprisonment	6 months
10	Possess drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73]	30 penalty units or 1 year imprisonment or both	3 months’ imprisonment	Nil
Summary charges
20	Commit indictable offence whilst on bail [Bail Act 1977 s 30B]	30 penalty units or 3 months’ imprisonment	2 months’ imprisonment	1 month
21	State false name to police [Crimes Act 1958 s 456AA(1)]	5 penalty units	$250 fine	N/A
Total effective sentence:		7 years and 4 months’ imprisonment
Non-parole period:		4 years and 6 months’ imprisonment
Pre-sentence detention declaration		338 days^[1]
Section 6AAA Statement		9 years and 4 months’ imprisonment with non-parole period of 6 years and 6 months’ imprisonment
Other relevant orders		On Charge 9, order that the offender be disqualified from obtaining any licence or permit for a period of 3 years from 9 June 2017 (pursuant to Sentencing Act 1991 s 89(3)(a)).

2 The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

3 The offending involved the commission of a number of crimes in the early hours of 2 June 2016 by the applicant and four co-accused. They committed or attempted to commit a series of burglaries on commercial premises located at shopping centres in Gladstone Park, Broadmeadows and Roxburgh Park with the aim of stealing large quantities of cigarettes. They had in their possession a demolition saw, two black and white doona covers and a jemmy bar. At different stages during the offending, one or more of them also had in their possession a baseball bat and sledgehammers.

Charge 1 of theft: the stolen Mercedes Benz

4 During the offending, the applicant drove a Mercedes Benz motor vehicle that had been stolen from residential premises in the northern suburbs of Melbourne in the days preceding the offending. The applicant’s use of the vehicle in the course of the offending gave rise to the first charge on the indictment (charge 1 of theft). A second Mercedes Benz that had also been stolen in the days preceding the offence was driven by one of the applicant’s co-accused in the course of the offending.

Charge 2 of attempted burglary: Gladstone Park Shopping Centre

5 On 2 June 2016 at about 2:05 am, the applicant and his four co-accused, travelling in the two stolen Mercedes Benz vehicles, arrived at the Gladstone Park Shopping Centre with the intention to enter the Tobacco Station Group (‘TSG’) store to steal cigarettes. They had initially attempted to gain access to the store via the office of a real estate agency that was connected to the shopping centre. They smashed the front door of that office, which was located on an external boundary of the shopping centre, and, once inside, attempted to access the shopping centre itself. But, they were unable to do so. They went to the glass shopping centre doors and smashed an external glass door which gave them access to the centre.

6 Once inside the centre, the applicant and his four co-accused approached the TSG store. The store was secured by a locked roller door. They unsuccessfully sought to gain access by kicking the roller door forcefully a number of times. That caused stock to fall from the shelves, causing damage to the stock and fittings within the store. One or more of the co-accused then used a jemmy bar and demolition saw in an attempt to remove the padlocks that secured the roller door. Again, they were unsuccessful in their efforts. After about five minutes, the applicant and the four co-accused fled the shopping centre, returned to their vehicles and left the premises at about 2:11 am.

Charge 3 of burglary and charge 4 of theft: Broadmeadows Shopping Centre

7 At about 2:14 am, the applicant and his four co-accused, travelling in convoy, arrived at the Broadmeadows Shopping Centre. They accessed the centre by smashing an external glass door and unlocking it.

8 Once inside the centre, they approached the TSG store. On that occasion, they were able to force open the roller door, enter the store and force open locked cigarette cabinets. They filled each of the doona covers in their possession with a number of cigarette packets, the total value of which was $18,401.62. At 2:17 am, they left the store and returned to the vehicles.

9 Later, when they processed the crime scene, police found some blood on the inside of a cigarette cabinet. The blood sample was analysed and determined to be blood that came from the applicant.

Charge 5 of burglary and charge 6 of attempted theft: Roxburgh Park Shopping Centre

10 At about 2:23 am, the applicant and his four co-accused arrived at Roxburgh Park Shopping Centre. Inside the centre, they entered the Cignall Specialist Tobacconist store by cutting the locks to the front door of the store and forcefully kicking and pulling a security roller door.

11 Once inside the store, they knocked over display stands and knocked stock off shelves. They attempted to prise open the cigarette cabinets, which were protected by a security grill, but were unsuccessful. At about 2:26 am, they left the store and returned to the vehicles.

Charge 8 of reckless conduct endangering persons

12 At about 2:35 am, police observed the two stolen vehicles to be travelling southbound on Pascoe Vale Road, Broadmeadows, at a fast rate of speed and clearly in excess of the posted speed limit.

13 At about 2:40 am, police also observed the two vehicles entering the Western Ring Road via the Sydney Road ramp in Campbellfield. Each vehicle was stationary on the on-ramp for a short time before performing an unlawful U-turn. The vehicles then drove in convoy westbound in the eastbound lanes. As a result, eastbound oncoming traffic was forced to take evasive action in order to prevent a head-on collision. The vehicles continued to travel eastbound at a fast rate of speed before taking the Edgars Road exit.

14 At about 2:48 am, a traffic camera detected the two vehicles travelling in convoy south on Sydney Road in Campbellfield at the intersection with Barry Road. The applicant was driving one of the vehicles, which was detected by the traffic camera to be travelling at 163 kilometres per hour, in excess of the posted speed limit of 80 kilometres per hour. The other stolen vehicle was travelling at 153 kilometres per hour.

15 At about 2:49 am, the vehicle being driven by the applicant was detected by a red light camera travelling southbound on Pascoe Vale Road at the intersection with Reservoir Road in Coolaroo. The vehicle failed to stop at a red light at the intersection. At the time that the applicant drove through the intersection, the light applicable to him had been red for 7.6 seconds.

Charge 9 of dangerous or negligent driving while pursued by police

16 At about 2:51 am, the Victoria Police Air Wing commenced a pursuit of the two stolen vehicles. While under observation and pursuit, both vehicles were observed to have travelled at excessive speeds through residential streets. At various times, each vehicle failed to obey red lights, drove on the wrong side of the road and placed other road users in danger of serious injury.

17 At about 3:00 am, police deployed ‘stop sticks’ at Ascot Vale Road, Moonee Ponds. The stolen vehicle being driven by the applicant ran over the stop sticks, which became entangled underneath the vehicle and deflated the tyres. The applicant then drove into nearby Sydenham Street, where he left the immobilised vehicle that he had been driving and joined his four co-accused as a passenger in the other stolen vehicle. The applicant and his four co-accused fled the scene.

18 Police secured the stolen vehicle that had been driven by the applicant and located a doona cover that contained 475 assorted packets of cigarettes. The applicant’s blood was located on the driver’s side window and door.

Charge 7 of armed robbery

19 The applicant and his co-accused drove towards the Melbourne CBD in the second stolen vehicle at a fast rate of speed, disobeying red traffic lights and driving on the wrong side of the road. The vehicle continued to be monitored by the Victoria Police Air Wing.

20 At about 3:23 am, the vehicle travelled east over the West Gate Bridge at approximately 130 kilometres per hour and continued into the CBD.

21 At about 3:28 am, a man named Daniel Mandiuc was seated in the driver’s seat of his red Holden Commodore in Collins Street, Melbourne. The vehicle being driven by one of the applicant’s co-accused pulled up alongside his vehicle.

22 I interpolate that the series of events that took place from this point in time is the subject of the first proposed ground of appeal. It is necessary, therefore, to compare the events recounted in the summary of prosecution opening with those recounted by the sentencing judge.

23 According to the summary of prosecution opening, after the vehicle being driven by one of the applicant’s co-accused pulled up alongside Mr Mandiuc’s vehicle, the following events occurred:

The front seat passenger from the Mercedes got out and approached Mr Mandiuc armed with a sledgehammer and made demands for him to ‘get out, get out now!’
A second passenger from the Mercedes got out armed with a sledgehammer and joined in making demands for Mr Mandiuc to turn over his vehicle to them.
As Mr Mandiuc got out of his car and began to comply with those demands [the applicant] got out of the stolen Mercedes armed with a baseball bat and yelled for the victim to ‘get out of here!’ [The applicant] and the two other co-accused from the Mercedes armed with sledgehammers all then entered the red Commodore and drove it away in convoy with the stolen Mercedes ... Both vehicles drove away from the scene at a fast rate of speed along Collins Street in the direction of Spencer Street.

24 The sentencing judge described the events recounted above as follows:

Your group pulled up alongside his vehicle, you got out of the front passenger door and approached him, armed with a sledgehammer, and made demands for him to get out. You were joined by two other passengers from the Mercedes who were also armed with a baseball bat and a sledgehammer. Following threats and demands made by you, Mr Mandiuc alighted from his vehicle. You and your co-accused then entered the red Commodore and drove it away in convoy with the other stolen Mercedes vehicle at a fast rate of speed. And that is the armed robbery, Charge 7 on the indictment.^[2]

25 It is to be observed that the summary of prosecution opening makes it plain that: (a) two of the co-accused, each armed with a sledgehammer, left the stolen vehicle and demanded that Mr Mandiuc get out of his vehicle; (b) the applicant was the third member of the group to leave the stolen vehicle and demand that Mr Mandiuc get out of his vehicle; and (c) on that occasion, the applicant was armed with a baseball bat.

26 These events are to be compared with those set out in the remarks of the sentencing judge, who said that: (a) the applicant was armed with a sledgehammer; (b) the applicant was joined by two of the other co-accused, one of whom was armed with a baseball bat and the other sledgehammer; and (c) Mr Mandiuc left his vehicle following threats and demands made by the applicant.

27 I mention for completeness that the Commodore was kept under observation by the Victoria Police Air Wing until 3:50 am, when the pursuit ended due to concerns for public safety in view of the erratic and dangerous nature of the driving. At 6:07 am, the Commodore was found abandoned on High Street, Glen Iris, with its doors open and the engine running.

Summary charge of stating false name to police

28 Information held by police revealed the identity and address of one of the co-accused. Police attended that address and located some of the applicant and some of the co-accused. When asked to provide his personal details, the applicant gave the name of his brother, Wayne Jeitany. The applicant said that, on the night of the offending, he had been gambling at Crown Casino all night and did not know the other co-accused, who, he said, were friends of his cousin.

Summary charge of committing indictable offence whilst on bail

29 During the offending, the applicant was on three undertakings of bail and was subject to curfew conditions requiring him to be present at his place of residence between the hours of 9:00 pm and 6:00 am. The applicant had given one undertaking of bail at Broadmeadows Magistrates’ Court on 1 June 2016, the day before the offending the subject of charge 2 to charge 9 on the indictment took place.

Charge 10 of possessing drug of dependence

30 On 6 July 2016, police executed simultaneous search warrants at the residential premises of each of the applicant and his co-accused.

31 At the applicant’s premises, police found a number of zip lock bags containing small quantities of methamphetamine. In his remarks, the sentencing judge accepted that the drug was for personal use only.^[3]

32 The applicant was arrested and later interviewed at Broadmeadows Police Station. He broadly denied any involvement in the offending and provided no comment when the substantive allegations were put to him by police.

33 Each of the other co-accused pleaded not guilty, and each has been committed to stand trial, commencing on 23 October 2017.

Personal circumstances of the applicant

34 The applicant was 26 at the time of the offending. He was born in Melbourne. He is of Lebanese background and has a large support network. He has two brothers and two half-siblings. He is a single man with no dependents.

35 The applicant’s parents separated when he was three years old. Their separation was described as difficult and acrimonious, and it involved litigation in the Family Court of Australia. Following the separation, the applicant lived initially with his mother and brothers until the age of 11, when he went into the care of his father, with whom he continued to live until the time of his remand. The applicant’s parents have no relationship; however, they remain supportive of the applicant.

36 The applicant struggled both academically and behaviourally at school. He was expelled from a number of high schools and apparently left school early. The applicant was enrolled at the Broadmeadows TAFE to undertake an IT course, but left after a few months. He then enrolled in a TAFE course at RMIT University, where he undertook a year-long applied maintenance course. Halfway through that course, he dropped out, saying that he was under too much pressure.

37 The applicant worked with his father, a painter by trade, since he was very young. In 2010, he applied to join the army; however, he was unsuccessful because did not meet the academic requirements. He also worked as a contractor for six months in 2016.

38 The applicant is generally of good health. While in prison, he was diagnosed with asthma and uses Ventolin as required. The sentencing judge said that the applicant’s time in prison has been difficult. The applicant had been the subject of some abuse while in prison because of his Lebanese background and the fact that he is Catholic; he had been targeted due to his religious beliefs by others of Lebanese background.

39 The applicant has a longstanding history of drug abuse. He started using cannabis at the age of 15 and had been using up to one gram per day until his remand. He had used ecstasy during his teenage years and started using methamphetamines at the age of 17 or 18, which continued until his arrest. He had used also used cocaine and GHB since the age of 22. On one occasion, sometime in 2015, he was hospitalised due to a GHB overdose.

40 A report prepared by Ms Gina Cidoni, consultant psychologist, said that the applicant had a full scale IQ of 72, which was described as ‘borderline’. Ms Cidoni considered the applicant to be a person who indicates a distinct manic trait, anti-social traits and mild psychosis that is most likely to be drug-induced. Ms Cidoni assessed the applicant’s anxiety levels to be high and said that that is likely to be exacerbated by being in prison for the first time and being unable to rely on drugs to cope. Ms Cidoni otherwise noted that the applicant was having difficulty in prison and considered him to be at risk of further emotional and behavioural deterioration with risk of further abuse.

Sentencing remarks

41 The sentencing judge first considered the objective gravity of the offending. She said that the offences committed by the applicant were serious and noted that the applicant was under the influence of the drug ice at the time of the offending. The judge said that the burglaries, attempted burglaries and associated thefts and attempted theft are serious examples of this kind of offending. The judge said that, given the manner of execution of the offences, the applicant was ‘part of a well-orchestrated and well-planned professional operation that had given consideration to the locations of the targeted cigarette shops [and] the timing of the robberies so as to minimise the prospect of detention’.^[4] The judge also observed that the applicant and the co-accused had stolen two vehicles to further facilitate the commission of the offences. She was satisfied that the applicant was not the instigator of the planned series of offences but that he nonetheless ‘played a significant role’.^[5]

42 The sentencing judge considered the armed robbery ‘to be the most serious’ of the applicant’s criminal behaviour.^[6] She said:

This is a very serious example of armed robbery given that it was committed in company and it would have been extremely terrifying for the owner of the Commodore to have been confronted by your collective threatening and aggressive demands for his vehicle, in the circumstances where it was in the early hours of the morning, in the Melbourne CBD with there being no others around to assist him.
There is a need to deter like-minded people from engaging in such activity. Drivers are entitled to feel safe and secure when driving in a public place ...^[7]

43 The sentencing judge said that the applicant’s manner of driving concerning charge 8 and charge 9 ‘demonstrates a real disregard for the personal safety of other road users’.^[8] It was driving that could have resulted in ‘catastrophic consequences’, and ‘[i]t is more by good fortune that no one was hurt’.^[9]

44 The sentencing judge also had regard to the applicant’s prior criminal history. She said:

You admitted your prior criminal history. You do not come before the court as a person of prior good character. You have a significant and relevant prior criminal history. You have court appearances that span the period from 3 April 2009 to 6 June 2006. All up, there were eight court attendances. You have relevant driving convictions, convictions for crimes of violence such as unlawful assault, you have convictions for burglary and theft, for robbery, recklessly cause injury and drug-related offences.
In the past, courts have provided to you a variety of dispositions including fines, community-based orders, community correction order, wholly suspended prison sentences. You breached the community-based order, you breached the community correction order and you breached the suspended sentence. A degree of leniency has been shown to you in the past by courts however, you have not in the past taken up the opportunity to reform.^[10]

45 The sentencing judge addressed the principles of general deterrence and specific deterrence as follows:

The nature of your offending being committed in company with others means that the principles of general and specific deterrence assumes real importance.
Denunciation and the need to protect the community looms large in respect to this sort of anarchical criminal behaviour. The community is entitled to be outraged by such offending.^[11]

46 The sentencing judge also referred to one victim impact statement made by the owner of the Cignall Specialist Tobacconist store at Roxburgh Park Shopping Centre. The owner said that he has been mentally scarred as a result of the applicant’s actions and that his business might close for good.^[12] The judge continued:

There are no other victim impact statements filed but having regard to the nature of the offending, I consider that it would have been a terrifying experience for the owner of the Commodore to be confronted by three men with threats of violence and I have taken that into consideration.^[13]

47 During the plea, counsel for the applicant said that the applicant has had time to reflect on his behaviour and that the applicant has insight into the impact of his behaviour on others and the impact of drugs on the applicant generally.^[14] The sentencing judge concluded that, while he was not the instigator, the applicant ‘played an active and significant role in the execution of this very serious offending’ and will be sentenced on that basis.^[15] The judge said that she had regard to the findings of Ms Cidoni but said that those findings in no way excused the applicant’s behaviour.^[16]

48 The sentencing judge said that the applicant will be given a full discount for his early plea of guilty, which, in the judge’s view, represented ‘an acceptance of responsibility and is demonstrative of some remorse’.^[17]

49 In terms of rehabilitation, the sentencing judge had regard to a number of letters that were tendered from family members, all of whom had attested to the applicant demonstrating a different side to his personality than that reflected by his offending.^[18] The judge turned to the applicant’s drug use and considered that the applicant has ‘been successful in beginning to come to terms with addressing [his] underlying drug addiction’.^[19] She had regard to the results of drug testing and the fact that the applicant completed some courses in custody. Having considered the applicant’s behaviour to be ‘indicative of genuine remorse’ and as providing ‘some evidence of his rehabilitation prospects’,^[20] the judge added:

I consider that you now do have genuine insight into the impact of drug use upon both you and your family and the community generally and the victims. I have had regard to the letter you wrote to the court. You, in no way, seek to excuse yourself for the way in which you acted, and you expressed your remorse. You also feel so low that you wish you could give everything back.
You apologise to those who were on the road when you were driving irresponsibly. You acknowledge that you could have hurt and killed or seriously hurt somebody and you state you are truly sorry for what you have done. You say that you have now come to your senses and you wish to have a drug-free, crime-free lifestyle in the future.
Overall, I am optimistically guarded about your prospects for rehabilitation. Ultimately, your rehabilitation will be dependent upon you maintaining your expressed commitment to total abstinence in the future and being able to resist falling back into drug taking habits upon your eventual release.
Nonetheless, your current behaviour does reflect some optimism of your prospects for rehabilitation going forward. You are still a relatively young man and your rehabilitation is very important for both your own future and also ultimately for the protection of the community.^[21]

50 The sentencing judge said that, in sentencing the applicant, she ‘must have regard to the circumstances of the offending, the gravity of [his] offending and the personal factors put in mitigation’.^[22] The judge also had regard to the principles of totality, in respect of which she said:

I must evaluate the overall criminality involved in all the offending with which you are charged, and must adjust the length of the sentence to achieve an appropriate relativity between the totality of the criminality from the totality of the sentence. I must ensure that the aggregation of the sentences is appropriate for each offence and is a just and appropriate measure for the totality of the criminality involved.^[23]

51 The sentencing judge concluded:

Overall, I have taken into account that you were an active and willing participant who undertook a significant role in the execution of the commission of these serious offences. It was lawless behaviour in the extreme and as you have expressed, it potentially exposed members of the community to the real risk of harm. On behalf of the community, I must formally denounce your conduct.
I have had regard to current sentencing practices and I have further had regard to the gravity of your offending to your personal circumstances. Weighing all the considerations I must take into account, I am of the view that the appropriate sentence is a term of imprisonment with a non-parole period of the length I am about to impose. The non-parole period is shorter than it would have otherwise been because of your real efforts towards and prospects of rehabilitation.^[24]

Proposed grounds of appeal

52 The applicant has proposed the following two grounds of appeal:

Ground 1
The sentencing judge erred by sentencing the applicant (on charge 7, the charge of armed robbery) on the basis that he himself:
(a) approached the victim whilst armed with a sledgehammer; and
(b) made demands for the victim to get out of his vehicle.
Particulars
(i) One of the applicant’s co-offenders, not the applicant himself, approached the victim whilst armed with a sledgehammer and made demands for the victim to get out of his vehicle.
(ii) As the victim got out of his car and began to comply with the demands made, the applicant got out of the vehicle that he had been in and yelled for the victim to ‘get out of here’.
(iii) There is a material difference between the offending committed by the applicant and the erroneous basis on which he was sentenced.
Ground 2
The:
(a) sentences imposed on each of charges 1 to 10 (inclusive);
(b) orders for cumulation made on each of charges 1, 2, 3, 5, 8 and 9;
(c) sentence imposed and order for cumulation made on the summary charge of committing an indictable offence whilst on bail;
(d) total effective sentence imposed; and
(e) non-parole period fixed;
are all manifestly excessive.
Particulars
(i) The sentences imposed are manifestly too long.
(ii) The sentencing judge gave manifestly insufficient weight to the applicant’s early pleas of guilty, his genuine remorse, his prospects for (and efforts towards) rehabilitation, his borderline intellectual capacity, the difficulties that he is having in coping in prison, the principle of totality and current sentencing practices.
(iii) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.

The applicant’s submissions

53 The circumstances which are relevant to the applicant’s first proposed ground of appeal are set out above.^[25] The applicant contends that he was sentenced on the basis that he was the principal offender who had committed the offence that was, in fact, committed by his co-accused (the front seat passenger). According to the applicant, the sentencing judge’s finding in this respect was a material error. It was relevant to the assessment of the objective gravity of the offending committed by the applicant in relation to charge 7 and his culpability for that offending. In turn, says the applicant, it was relevant to the weight to be given to various sentencing principles, including deterrence and denunciation.

54 In relation to the proposed ground of manifest excess, the applicant cites various findings in the report of Ms Cidoni as mitigating factors, including that:

(a) he is ‘an anxious man with a very simple disposition’;

(b) he ‘has difficulties coping with the everyday demands of life and a lack of psychological resources for coping with stress’;

(c) he ‘presents with borderline intellectual capacity (IQ 72), just three points above the very impaired range, where his attention and concentration is poor with slower response rates, [disorganisation], naïveté and reduced common sense in situations’; and

(d) he ‘struggled both academically and behaviourally at school’.

55 The applicant also contends that, although not a mitigating circumstance, his involvement in the offending was explained by the fact that he ‘was under the influence of ice and GHB when he committed the offences’, which impaired his judgment and ability to think clearly.

56 The applicant also draws attention to the fact that he had pleaded guilty at an early stage and that his pleas were accompanied by genuine remorse. The applicant contends that the imposition of ‘such severe sentences’ and ‘such significant orders for cumulation’ was unreasonable and plainly unjust. He also points to the following factors:

(a) the offending the subject of charges 1 to 9 was committed within less than 90 minutes: according to the applicant, ‘the totality principle had significant work to do’;

(b) the applicant had not previously served a gaol sentence and was ‘having difficulty coping in prison’, being ‘at risk of further emotional and behavioural deterioration’ and ‘targeted due to his religious beliefs while in custody’: he said that he was a man who would find it more difficult than other prisoners to serve a long time in prison;

(c) the applicant was not the instigator of the offending and he was not involved in the organisation of the offending: his role, while significant, was distinguishable from that of an offender involved in the planning, organisation and commission of such offending;

(d) there were reasons to be optimistic about the applicant’s prospects for rehabilitation, including his large support network and insight into the impact of his behaviour, plea of guilty, remorse and desire to cease using illicit drugs; and

(e) the sentences imposed on the charges of burglary (charge 3 and charge 5) are almost three times the median sentence imposed for burglary in the higher courts between 2010–11 and 2014–15, and the sentences imposed on charge 2 and charge 8 constituted 40 per cent of the maximum penalty that applied to those charges.^[26]

57 In the event, the applicant contends that his ‘is one of those rare cases in which the sentences imposed stand out as being so severe as to be wholly outside the range of sentences that were open to be imposed’.

Analysis

58 In his submissions on the first proposed ground of appeal, the applicant points to the discrepancy between the circumstances of his offending set out in the summary of prosecution opening and those set out in the sentencing judge’s remarks. There is indeed a discrepancy between the two accounts: in the former, the applicant (armed with a baseball bat) joins two of his co-accused (each of whom was armed with a sledgehammer) in demanding that Mr Mandiuc get out of his vehicle; in the latter, the applicant (armed with a sledgehammer) is the first to demand that Mr Mandiuc get out of his vehicle shortly before he is joined by two of his co-accused (one armed with a sledgehammer and the other a baseball bat). Notably, the sentencing judge considered the armed robbery ‘to be the most serious’ of the applicant’s criminal behaviour.^[27] She elaborated:

This is a very serious example of armed robbery given that it was committed in company and it would have been extremely terrifying for the owner of the Commodore to have been confronted by your collective threatening and aggressive demands for his vehicle, in the circumstances where it was in the early hours of the morning, in the Melbourne CBD with there being no others around to assist him.
There is a need to deter like-minded people from engaging in such activity. Drivers are entitled to feel safe and secure when driving in a public place ...^[28]

59 It is true that the sentencing judge incorrectly described the circumstances of the armed robbery committed by the applicant and two of his co-accused. However, in my opinion, it is not reasonably arguable that the misdescription was a material error. As the above passage makes clear, the sentencing judge drew attention specifically to the armed robbery being ‘committed in company’ and the terror for Mr Mandiuc to be confronted by the ‘collective threatening and aggressive demands’. Plainly, it was the commission of the armed robbery as a joint criminal enterprise that drove the sentencing judge to say what she said: the applicant and his co-accused were armed and, having participated in a joint criminal enterprise, each of them was liable for the acts of the other.^[29] While the applicant is entitled to be sentenced by reference to matters personal to himself, the sentencing judge’s earlier misdescription had no material impact upon the objective gravity of the armed robbery or the applicant’s moral culpability.

60 To establish the ground of manifest excess, the applicant must demonstrate that the sentences imposed by the sentencing judge were wholly outside the permissible ranges of reasonable sentences.^[30] The question is not whether some other sentence could have been imposed.^[31] As Maxwell ACJ observed in Kumar v The Queen:^[32]

[T]he ground of manifest excess is very difficult to establish. It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending. That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal. We intervene only where something is shown to have gone clearly or badly wrong.^[33]

61 In my opinion, the individual sentences imposed, the orders for cumulation and the total effective sentence and the non-parole period are well within the permissible ranges of reasonable sentences. As the sentencing judge observed, the offences on the indictment are all serious. The offending was also ‘part of a well-orchestrated and well-planned professional operation’ which targeted specific cigarette shops in the early hours of the morning so as to minimise the prospects of detection by the authorities.^[34] Whilst the sentencing judge accepted that the applicant was not the instigator, she said that he had played a significant role.^[35] His level of involvement calls for stern punishment.

62 The applicant has not suggested any specific error in support of his proposed ground of manifest excess.^[36] Instead, the applicant contends that there are a number of matters which, had they been properly considered, would not have resulted in a sentence that was outside the range of sentencing options available. I would reject that contention. The sentencing judge took into account the applicant’s early plea of guilty and the associated utilitarian benefit, acceptance of responsibility and indication of remorse. She also had regard to the personal factors put in mitigation on behalf the applicant, including his background and family support, the difficulties that he had faced whilst on remand and that he would face while serving his sentence, his history of drug abuse, his efforts towards rehabilitation and his ‘optimistically guarded’ prospects of rehabilitation that depended upon his maintaining a commitment to remain drug free, his insight and the contents of Ms Cidoni’s report. Counterbalancing these matters was the objective seriousness of the offending, the fact that the offending was committed in company (thereby elevating the importance of both specific and general deterrence), the applicant’s significant role in what was a professional criminal operation, the impact of the offending upon the victims, the applicant’s prior criminal history and the fact that the offending was committed in breach of three undertakings of bail, one of which the applicant had given at the Broadmeadows Magistrates’ Court the day before the offending the subject of charge 2 to charge 9 on the indictment took place.

Conclusion

63 I would refuse the application for leave to appeal against sentence.

^[1] The orders erroneously recorded the pre-sentence detention period to be 388 days. See DPP v Jeitany [2017] VCC 678 [86] (‘Sentencing remarks’).

^[2] Sentencing remarks [26].

^[3] Ibid [31].

^[4] Ibid [9], [36].

^[5] Ibid [36].

^[6] Ibid [37].

^[7] Ibid [37]–[38].

^[8] Ibid [39].

^[9] Ibid.

^[10] Ibid [4]–[5].

^[11] Ibid [40]–[41].

^[12] Ibid [42].

^[13] Ibid [43].

^[14] Ibid [57].

^[15] Ibid [59].

^[16] Ibid.

^[17] Ibid [60].

^[18] Ibid [61].

^[19] Ibid [63]–[64].

^[20] Ibid [64].

^[21] Ibid [65]–[68]

^[22] Ibid [69].

^[23] Ibid [70], citing Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

^[24] Sentencing remarks [71]–[72].

^[25] See [19] to [27] above.

^[26] The applicant cited Sentencing Advisory Council, ‘Sentencing Trends for Burglary in the Higher Courts of Victoria 2010–11 to 2014–15’ (Sentencing Snapshot No 183, June 2016).

^[27] Ibid [37].

^[28] Ibid [37]–[38].

^[29] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; McEwan v R; Robb v R; Dambitis v R (2013) 41 VR 330.

^[30] Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662–3 [127]; R v Boaza [1999] VSCA 126 [42].

^[31] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.

^[32] [2013] VSCA 191.

^[33] Ibid [24]. See also Doherty v The Queen [2017] VSCA 215 [45] (Beach, McLeish and Coghlan JJA).

^[34] Sentencing remarks [9].

^[35] Ibid [36].

^[36] The sentencing judge’s misdescription of the circumstances of the armed robbery appears to have been raised only with respect to the first proposed ground of appeal.

Subsequent Judicial Consideration1

Treatment Over Time

Referred to (1)